Establishing the fundamentals of VICAR racketeering prosecutions

At the government's request, the Sixth Circuit has published its previously unpublished decision in United States v. Odum, an appeal (after a multi-defendant jury trial) by two members of the Phantom Motorcycle Club.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:

1. that the Organization was a RICO enterprise,
2. that the enterprise was engaged in racketeering activity as defined in RICO,
3. that the defendant in question had a position in the enterprise,
4. that the defendant committed the alleged crime of violence, and
5. that his general purpose in so doing was to maintain or increase his position in the enterprise.

Second – and likely the primary reason the government sought publication – is that the court held that the government does not have to prove that the defendant actually knew that the enterprise was engaged in racketeering to establish a VICAR offense. The court reasoned that "grafting [a] knowledge-of-racketeering requirement onto the statute would allow acts contemplated by VICAR to escape prosecution under the statute." For example, if so interpreted, "VICAR might not cover an individual who commits a violent crime as a part of gaining entry to a gang but who does not have specific knowledge of the group's racketeering activities." Additionally, the court emphasized that "[s]everal courts have explicitly applied RICO's 'liberal construction' rule to VICAR, as VICAR was enacted for a similar remedial purpose."

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.