Koger v. State

SULLIVAN, Judge,

dissenting.

The Indiana RICO statute was not intended nor was it drafted to include the isolated activity of Charles Roger. The words of the statute and the positioning of those words so indicate.

Although the majority recognizes that United States v. Neapolitan (1986) 7th Cir., 791 F.2d 489, cert. denied — U.S. -, 107 S.Ct. 422, 93 L.Ed.2d 372, focuses upon conspiracy as an enhancing factor of a pattern of racketeering activity, the underlying reasoning of Neapolitan is utilized if not adopted. Neapolitan held that the federal RICO statute is a conspiracy statute and that commission of two predicate acts pursuant to a conspiracy constituted the requisite pattern of racketeering activity. In other words, two closely related criminal acts during the same single activity constitute a pattern of racketeering in the context of the overall conspiracy. A more important and dramatic distinction, however, is that the Neapolitan court stated that the federal RICO statute was entitled to a broad reading and a liberal construction, so as to effectuate its purpose— the stamping out of organized crime and racketeering. Not only is this reasoning fraught with precedential danger as to federal criminal statutes, it is contrary to the established law of this State. As did the court in Alvers v. State (1986) 1st Dist.Ind. App., 489 N.E.2d 83, trans. denied, we should note that the Indiana RICO statute is a penal statute and must be strictly construed against the state. Id. at 89.

To the extent that Neapolitan justifies its result upon the proposition that it is remedial rather than substantive, it is also inapplicable. Neapolitan views the RICO statute as a provision for enhancement of the penalty to be imposed for separately prohibited criminal conduct. Roger was convicted of but a single crime, violation of the RICO statute. He was not convicted of conspiracy, burglary or theft. His three year sentence for RICO involvement was *1259therefore not an enhancement. In Indiana, a RICO violation is a crime separate and distinct from those criminal acts which might disclose a conspiratorial pattern of racketeering activity. In contradiction to the federal statute, which emphasizes the conspiratorial aspects, the Indiana statute purports to isolate the racketeering pattern and categorize it as a separate crime. Accordingly I do not consider Neapolitan as cognizable authority in our case, either as to its reasoning, analysis or result.

As noted by our First District in Alvers v. State, supra, 489 N.E.2d 83:

“Indispensable to ascertaining the legislature’s intent is a consideration of the goals sought to be achieved and the reasons and policy underlying a statute.... Consequently, it is necessary to view a statute within the context of the entire act, rather than in isolation, when construing the statute.... In addition, words are given their plain meaning and this court may also look beyond the statute’s language to the titles and headings of the statute.” (Citations omitted) 489 N.E.2d at 88.

The Act’s title carries with it an indication of its intended scope: “Racketeer Influenced and Corrupt Organizations.” This designated target of the legislation would not seem to include participation by an individual on a single occasion even though that occasion was a part of an overall elaborate pattern of activity by other persons. The words used to define the elements of the crime also seem to not contemplate a defendant such as Roger. Indiana Code 35-45-6-2(a)(3) (Burns Code Ed.Repl.1985) as here involved punishes a defendant only if his participation itself reflects a pattern of racketeering activity. It is not sufficient if he participates in a single incident of a pattern of racketeering activity engaged in by the enterprise, but not otherwise involving the defendant.1

There is no doubt that the criminal enterprise involved here was a sophisticated and professional burglary ring which operated over a wide area and over a lengthy period. There is also no doubt that the operation was one of racketeering and that the extensive acts alleged in this case were within the purview of the RICO statute. It is significant, however, that with respect to Roger, but a single incident is applicable. The indictment against the multiple defendants in this enterprise charged conspiracy to commit six separate burglaries in six separate locations at six separate times and alleged that three of them had been consummated. Roger’s complicity concerned only a single such incident — the burglary and theft in Hardin, Ohio. Notwithstanding United States v. Neapolitan, supra, 791 F.2d 489, and other federal cases in my view Roger does not stand in the same position as the other principals in the enterprise.

The majority adopts the view that the pattern of racketeering activity must only be connected with the enterprise. That may be true in the context of the federal statute which seeks to punish the conspiracy aspect of furthering the racketeering activities of the enterprise. It is not true with respect to the Indiana statute.

Our statute requires the pattern of racketeering activity be associated with the conduct of the participant defendant. To convict Roger for participating in two incidents of racketeering activity for his agreement to travel to Ohio to burglarize Landmark Ag Supplies and steal chemicals is to stretch application of the statute beyond its reasonable intent.

Two youths without prior or subsequent criminal conduct, who break and enter a storage shed and remove a bicycle with intent to sell it to a known fence, are burglars and thieves but they are not professional racketeers.

Roger knowingly and willingly participated in an activity of the racketeering enterprise. He went to a great deal of trouble to do so, traveling to Ohio in order to consummate the burglary and theft. He was hired and paid to commit the burglary *1260and theft. He is not a naive youth who stole a bicycle and pawned it with a known receiver of stolen property. Nevertheless, he was not shown to be a professional burglar or thief. He was not shown to be a racketeer. But more importantly, he was not shown to have engaged in a pattern of racketeering activity.

I would reverse the judgment.

. It is acknowledged that some federal cases construe the scope of the federal RICO web to include single isolated criminal acts which are known by the actor to constitute a part of an overall pattern of racketeering.