At the government's request, the Sixth Circuit has published its previously unpublished decision in United States v. Odum, an appeal (after a multi-defendant jury trial) by two members of the Phantom Motorcycle Club. The decision is important because it sets forth several basic propositions of law regarding violations of the violent crimes in aid of racketeering activity statute, 18 U.S.C. § 1959 (aka, "VICAR").
The government frequently seeks to prosecute these types of "outlaw motorcycle clubs" for racketeering offenses by arguing the "club" is a "criminal organization" for purposes of the criminal RICO statute.
"An advantage of VICAR over RICO," according to the National District Attorney Association, "is that VICAR requires only one criminal act to be proven, provided that it is violent and is carried out for personal monetary gain or for status within a gang."
In moving to publish, the government argued that the Odum opinion establishes "two significant points" about VICAR for which there was previously no published law in the Sixth Circuit.
First, the opinion relied on a Second Circuit case (dating back to 1992) to set forth five elements the government must prove to establish a VICAR offense:
- that the Organization was a RICO enterprise,
- that the enterprise was engaged in racketeering activity as defined in RICO,
- that the defendant in question had a position in the enterprise,
- that the defendant committed the alleged crime of violence, and
- that his general purpose in so doing was to maintain or increase his position in the enterprise.
As an interesting aside, this is the third time since I starting writing for this blog a couple of years ago where the U.S. Attorney's Office for the E.D. Mich. has moved to publish favorable decisions (see also here and here). This may be a tactic to borrow given the frequency of unpublished decisions in the Sixth Circuit.