Is Gang Membership a Crime? How RICO Laws Turn Groups into Gangs

By Kerry Martin

Associate Editor, Vol. 24

On June 18, 2018, in a courtroom at the Theodore Levin U.S. Courthouse in downtown Detroit, at the end of a long pretrial argument on a matter of evidence, defendant Corey Bailey stood up. The courtroom was nearly full: this was preparation for the blockbuster trial of the summer in Michigan’s Eastern District, the case of the Seven Mile Bloods.^[1] Bailey had been sitting near the end of a long table of with his co-defendants, all Black, and each of their defense attorneys, almost all White. The attorneys had been vocal and at times irate during the proceeding, but the defendants had all sat in silence—until Bailey stood up and spoke.

“Your Honor,” he said, turning to Judge George Steeh. He stated some of his thoughts about the case as a whole, and then said this: “I’m okay with being a Seven Mile Blood, because that’s not a crime.”^[2]

Is he right?

His argument is an uphill battle against the statute under which he and his co-defendants were all charged: conspiracy under the Racketeer Influenced and Corrupt Organizations Act, or RICO conspiracy.^[3] A law that gained recognition as prosecutors’ most powerful tool against the highly organized and hierarchical Italian mafia, RICO conspiracy has now been stretched far beyond that.^[4] RICO conspiracy is now used as a blunt instrument for sweeping up young men of color who are in any way associated with the one of the many small-fry “gangs” that have filled the void of organized crime in many American cities, including Detroit.^[5] It is not supposed to criminalize mere membership in a gang, but it comes dangerously close to doing so.

RICO conspiracy comes with the astronomical sentences—up to twenty years in prison, which can be bumped up to life in prison or the death penalty by aggravating circumstances.

This expansion of RICO conspiracy is the result of legal and social realities. The legal realities are the vague, minimal elements of the RICO conspiracy statute and the breadth with which courts have chosen to read it.^[6] The social reality is that when groups of low-income racial minorities spend time together and adopt symbols to signify their unity, sometimes but not always including a “gang” title, law enforcement will view each one of them as a “gang member” with its full criminal stigma.

Both of those realities came to bear in the Seven Mile Bloods case. The last indictment before trial charged all twenty-one defendants with RICO conspiracy.^[7] So far, only two have been acquitted of RICO conspiracy, and two others have entered pleas of not guilty.^[8] At least nine others have pleaded guilty to RICO conspiracy, and four more have been found guilty of RICO conspiracy by a jury, including Corey Bailey.^[9] This high conviction rate is attributable to the ease with which prosecutors can prove the elements of RICO conspiracy, especially when a defendant’s professed gang membership is clear.

The elements of criminal RICO conspiracy are easily met. The statute simply states that “[i]t shall be unlawful for any person to conspire to violate” any of the substantive racketeering provisions described earlier in the statute.^[10] Racketeering encompasses a broad array of crimes, including drug trafficking, robbery, and murder, whether completed or attempted.^[11]

Case law has broken the RICO conspiracy statute down into five essential elements:

1. That the association in question existed as an enterprise;
2. That the activities of the enterprise affected interstate commerce;
3. That the defendant associated with the enterprise;
4. That the defendant knowingly agreed to participate in the conduct of the enterprise; and
5. That the defendant and at least one other conspirator agreed that either the defendant or a co-conspirator would commit at least two acts of racketeering in furtherance of the enterprise.^[12]

This fifth element is the closest thing to an “overt act” requirement, but it is a very low hurdle: the “agreement” can simply be an understanding between a defendant and any other alleged gang member that anyone in the gang would commit two racketeering acts.

For example, if Adam agrees on two occasions to help his co-gang-member Bob sell drugs, maybe by referring two buyers to Bob, then Adam has become liable for this fifth element of RICO conspiracy—and most likely liable for all other elements. Adam need not have committed any acts besides this, but as long as some kind of “enterprise” exists (like a “gang”), and Adam associated with the enterprise (which can be inferred from gang signs, colors, tattoos, social media posts, and more^[13]), and Adam agreed to participate in its conduct (which can be inferred from the agreement to commit two acts of racketeering^[14]), then Adam is guilty of RICO conspiracy, punishable by up to 20 years in prison.

The U.S. Supreme Court has upheld this broad interpretation of RICO conspiracy. In Salinas v. United States, Justice Kennedy wrote for the unanimous court:

Section 1962(d) . . . is even more comprehensive than the general conspiracy provision applicable to federal crimes . . . since it contains no requirement of an overt or specific act . . . [RICO] conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself.^[15]

U.S. attorneys seem to have taken this reading of RICO conspiracy as carte blanche from the highest court in the land. Accordingly, lower courts have been loathe to place limits on liability for RICO conspiracy, and instead have rubber-stamped its use as a prosecutorial dragnet.^[16] This judicial erosion of the elements of RICO conspiracy has turned the statute into more powerful a weapon than was ever intended. For prosecutors nowadays, RICO conspiracy is like fishing with dynamite.

Take the 2014 case United States v. Campbell.^[17] Three allegations were made against Edward Campbell to support a charge of RICO conspiracy: “that he regularly sold cocaine and marijuana, that he had been found in possession of a plastic bag containing numerous individually wrapped bags of crack cocaine, and that a photograph posted to a MySpace page showed him making a hand sign signifying membership in [a gang].”^[18]

As evidence, one gang member witness testified that “he saw Campbell sell cocaine at a ‘dope house’ run by Campbell’s co-defendant, an alleged leader of the enterprise.”^[19] When Campbell was found with the bags of crack, his cousin, another gang member, was in the apartment.^[20] And one witness’s testimony also alleged that Campbell participated in a drive-by shooting, which Campbell denied.^[21] Despite there being no further evidence that these acts were done in furtherance of the gang, the court affirmed his conviction for RICO conspiracy, ruling that a “rational juror could infer from this evidence that Campbell agreed that he or someone else would commit two RICO predicate acts.”^[22]

Is this what the law of RICO conspiracy was designed for? To maximize sentences for drug and gun offenses for anyone who dares associate in any way with a gang? Federal sentences for drug and gun crimes are high enough already.^[23] I find it difficult to see the added value of charging RICO conspiracy in many of these cases—other than to assist an inference of guilt-by-association.

Perhaps that is what makes RICO conspiracy such a powerful tool: it is a crime with a built-in propensity inference. Normally, the rule against character evidence works to prevent juries from thinking that a defendant is the “kind of person” more likely to do something.^[24] But in RICO conspiracy, being that “kind of person” is essentially an element of the crime. Charging RICO conspiracy makes all evidence that carries even a hint of gang relation relevant and admissible.^[25]

This type of evidence inflames racial bias. Tattoos and hand signals on Black and Brown bodies are more likely to be viewed as gang-related. Boasts of crime by Black and Brown rappers in their lyrics and music videos are more likely to be taken at face value. Symbols, emojis, and slang by Black and Brown social media users are more likely to be construed as coded language between gang members. Would any of this be true if the defendants were White?

Charges of RICO conspiracy lay bare an entire life: how you dress, what your tattoos and rap lyrics mean, what you post online, where you spend your free-time, who your friends and family are. All of this is on table for prosecutors as they cook their story of how you furthered your gang’s activities. With racial bias working in prosecutors’ favor, a RICO conviction is an easy win. And if it goes to a jury and they don’t get you for RICO, they still might see enough evidence of what a bad person you are to make them think that you deserve to get locked up anyway.

Maybe it is a crime to be a Seven Mile Blood.

^[1] For a detailed, multi-part exposé on the Seven Mile Bloods case, see Robert Snell, Death By Instagram, Dᴇᴛʀᴏɪᴛ Fʀᴇᴇ Pʀᴇꜱꜱ, April 2018, https://www.detroitnews.com/series/deathbyinstagram/.

^[2] Based on the writer’s personal observations.

^[3] 18 U.S.C. § 1962(d).

^[4] See Tʜᴇ Mᴏʙ Mᴜꜱᴇᴜᴍ, Rudolph Giuliani, https://themobmuseum.org/notable_names/rudolph-giuliani/. (“Giuliani decided to prosecute the leaders of the [Italian mafia] families and their upper-level cohorts together under the federal Racketeer Influenced and Corrupt Organizations Act, or RICO, for allegedly conspiring to commit felonies including contract murders, loan sharking, extortion, labor racketeering and drug trafficking. It was the first time RICO, passed by Congress in 1970, was employed to prosecute a major federal case.”)

^[5] Jordan Blair Woods, Systemic Racial Bias and RICO’s Application to Criminal Street and Prison Gangs, Mɪᴄʜ. J. ᴏꜰ Rᴀᴄᴇ & Lᴀᴡ 303 (2012).

^[6] See, e.g., Salinas v. United States, 522 U.S. 52 (1997).

^[7] Sixth Superseding Indictment at 2, United States v. Arnold et al., No. 15-20652 (E.D. Mich. 2018), ECF No. 812.

^[8] Ascertained by studying the electronic docket in United States v. Arnold et al., No. 15-20652 (E.D. Mich. 2018), https://ecf.mied.uscourts.gov/cgi-bin/DktRpt.pl?282390091318012-L_1_1-1.

^[9] Id.; see also U.S. Dep’t of Justice, Four Members of the Seven Mile Bloods Street Gang Convicted of Racketeering and Other Related Offenses, Aug. 27, 2018, https://www.justice.gov/opa/pr/four-members-seven-mile-bloods-street-gang-convicted-racketeering-and-other-related-offenses.

^[10] 18 U.S.C. § 1962.

^[11] 18 U.S.C. § 1961(1)(A, D)

^[12] See, e.g., United States v. Jefferson, No. 14-20119, 2016 WL 337021, at *3 (E.D. Mich. Jan. 28, 2016), aff’d sub nom. United States v. Johnson, No. 1538, 2018 WL 1137518 (6th Cir. Mar. 2, 2018).

^[13] See, e.g., United States v. Rios, 830 F.3d 403, 421 (6th Cir. 2016), cert. denied sub nom. Casillas v. United States, 137 S. Ct. 1120, (2017) (“Gang-affiliation evidence may be highly probative of an individual’s membership in a particular gang, so it has been held admissible, in cases where the interrelationship between people is a central issue”) (internal quotation marks omitted); see also Sarah Baumgartel, The Crime of Associating with Criminals? An Argument for Extending the Reves “Operation or Management” Test to Rico Conspiracy, 97 J. Cʀɪᴍ. L. & Cʀɪᴍɪɴᴏʟᴏɢʏ 1 (2006).

^[14] See, e.g., United States v. Sinito, 723 F.2d 1250, 1261 (6th Cir. 1983) (“An agreement can be shown if the defendant objectively manifested an agreement to participate directly or indirectly in the affairs of an enterprise through the commission of two or more predicate crimes.”) (internal quotation marks omitted); United States v. Hughes, 895 F.2d 1135, 1141 (6th Cir. 1990) (“Defendants’ agreement to participate in the RICO conspiracy may be inferred from their acts.”).

^[15] Salinas, 522 U.S. at 53, 66.

^[16] See, e.g., United States v. Hughes, 895 F.2d 1135, 1140 (6th Cir. 1990) (“A conspirator need not have agreed to commit every crime within the scope of the conspiracy, so long as it is reasonable to infer that each crime was intended to further the enterprise’s affairs . . . Moreover, it is not necessary for each conspirator to participate in every phase of the criminal venture, provided there is assent to contribute to a common enterprise.”); Sinito, 723 F.2d at 1261 (“It is unnecessary that the underlying predicate acts be interrelated as long as the acts are connected to the affairs of the enterprise.”).

^[17] United States v. Campbell, 567 F. App’x 422 (6th Cir. 2014).

^[18] Id. at 423.

^[19] Id.

^[20] Id.

^[21] Id. at 424.

^[22] Id.

^[23] See, e.g., Jon Schuppe, As Drug Sentencing Debate Rages, ‘Ridiculous’ Sentences Persist, NBC Nᴇᴡꜱ, May 2, 2016, https://www.nbcnews.com/news/us-news/drug-sentencing-debate-rages-ridiculous-sentences-persist-n562386 (“Intended to sideline high-level traffickers, [federal mandatory minimum sentences] have been used to sweep thousands of nonviolent, small-time offenders into epic prison terms.”); Rachel Weiner, Judge Laments 40-year Sentence for Meth Dealer as ‘Excessive’ and ‘Wrong’, Tʜᴇ Wᴀꜱʜɪɴɢᴛᴏɴ Pᴏꜱᴛ, July 2, 2018, https://www.washingtonpost.com/local/public-safety/judge-laments-40-year-sentence-for-meth-dealer-as-excessive-and-wrong/2018/07/02/f1319b4c-7bd0-11e8-93cc-6d3beccdd7a3_story.html?utm_term=.4509e67c6cc1 (“There was no evidence that Turner carried a gun or was involved in a situation where guns were used. But [Turner being in the presence of guns] resulted in convictions on two counts of having a firearm while dealing drugs. That extended his sentence by 30 years, because the two mandatory minimum sentences — five years for a first offense and 25 for a second — must run consecutive to the 10-year mandatory minimum for his two drug crimes.”).

^[24] Fed. R. Evid. 404(a)(1) (“Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”); cf. Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . .”).

^[25] RICO conspiracy most likely facilitates the admission of otherwise-inadmissible evidence through the carve-out in Rule 404(b)(2): “This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).