RALPH LEON JACKSON, PETITIONER V. UNITED STATES OF AMERICA No. 89-6364 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1A-9A) is unreported, but the judgment is noted at 884 F.2d 581 (Table). JURISDICTION The judgment of the court of appeals was entered on September 1, 1989. A petition for rehearing was denied on November 13, 1989. The petition for a writ of certiorari was filed on December 4, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a count charging petitioner with conspiracy to violate the RICO statute, 18 U.S.C. 1962(d), was barred by the general five-year statute of limitations, 18 U.S.C. 3282. STATEMENT After a jury trial in the United States District Court for the Eastern District of Michigan, petitioner was convicted of conspiracy to participate in the affairs of an enterprise through racketeering, in violation of 18 U.S.C. 1962(d), and was sentenced to three years' imprisonment. The court of appeals affirmed. Pet. App. 1A-9A. /1/ 1. The court of appeals summarized the evidence in an unpublished per curiam opinion; it showed that the case centered on the operations of the Young Boys Incorporated (YBI), a criminal organization in Detroit, Michigan, that engaged in the purchase and sale of controlled substances, primarily heroin and cocaine. In addition to its drug trafficking, the enterprise also engaged in violence and murder against its own members to enforce discipline and against outsiders to reduce competition. Pet. App. 1A. It is undisputed that in December 1981, petitioner, a police officer in Highland Park, Michigan, stopped a car driven by Raymond Peoples, a member of the YBI organization. See Pet. 5. The police found drugs during a search of Peoples' car. Ibid. The indictment charged that the next day petitioner solicited a payment of $10,000 from YBI to resolve the pending drug charge against Peoples. Superseding Indictment 8, Crim. No. 87-80648 (Oct. 30, 1987). The evidence at trial, as summarized in the government's court of appeals brief, showed that petitioner also received the money as payment for his cooperation in allowing YBI to distribute narcotics in Highland Park. Gov't C.A. Br. 39-40. 2. Petitioner was initially charged in July 1987; a superseding indictment was returned in October 1987. Pet. App. 2A. The RICO conspiracy count alleged that petitioner and his co-conspirators "agreed to personally join the conspiracy by conducting and participating in its affairs and agreed to the commission of at least two predicate acts of racketeering." Superseding Indictment, supra, at 6. The acts of racketeering that the indictment identified were multiple drug distribution offenses and seven murders. Id. at 7. The conspiracy count then alleged five overt acts and incorporated 37 additional overt acts from another count. Overt Acts 3 and 4 of the RICO conspiracy count alleged that petitioner had arrested Peoples and accepted a $10,000 payment the next day to drop the case against him. Id. at 7-8. Raising the point for the first time on appeal, petitioner contended that since his arrest of Peoples and his acceptance of a bribe to drop the charges occurred more than five years before the indictment was returned, the RICO conspiracy count was time-barred as to him. The court of appeals rejected this claim, noting that a RICO conspiracy conviction requires only one predicate act within the five-year limitations period. Pet. App. 5A-6A. ARGUMENT Petitioner renews his contention made in the court of appeals that his conviction for RICO conspiracy was barred by the general five-year statute of limitations in 18 U.S.C. 3282. As the court below found, this claim is without merit. /2/ a. Petitioner's argument confuses the "predicate acts" that evidence racketeering with the "overt acts" that demonstrate the existence of a conspiracy. Here, the indictment charges the acceptance of a bribe to drop charges against Raymond Peoples as an "overt act" in furtherance of the RICO conspiracy, not as a "predicate act" of racketeering. /3/ The "predicate acts" upon which petitioner's statute of limitations claim must rest are alleged in the indictment to be the distribution of drugs "on multiple occasions between December 1980 through August 18, 1987" and seven specific murders dating from May 1, 1980, through July 17, 1984. The indictment on its face thus charges predicate acts well within the five years preceding the 1987 indictment and thus within the limitations period that petitioner argues is required for the charging of a RICO conspiracy. b. In any event, petitioner's assumption that the indictment must charge that he committed or agreed to commit at least one predicate act within the five-year limitations period is itself incorrect. That rule applies to defendants charged with substantive RICO violations; it does not apply to defendants alleged to have participated in a conspiracy to violate RICO. See United States v. Torres Lopez, 851 F.2d 520, 524-525 (1st Cir. 1988), cert. denied, 109 S. Ct. 1144 (1989); United States v. Persico, 832 F.2d 705, 713-714 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988). For purposes of computing the statute of limitations, conspiracies are not completed until their aims have been accomplished or abandoned. United States v. Kissel, 218 U.S. 601, 607-608, 610 (1910); United States v. Dynalectric Co., 859 F.2d 1559, 1563-1564 (11th Cir. 1988), cert. denied, 109 S. Ct. 1642 (1989); Persico, 832 F.2d at 713; cf. Toussie v. United States, 397 U.S. 112, 115, 122 (1970). At this Court has explained, conspiracy -- unlike the typical substantive crime -- is a continuing offense that is concluded only when its purposes have been achieved or abandoned, because "(i)t is in the nature of a conspiracy that each day's acts bring a renewed threat of the substantive evil Congress sought to prevent." Toussie, 397 U.S. at 122. RICO conspiracies are treated like other conspiracies and not like RICO substantive violations. Thus, in a RICO conspiracy prosecution the government need only show that the conspiracy continued to within five years of the indictment, /4/ but not that the defendant agreed to the commission of a specific act of racketeering within that time period. United States v. Rastelli, 870 F.2d 822, 838 (2d Cir.), cert. denied, 110 S. Ct. 515 (1989); United States v. Salerno, 868 F.2d 524, 534 (2d Cir.), cert. denied, 110 S. Ct. 56 (1989); Torres Lopez, 851 F.2d at 525; Persico, 832 F.2d at 713-714; United States v. Coia, 719 F.2d 1120, 1124 (11th Cir. 1983), cert. denied, 466 U.S. 973 (1984). In this case, petitioner does not challenge the sufficiency of the government's evidence that the conspiracy continued well into the statutory limitations period, and he does not claim that he withdrew from the conspiracy more than five years before the indictment was returned. Consequently, his statute of limitations challenge to the RICO conspiracy count must fail. c. Nor is petitioner correct in asserting that the decision below conflicts with the decisions of any other circuit. In United States v. Pepe, 747 F.2d 632, 645, 663-664 (11th Cir. 1984), the defendant claimed that his conviction for a substantive RICO offense, participating in the conduct of a racketeering enterprise, was time-barred because one of the predicate acts fell outside the general five-year limitations period. Pepe does not aid petitioner because, as noted above, he was charged with a conspiracy to violate the RICO statute, and not a substantive RICO offense. For the same reason, the other circuit decisions cited by petitioner (Pet. 11) are not contrary to the instant case. /5/ Like Pepe, they apply the statute of limitations to substantive RICO violations and conclude, in discussions wholly irrelevant to the construction of the RICO conspiracy provision, that at least one charged predicate act must satisfy the five-year statute of limitations. d. Finally, petitioner is also incorrect in his contention (Pet. 12) that the decision below conflicts with decisions of this Court. See Toussie, supra; United States v. McElvain, 272 U.S. 633 (1926); United States v. Cook, 84 U.S. (17 Wall.) 168 (1872). The cases petitioner cites recognize that statutes of limitations must be applied as Congress intended, a point with which we have no quarrel. None supports the notion, however, that an indictment charging a person with RICO conspiracy must be returned within five years of his own predicate act of racketeering. /6/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General SARA CRISCITELLI Attorney FEBRUARY 1990 /1/ Petitioner was charged with 25 others in an indictment that included counts charging a substantive RICO violation, RICO conspiracy, and conspiracy to possess with intent to distribute hereoin. Nineteen defendants either pleaded guilty or had fled before trial. Petitioner and his remaining six co-defendants went to trial only on the RICO conspiracy and heroin conspiracy charges; two co-defendants were acquitted on both charges. The others were variously convicted, and their convictions were affirmed by the court of appeals. Pet. App. 1A-9A; see Gov't C.A. Br. 3. /2/ We note at the outset that petitioner waived his statute of limitations claim by failing to raise it in the district court. See Fed. R. Crim. P. 12(b) and (f); United States v. Walsh, 700 F.2d 846, 855-856 (2d Cir.), cert. denied, 464 U.S. 825 (1983); Wright, Federal Practice and Procedure Section 193, at 705-708 (1982 ed. & Supp. 1989). /3/ 18 U.S.C. 1962(d) does not in fact require an overt act as an element of conspiracy to violate the RICO statute. See United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, 109 S.Ct. 138 (1988); United States v. Tripp, 782 F.2d 38, 41 (6th Cir.), cert. denied, 475 U.S. 1128 (1986); United States v. Pepe, 747 F.2d 632, 659 (11th Cir. 1984); United States v. Barton, 647 F.2d 224, 237 (2d Cir.), cert. denied, 454 U.S. 857 (1981). /4/ The instant indictment clearly satisfies this requirement. /5/ See United States v. Salerno, 868 F.2d 524, 534 (2d Cir.), cert. denied, 110 S. Ct. 56 (1989); United States v. Torres Lopez, 851 F.2d 520, 524-525 (1st Cir. 1988), cert. denied, 109 S. Ct. 1144 (1989); United States v. Srulowitz, 785 F.2d 382, 390 (2d Cir. 1986), cert. denied, 484 U.S. 853 (1987); Walsh, 700 F.2d at 851. /6/ Because the indictment was brought within the limitations period, petitioner's reliance (Pet. 13) on United States v. Marion, 404 U.S. 307, 322 (1971), for the proposition that the statute of limitations is "the primary guarantee against overly stale criminal charges," does not aid him. To the contrary, because the indictment here was brought within the time permitted by the statute of limitations, petitioner's charges that too much time had passed (Pet. 14) are futile. Petitioner's related suggestion (Pet. 13) that the government delayed securing the indictment to obtain a tactical advantage over him was not raised in the courts below; in any event, it has no factual support. Finally, petitioner alludes (Pet. 13-14) to the government's proof of other bad acts and to his joinder with other defendants for trial. As to the first point, petitioner argued to the court of appeals that the trial court should not have admitted Fed. R. Evid. 404(b) evidence. The court of appeals rejected his contention, holding that the evidence was "properly admitted * * * to show (petitioner's) plan and intent to participate in the Young Boys organization." Pet. App. 5A. Petitioner presents no reason why the conclusion below was incorrect; further review is therefore unwarranted. Regarding the second point, petitioner did not contest below his joinder with his co-defendants. Nor is there any reason to conclude that his joinder in the indictment and trial with co-conspirators on trial for their YBI activities was impermissible under Fed. R. Crim. P. 8(b) or that the district court should have exercised its discretion to sever the trials under Fed. R. Crim. P. 14.