State v. Young

Locher, J.,

dissenting. The majority, in the first paragraph of its opinion, properly recognizes the necessity for R. C. 2923.04. Yet, before commenting that the statute in the instant cause does not pass constitutional muster, they preface their opinion with a disclaimer for their finding of un*383constitutionality. That determination is disappointing considering that the aim of the statute is to effectively combat the abhorrent escalation of organized crime, which is often accompanied by acts of terrorism or illegal use of group pressure in order to achieve unlawful ends.

The majority did address the issue of vagueness as it pertains to R. C. 2923.04, but they failed to discuss the statute on all the issues presented to this court. Additional issues questioning whether the statute is overbroad in its scope or cruel and unusual in its punishment, or both, were also properly raised and thereby warrant discussion.

The majority’s failure to address all the issues not only gives little guidance to the General Assembly in the probable redrafting of this statute, but also precipitates additional prolonged “piecemeal” judicial analysis and determinations on matters presently before this court.

These two cases and those 16 causes held by this court pending the outcome of this decision—encompassing the gamut of offenses, which includes drugs, prostitution, pornography, extortion, influencing public officials, as well as the commonplace murder, theft and assault—have already labored through the crucible of appeal and warrant more than a summary dismissal of the total statute on one limited ground. If new legislation will be forthcoming with issues now extant, but unaddressed by the majority, a final determination as to the constitutionality of any new legislation in this area will, regrettably, remain in limbo without resolution for many upcoming years.

In my view, R. C. 2923.04 is constitutional not only on the issue of vagueness, but also on the issue of overbreadth and also on the charge that the statute at bar is cruel and unusual in the punishment to be meted out upon conviction.

In prelude to a separate discussion of the three issues presented herein, I take exception to the majority’s approach. They advance a microscopic view of certain words and phrases in the statute and then enlarge those words and phrases to disproportionate extremes beyond their plain meaning and thereby find constitutional dilemmas within the statute.

Furthermore, the majority and the appellees are con*384sistently jousting with phantoms when they conjure up interesting but incredibly naive and trivial hypotheticals in order to negate the statute in toto. If not kept within legitimate confines, every statute could be assailed in this fashion. To follow the analysis of the majority to its logical conclusion would result in a negation of any enforceable yet meaningful law in this area.

Organized crime envenoms our everyday life and unobtrusively robs each individual.8 Inexorably, the hand of the mob surreptitiously dips into everyone’s pocket, pilfering millions annually to a degree which dwarfs the state’s budget.

The General Assembly has picked up the gauntlet in this area, and the prosecutors have steadfastly acknowledged the combat in the legal trenches, while this court sits timorously by and cancels the contest. The result is the condonation of the premier malady eroding the vitals of society in all shapes and forms, to wit, the arrogant strength of organized criminal activity.

I will now embark upon the legal and philosophical bases, which buttress the constitutionality of the present statute.

I.

It is rudimentary that a legislative enactment is entitled to a strong presumption of constitutionality. State v. Renalist, Inc. (1978), 56 Ohio St. 2d 276, 278, and State, ex rel. Jackman, v. Court of Common Pleas (1967), 9 Ohio St. 2d 159, 161.

The Court of Appeals, in the Forbes case, found R. C. 2923.04 to be vague and overbroad, and, in the Young case, found R. C. 2923.04(A)(1), (2), (3) and (5) void for vagueness. *385The statute at bar, when given a reasonable construction and fulfillment of its legislative intent and purpose, is definitely constitutional.

The United States Supreme Court, when pressed by a similar dilemma, stated, in United States v. Harriss (1954), 347 U.S. 612, at page 618, that:

“***[I]f this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction. This was the course adopted in Screws v. United States, 325 U.S. 91, upholding the definiteness of the Civil Rights Act.” (Emphasis added.)

Contra to the majority opinion, R. C. 2923.04 is not void for vagueness or overbroad in its scope when given a reasonable construction.

The doctrines of vagueness and overbreadth are not always distinguishable and often overlap. The United States Supreme Court, in Grayned v. Rockford (1972), 408 U.S. 104, at pages 108 and 114, distinguished the vagueness and over-breadth doctrines, explaining that “[i]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined,” whereas “[a] clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.”

That same court, in Colten v. Kentucky (1972), 407 U.S. 104, at page 110, explained that:

“ * * *The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.”

Furthermore, the element of intent has often preserved a statute from a challenge of vagueness, since the scienter requirement serves to relieve the statute of the claim that it punishes without warning an offense of which the accused is unaware. Omaechevarria v. Idaho (1918), 246 U.S. 343; Hygrade Provision Co. v. Sherman (1925), 266 U.S. 497; Gorin v. United States (1941), 312 U.S. 19; Screws v. United States (1945), 325 U.S. 91; American Communications Assn. *386C.I.O. v. Douds (1950), 339 U.S. 382; Boyce Motor Lines, Inc., v. United States (1952), 342 U.S. 337; United States v. National Dairy Products Corp. (1963), 372 U.S. 29; Cole v. Richardson (1972), 405 U.S. 676; and Colten v. Kentucky, supra.

The statute at bar, R. C. 2923.04, reads, in pertinent part, as follows:

“(A) No person, with purpose to establish or maintain a criminal syndicate or to facilitate any of its activities***.” (Emphasis added.)

“Purposely” is defined in R. C. 2901.22(A) as follows:

“A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.” (Emphasis added.)

The statute, in the instant cause, specifically requires a purposeful act for both the establishment and maintenance of the criminal syndicate. “Purpose,” as used in R. C. 2923.04, is synonymous with “intent.” See White v. Maxwell (1963), 174 Ohio St. 186. The element of scienter is not absent from R. C. 2923.04 but is a necessary element thereof.

Furthermore, in subsection (C), the statute, in great detail, refers to specific sections of the Criminal Code. Many of the specific sections referred to in subsection (C) require the crime to be performed with specific intent.9

*387In my opinion, the plain meaning of this statute, including its reference to specific sections of the Criminal Code, clearly mandates that the proscribed acts be done with specific intent and thus is outside the parameters of objections on the basis of vagueness.

This court, in Cincinnati v. Hoffman (1972), 31 Ohio St. 2d 163, 166, has stated that: “***[T]he injection of scienter provides a precise and comprehensible standard which is well within the ability of a person of common intelligence to understand.”

The majority and the appellees maintain that certain words and phrases in R. C. 2923.04 are impermissibly vague. When discussing vagueness of certain words and phrases similar to the words and phrases in the statute at bar, the United States Supreme Court, in United States Civil Service Comm. v. National Assn. of Letter Carriers (1973), 413 U.S. 548, stated, at pages 577-579, as follows:

“There might be quibbles about the meaning of taking an ‘active part in managing’ or about ‘actively participating in***fund raising’***but there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.”

So, too, with the statute at bar, the purpose of the statute as a whole does not lend itself to concise specific wording.10

The majority and the appellees go to great lengths in soothsaying a “parade of horribles” in which marginal cases should invalidate the statute at bar as being impermissibly vague.

*388It is firmly established that, if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be made where doubts might arise. United States v. Petrillo (1947), 332 U.S. 1, 7; Jordan v. De George (1951), 341 U.S. 223, 231.

This court, in Cincinnati v. Hoffman, supra, followed the above rationale of not allowing a “parade of horribles” to invalidate the statute. Paragraph three of the syllabus in that case reads:

“Where, under one state of facts, the operation of a statute is constitutional, a court will not declare it invalid because under another state of facts, not involved, its operation would be unconstitutional. (State, ex rel. Herbert, v. Ferguson, 142 Ohio St. 496.)”

Not all laws are perfectly written, and to conjure up numerous nuances has a counteracting effect on the very purpose of the statute at bar. We should address ourselves to the intent and purpose of the law rather than be bogged down with the minutia of a prophecy of dire consequences by fecund imaginations of those who strive to derogate the meaning of the law.

Furthermore, the Committee Comment to R. C. Chapter 2923 states that R. C. 2923.04 is based largely upon the proposed federal Criminal Code, and, therefore, analysis of the federal statute is quite appropriate. At first blush, it is cognizable that the federal statutes are primarily directed at controlling “organized crime,” much akin to R. C. 2923.04.

Section 1952(a)(3), Title 18, U.S. Code, racketeering, prohibits interstate travel with intent to promote, manage, establish, carry on or facilitate unlawful activities.

Rather than making a determination that the federal statute is vague, the constitutionality of that section has been repeatedly upheld. The federal courts found the statute to prescribe clear standards for men of ordinary intelligence. United States v. Villano (C.A. 10, 1976), 529 F. 2d 1046, 1055, certiorari denied 426 U.S. 953; Bass v. United States (C.A. 8, 1963), 324 F. 2d 168, 173; United States v. Barrow (C.A. 3, 1966), 363 F. 2d 62, 65, certiorari denied 385 U.S. 1001; United States v. Bash (D.C. Ind. 1966), 258 F. Supp. *389807, 809, affirmed United States v. Miller (C.A. 7,1967), 379 F. 2d 483, certiorari denied 389 U.S. 930; United States v. Teemer (D.C. W.Va. 1963), 214 F. Supp. 952, 956.

The purpose and the language employed in both the federal statute and the statute at bar are similar. The Court of Appeals, in the Forbes case, dismissed any analysis of the federal statute in conjunction with the Ohio statute, on the grounds that the federal statute expressly limits the imposition of criminal liability to unlawful activity, whereas the Ohio statute does not so expressly limit itself.

As noted previously, it is the duty of this court, according to United States v. Harriss, supra (347 U.S. 612), to reasonably construe a statute to save it from unconstitutional claims. Thus, I readily note that it was never the intent of the General Assembly to punish innocent behavior. Furthermore, as previously discussed herein, to apply the scienter requirement to the commission of legal activities would be to expand the statute beyond its intended scope.11

The appellees, commenting upon the constitutionality of R. C. 2923.04, question the use of “five or more persons” as a jurisdictional requirement to invoke the statute at bar. I find the number “five” to be rationally related to the end sought by the General Assembly in enacting R. C. 2923.04. The number “five” as a jurisdictional requirement is present in at least three federal anti-criminal statutes, all of which have been held valid. See Sections 1511(b)(l)(ii) and 1955(b)(1)(h), Title 18, U.S. Code, and Section 848(b)(2)(A), Title 21, U.S. Code.

For the foregoing reasons, a claim of vagueness in the instant cause is without merit. The language used contains a sufficient definite warning when measured by common understanding and practice. Even more simply stated, this court, in Cincinnati v. Hoffman, supra, when construing a similarly related statute, stated, at page 168:

“ ‘ “***We believe that citizens who desire to obey the *390statute will have no difficulty in understanding it* * * ” Colten v. Commonwealth, 467 S. W. 2d 374, 378 (Ky. 1971).’ ” (Emphasis sic.)

II.

Appellees further assert that the statute in the instant cause is overbroad in its scope. The overbreadth doctrine may not appropriately be invoked here in this manner.

The United States Supreme Court, in discussing the overbreadth doctrine in Broadrick v. Oklahoma (1973), 413 U.S. 601, stated, at pages 610-613:

“Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.***A closely related principle is that constitutional rights are personal and may not be asserted vicariously. * * *

“In the past, the Court has recognized some limited exceptions to these principles, but only because of the most ‘weighty countervailing policies.’***Another exception has been carved out in the area of the First Amendment.

ti * * *

“ * * * Application of the overbreadth doctrine in this manner is manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial over-breadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.***” (Emphasis added.)

A reasonable construction of the statute at bar to include a scienter requirement, coupled with the fact that R. C. 2923.04 should only apply to illegal and not lawful activities, insulate this statute from a claim of overbreadth.

The statute at bar prohibits criminal activity and not constitutionally protected activity. As the statute specifically states, activities such as bribery, extortion, promoting prostitution, theft, illegal trafficking in drugs and lending at usurious interest rates are clearly prohibited.

Furthermore, the statute is claimed to be so broad that *391even minor deviations or improper actions could result in a first-degree felony.12

I feel this interpretation is improper since the primary impetus of the statute is not directed at minor deviations from the law, but rather is to prevent the operation of entrenched criminal syndicates, which results in illegal and financially lucrative enterprises.13

The definition of “organized criminal activity” in R. C. 109.83(A) reads, in pertinent part, as follows:

“***‘Organized criminal activity’ means any combination or conspiracy to engage in criminal activity as a significant source of income or livelihood***(Emphasis added.)

Thus, even by definition, R. C. 2923.04 is limited to those activities which result in “a significant source of income or livelihood.”

As noted herein, the federal anti-racketeering statute is much akin to the Ohio statute in language, purpose and design. The federal courts, when faced with similar arguments, dismissed them by noting that the anti-racketeering statute was not intended to include an occasional “floating crap game” or every “sporadic poker game.” *392United States v. Teemer, supra (214 F. Supp. 952). See United States v. Harris (D.C. Va. 1967), 275 F. Supp. 161. Rather, the statute at bar is primarily designed to stem the clandestine flow of illegal profits of complicated networks of crime.

Accordingly, I find that R. C. 2923.04 is not overbroad in its scope in this instance.

III.

Appellees further assert that R. C. 2923.04 violates the Eighth Amendment’s prohibition against cruel and unusual punishment. A violation of the statute at bar constitutes a first-degree felony.

It is axiomatic that the General Assembly is lodged with the power to define, classify and prescribe punishment for crimes committed within the state. State v. O’Mara (1922), 105 Ohio St. 94, paragraph one of the syllabus, and Ex Parte Fleming (1930), 123 Ohio St. 16, 20.

The court, in United States, ex rel. Bongiorno, v. Ragen (D.C. Ill. 1944), 54 F. Supp. 973, referred to the earlier case of Weems v. United States (1910), 217 U.S. 349, wherein the United States Supreme Court stated that the Eighth Amendment is progressive and should be regarded as a precept that punishment for crime should be graduated and proportioned to the offense committed.

In Rummel v. Estelle (1980), — U. S. —, 63 L. Ed. 2d 382, the United States Supreme Court stated, at page 391:

“Given the unique nature of the punishments considered in Weems14 and in the death-penalty cases, one could argue *393without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a legislative prerogative. ” (Emphasis added.)

A violation of the statute at bar, a felony of the first degree, results in an indeterminate sentence with a penalty (R. C. 2929.11). Each of the unlawful activities prohibited by R. C. 2923.04 constitutes a crime when committed by a single individual. The statute at bar upgrades the sentence in accordance with the gravity of the crime, when the unlawful activities are performed by five or more individuals who, on a continuing basis, derive significant income or gain therefrom.

The General Assembly recognized the state’s compelling interest in preventing any furtherance of these pervasive criminal syndicates which continue to grow and yield lucrative financial gain.15 Accordingly, the punishment meted out for violations of this statute is reasonable and not violative of the Eighth Amendment.

Accordingly, the judgments of the Courts of Appeals should be reversed.

The United States Chamber of Commerce gives examples of how organized crime affects our everyday life by its indirect imposition on legitimate business:

“Spiraling insurance costs that stem from the underworld’s unique set of competitive methods; inequitable tax burdens resulting from the considerable tax-dodging ability of racketeer entrepreneurs; increasing consumer anger that is evoked when syndicate-owned enterprises supply inferior goods and services or when legitimate enterprises must raise prices to compensate for underworld harassment; growing reluctance by some commercial finance companies to extend credit to businesses unfortunate enough to be operating in a racketeer-infested industry.” Chamber of Commerce of the United States, Deskbook on Organized Crime (Rev. Ed. 1972), 15.

For example, all the sections below require a scienter element.

R. C. 2907.21, in pertinent part, reads:

“(A) No person shall knovnngly:

“(1) Compel another to engage in sexual activity for hire.” (Emphasis added.)

R. C. 2907.22, as pertinent, provides:

“(A) No person shall knovnngly:

“(1) Establish, maintain, operate, manage, supervise, control, or have an interest in a brothel.” (Emphasis added.)

R. C. 2907.23, pertaining to procuring, in pertinent part, reads:

“(A) No person, knovnngly and for gain, shall do* “the following.” (Emphasis added.)

R. C. 2913.01, pertaining to theft crimes, defines “deception” as “knovnngly.”

R. C. 2915.02, dealing with gambling, provides, in part, as follows:

“(A) (1) [k]nowlingly* * ‘engage in conduct that facilitates* * ‘bookmaking* * *.” (Emphasis added.)

*387R. C. 2923.04 is premised upon those crimes which require specific intent, but only when done by five or more persons on a continuing basis in which a significant income or livelihood is produced.

By its very nature, “organized crime” is a very difficult phenomenon to define. “For most purposes the term ‘organized crime’ has no legal configuration, although some specific attributes of syndicated criminal operations can be accurately defined.” National Association of Attorneys General, Organized Crime Control Legislation (1975), 3. Thus, the General Assembly did an admirable job in defining the slippery concept known as “organized crime.”

This writer is cognizant oí Amusement Devices Assn. v. Ohio (S.D. Ohio 1977), 443 F. Supp. 1040, which declared only R. C. 2923.04(A)(4) unconstitutional. The presence of the scienter requirement, coupled with the common-sense approach that only unlawful activity is prohibited, results in the Amusement Devices Assn, decision being inapposite herein.

The appellees, in case No. 79-1124, who claim the statute at bar to be overbroad, assert the following “marginal” examples as rationale for declaring the statute unconstitutional:

“It could include the family of five who return home from their vacation each year with an unpurchased towel from their favorite motel” and “the two-table bridge club composed of suburban housewives who, once a month, travel downtown for a one-hour luncheon and fail to deposit dimes in the parking meter.”

The cases currently awaiting this decision and the Young case herein reflect the seriousness of the crimes that are to be prohibited by R. C. 2923.04.

In State v. Young, the net from the criminal activities in a seven-month period assertedly exceeded $100,000. State v. Houlihan, supra, involved a gambling operation where, as the Court of Appeals therein stated, “there would be $500.00 riding on every roll of the dice” and “this would make the house take $200.00 per hour and a six-hour night a take home of $1200 for the house.” State v. Byars, supra, involved an organized syndicate of nine persons engaged in trafficking of drugs. Another series of cases, currently pending in the First District Court of Appeals, involved syndicated organizations of car thieves, i.e., persons who would strip stolen cars and sell the parts to certain used car dealers who then would sell the parts to the general public, which operation involved several hundred thousand dollars over a relatively short period of time.

Thus, the statute is directed and applied toward limiting the highly sophisticated and widespread phenomenon, best described as “organized crime.”

In Weems, supra, the petitioner therein successfully attacked the imposition of punishment known as “cadena temporal” for the crime of falsifying a public and official document. The United States Supreme Court explicitly described the penalty meted out in Weems, at page 366, when it stated:

“* * *Its minimum degree is confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council. These parts of his penalty endure for the term of imprisonment. For other parts there is no intermission. His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicile without giving notice to the ‘authority immediately in charge of his surveillance,’ and without permission in writing.”

“ * * * Organized crime affects the lives of millions of Americans, but because it desperately preserves its invisibility many, perhaps most, Americans are not aware how they are affected, or even that they are affected at all. The price of a loaf of bread may go up one cent as the result of an organized crime conspiracy, but a housewife has no way of knowing why she is paying more. If organized criminals paid income tax on every cent of their vast earnings everybody’s tax bill would go down, but no one knows how much.” Conklin, ed., The Crime Establishment, Organized Crime and American Society (1973), 29.