THE STATE OF OHIO, APPELLEE, v. STEVENS, APPELLANT; THE STATE OF OHIO, APPELLEE, v. BONDURANT, APPELLANT
Nos. 2012-2003 and 2012-2006
Supreme Court of Ohio
Submitted September 10, 2013—Decided May 13, 2014
139 Ohio St.3d 247, 2014-Ohio-1932
O‘NEILL, J.
{¶ 1} Appellants, Zachary Bondurant and Jeffrey Stevens, were involved in the sale of drugs in Highland County from late 2010 until early 2011. Although the total amount of money involved in the sales attributed to each appellant was $460 and $250 respectively, they were both charged with engaging in a pattern of corrupt activity under
{¶ 2}
{¶ 3} Under Ohio‘s RICO statutes, there are two reasonable interpretations regarding the monetary threshold that must be met in order to obtain a RICO conviction under
{¶ 4} It is a longstanding principle of Ohio law that criminal statutes that are found to be ambiguous are to be construed in favor of the defendant. Accordingly, since we find that the Ohio RICO statute applicable here is ambiguous in that the interpretation that favors the defendants is reasonable, we must interpret the statute in favor of appellants. That means that the minimum threshold found in
Facts and Procedural History
{¶ 5} Over the course of several months, the Highland County Sheriff‘s Department and the U.S. 23 Pipeline Task Force engaged in a prolonged investigation into drug activity centered in and around Highland County. That investigation revealed what the prosecution referred to as a “drug ring” that was headed by a man named Rodger Cassell and that included both Stevens and Bondurant. There were allegedly a total of nine individuals involved. Both Stevens and Bondurant were charged with engaging in a pattern of corrupt activity. Stevens was also charged with eight counts of trafficking in drugs and eight counts of possession of drugs. Bondurant was charged with six counts of possession of drugs and six counts of trafficking in drugs in a school zone. Both appellants entered pleas of not guilty, and a joint jury trial proceeded against both men.
{¶ 6} After the state presented its case, both men moved for acquittals under Crim.R. 29 as to the corrupt-activity charges, arguing that the $500 threshold set forth in former
{¶ 7} Appellants filed separate appeals in the Fourth District Court of Appeals. The key issue raised by both men was a challenge to their convictions under Ohio‘s RICO statutes. The principal argument that each made was that the state failed to offer evidence demonstrating that either of them was involved in drug sales that totaled $500 or more. The state in essence argued in response that it was sufficient to prove that the total amount of drug sales attributable to the enterprise as a whole was over $500. The state at trial had produced evidence that the total sales of the enterprise were well over $35,000. However, the evidence of actual sales offered by the state attributable to Stevens had amounted to about $250, and the state‘s evidence offered with respect to Bondurant had attributed $460 worth of drug sales to him. Thus, neither appellant, during the time period covered by the extended investigation, was shown to have engaged in total drug sales of $500 or more.
{¶ 8} After the court of appeals affirmed the convictions and sentences in a consolidated opinion, we accepted each appellant‘s discretionary appeal. 134 Ohio St.3d 1467, 2013-Ohio-553, 983 N.E.2d 367.
Analysis
{¶ 9}
{¶ 10} The key focus of our analysis is
when the proceeds of the violation, the payments made in the violation, the amount of a claim for payment or for any other benefit that is false or deceptive and that is involved in the violation, or the value of the contraband or other property illegally possessed, sold, or purchased in the violation exceeds five hundred dollars [now one thousand dollars], or any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in the
combination of violations, or value of the contraband or other property illegally possessed, sold, or purchased in the combination of violations exceeds five hundred dollars [now one thousand dollars].
(Emphasis added.)
{¶ 11} The legislature‘s continued use of the phrase “combination of violations” in this statute is ambiguous as it could be read to apply to more than one violation for an individual, or it could be read to refer to the total violations of the entire enterprise. Within the context of this statute, it is susceptible of more than one reasonable interpretation. See State v. Jordan, 89 Ohio St.3d 488, 491-492, 733 N.E.2d 601 (2000). This ambiguity is the crux of this case.
{¶ 12} We are guided by the rules of statutory interpretation as codified in the rule of lenity,
{¶ 13} However, the Fourth District Court of Appeals’ decision to evaluate the legislative intent in drafting
{¶ 14} Appellants’ proposed interpretation is clearly reasonable.
{¶ 15} It seems doubtful that the legislature intended to hold even small-time drug dealers liable for a first-degree felony through the operation of
{¶ 16} There are already laws in place prohibiting the sale of illegal narcotics. Thus, the purpose of the Ohio RICO Act would not be furthered by accepting the conclusion that the threshold amount set forth in
{¶ 17} Although the above considerations illustrate the reasonableness of appellants’ proposed construction of
Conclusion
{¶ 18} Based upon the foregoing analysis, we conclude that in order to obtain a conviction for engaging in a pattern of corrupt activity,
Judgment reversed and causes remanded.
PFEIFER and LANZINGER, JJ., concur.
FRENCH, J., concurs in judgment only.
O‘DONNELL and KENNEDY, JJ., concur in part and dissent in part.
O‘CONNOR, C.J., dissents.
FRENCH, J., concurring in judgment only.
{¶ 19} I concur with the decision to reverse the court of appeals’ judgment, but not because I find the definition of “corrupt activity” in
{¶ 20} It is imprecise to frame the issue as whether
{¶ 21}
{¶ 22} This does not mean that the statute requires proof that the defendant personally profited, or personally possessed contraband, in excess of the threshold (although either scenario would satisfy the statute). A defendant could still commit an incident of “corrupt activity” under
{¶ 23} But here, the court of appeals found that Stevens and Bondurant each satisfied
{¶ 24} I see no interpretation of
{¶ 26} However, even if sufficient evidence did support Stevens‘s RICO conviction, I would reverse based on Stevens‘s second proposition of law for the reasons stated by Justice Kennedy in her separate opinion.
KENNEDY, J., concurring in part and dissenting in part.
{¶ 27} Respectfully, I dissent from the lead opinion‘s conclusion that
{¶ 28} While the lead opinion does not address Stevens‘s second proposition of law regarding
{¶ 29} This court accepted a total of three propositions of law from the appellants, and each requires a specific answer. Jeffrey Stevens advances the following two propositions of law:
1.
R.C. § 2923.31(I)(2)(c) requires a threshold amount of $500.00 value of contraband sold. Where the statute is ambiguous as to whether the aggregation of the combined value of contraband sold is an aggregation of the individual‘s illicit activities or an aggregation of the enterprise‘s illicit activities, the trial and appellate courts erred in adopting an interpretation against the accused and his liberty interest by aggregating the enterprise as a whole rather than the individual.2. The defendant was convicted of Engaging in a Pattern of Corrupt Activity under
R.C. § 2923.32(A)(1) and his predicate acts were all fifth degree felonies. The statute is ambiguous as to whether the predicate
acts are the individual‘s acts or any other actor in the enterprise. The statute should be interpreted as to the individual, not the enterprise and thus where a jury makes no finding of a felony predicate act of the first, second, or third degree, the defendant should be sentenced as a second degree felony rather than a first degree felony under [R.C.]
2923.32(B) .
{¶ 30} Zachary Bondurant advances one proposition of law:
A defendant may only be convicted of engaging in a pattern of “corrupt activity” as defined in
R.C. 2923.31(I)(2)(c) if the value of the contraband for that defendant‘s activities is equal to or exceeds the threshold amount set forth in the statute.
{¶ 31} While presented differently, Bondurant‘s sole proposition of law and Stevens‘s first proposition of law pertain to the same inquiry: whether through applying the rule of lenity or applying the statute‘s plain meaning,
Background
{¶ 32} At the joint trial of Stevens and Bondurant, the testimony of fellow participants in the corrupt enterprise established that those other participants had been convicted of second- and third-degree-felony drug offenses for their roles in the enterprise. A jury found Stevens and Bondurant guilty of dozens of violations for possessing and trafficking in drugs. After merging the possession and trafficking counts, the trial court sentenced Stevens on five counts of fifth-degree trafficking in drugs. After merging counts, the court sentenced Bondurant on three counts of fourth-degree-felony acts of trafficking in drugs in a school zone. The trafficking convictions were all pursuant to
R.C. 2923.31(I)(2)(c) Is Not Ambiguous
{¶ 33} Regarding Bondurant‘s sole proposition of law and the first proposition of law of Stevens, I would hold that because the RICO statutory scheme targets the corrupt enterprise and not the individuals involved in it, the aggregated proceeds of $35,000 from the group‘s corrupt activity are attributable to appel-
{¶ 34} We begin with
{¶ 35}
{¶ 36} Next is the definition of “pattern of corrupt activity.”
{¶ 37} Finally comes the language central to this case.
Any violation of section * * * 2925.03 * * * of the Revised Code, [or] any violation of section 2925.11 of the Revised Code that is a felony of the first, second, third, or fourth degree and that occurs on or after July 1, 1996, * * * when the proceeds of the violation, the payments made in the violation, the amount of a claim for payment or for any other benefit that is false or deceptive and that is involved in the violation, or the value of the contraband or other property illegally possessed, sold, or purchased in the violation exceeds five hundred dollars, or any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in the combination of violations, or value
of the contraband or other property illegally possessed, sold, or purchased in the combination of violations exceeds five hundred dollars.
(Emphasis added.)
{¶ 38} The interpretation that the lead opinion gives
{¶ 39} The rule of lenity does not require reversal. “Since context gives meaning,” we cannot say that the statute is ambiguous until we consider the language as it is used in the statute rather than in isolation. United States v. Santos, 553 U.S. 507, 512, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). The lead opinion here is “quick to pronounce the [language] hopelessly ambiguous” and ignores that in doing so, it frustrates the General Assembly‘s “intent and maim[s] a statute that was enacted as an important defense against organized criminal enterprises.” Id. at 531 (Alito, J., dissenting). We must remember that the rule of lenity applies “at the end of the process * * *, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961).
{¶ 40} We have already applied the RICO statute based on its context and purpose, ruling unanimously that violating RICO is a strict-liability offense. State v. Schlosser, 79 Ohio St.3d 329, 681 N.E.2d 911 (1997), syllabus. We based our holding on “the plain language of the statute, the legislative intent and public policy considerations behind the statute, and the varying culpable mental states necessary for the predicate offenses.” Id. at 331–332. We observed that the “RICO statute was designed to impose cumulative liability for the criminal enterprise.” Id. at 335. The focus of the statute remains on the enterprise itself, not the individuals associated with it. State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 14.
{¶ 41} The part of former
any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in the combination of violations, or value of the contraband or other property
illegally possessed, sold, or purchased in the combination of violations exceeds five hundred dollars.
(Emphasis added.) With this statute, the General Assembly straightforwardly “impose[d] cumulative liability for the criminal enterprise,” Schlosser at 335, when “total proceeds of the combination of violations” produced more than $500.
{¶ 42} “Total” means “viewed as an entity.” Webster‘s Third New International Dictionary 2414 (1986). The proceeds that are attributable to these defendants in the enterprise comprise a portion of the proceeds of the combination of violations, not the total. Total proceeds were more than $35,000. Therefore, the statute does not require each defendant to have derived more than $500 in proceeds from the corrupt activity. It requires merely that the combined efforts of the criminal enterprise yielded more than $500 in proceeds. Former
{¶ 43} Because the statute is not ambiguous,
{¶ 44} Even if ambiguity could be divined within former
Stevens‘s First-Degree-Felony Conviction Under R.C. 2923.32(B)(1)
{¶ 45} Although Stevens was properly convicted of a RICO violation, his second proposition of law compels a holding in his favor. I would reverse
{¶ 46}
Whoever violates this section is guilty of engaging in a pattern of corrupt activity. Except as otherwise provided in this division, engaging in corrupt activity is a felony of the second degree. Except as otherwise provided in this division, if at least one of the incidents of corrupt activity is a felony of the first, second, or third degree, * * * engaging in a pattern of corrupt activity is a felony of the first degree.
(Emphasis added.)
{¶ 47} The state asserts that the statute is worded so that an accused may be convicted of a first-degree felony so long as “one of the incidents of corrupt activity” committed by anyone in the enterprise is “a felony of the first, second, or third degree.” For support, the state cites
{¶ 48} The state‘s position concerning the complicity statute is unpersuasive. Stevens was not convicted under
{¶ 49}
{¶ 50} Therefore, I concur in the majority result to the extent that a majority reverses Stevens‘s conviction for a first-degree-felony RICO violation, but I would remand the case to the trial court for entry of judgment of conviction on a second-degree felony for that violation.
O‘DONNELL, J., concurs in the foregoing opinion.
{¶ 51} We are not presented with an 18-year-old high school senior who was arrested for selling a dime bag of marijuana and prosecuted for a violation of Ohio‘s Racketeer-Influenced and Corrupt Organizations (“RICO“) statutes based on some tenuous tie between his product and a multibillion-dollar Colombian drug cartel.3 Quite the contrary.
{¶ 52} We are presented with two men, each between 30 and 40 years old, who repeatedly sold heroin, crack cocaine, and powder cocaine to a number of people in a number of counties over a number of months.
{¶ 53} As the appellate court recognized, the state‘s theory in this case is that Jeffrey Stevens was the right-hand man, and Zachary Bondurant was the left-hand man, of Rodger Cassell, the purported leader of their criminal enterprise. State v. Bondurant, 2012-Ohio-4912, 982 N.E.2d 1261, ¶ 7 (4th Dist.). And that enterprise trafficked drugs in school zones and impoverished areas, while stashing away tens of thousands of dollars in Cassell‘s vehicles.
{¶ 54} The suggestion that Bondurant and Stevens are anything less than professional purveyors of some of the most destructive drugs in society is, at best, disingenuous.
{¶ 55} But my quarrel is not simply over the lead opinion‘s mischaracterization of the nature of this appeal. It is with the lead opinion‘s improper analysis of the criminal statute at issue,
{¶ 56} The statute is unambiguous, both in wording and in context. The convictions of Bondurant and Stevens should be affirmed.
Analysis
{¶ 57} The Organized Crime Control Act of 1970,
{¶ 58} To effectuate its goals, the law‘s sponsors eschewed precise wording. Instead, they used commodious language to broadly encompass crimes committed by an enterprise. See H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 246, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). And we must be mindful that Congress provided specifically that the federal RICO statute be liberally construed to effectuate its remedial purposes. United States v. Sutton, 642 F.2d 1001, 1008 (6th Cir.1980) (en banc), citing
{¶ 59} Ohio, like many states, enacted its own version of RICO through the adoption of
{¶ 60}
when the proceeds of the violation, the payments made in the violation, the amount of a claim for payment or for any other benefit that is false or deceptive and that is involved in the violation, or the value of the contraband or other property illegally possessed, sold, or purchased in the violation exceeds five hundred dollars [now one thousand dollars], or any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in the combination of violations, or value of the contraband or other property
illegally possessed, sold, or purchased in the combination of violations exceeds five hundred dollars [now one thousand dollars].
(Emphasis added.)
{¶ 61} At the time of its enactment, Ohio‘s RICO Act was described by one of its sponsors as “‘the toughest and most comprehensive [RICO] Act in the nation.‘” Schlosser, 79 Ohio St.3d at 333, quoting 57 Ohio Report No. 117, Gongwer News Serv. 3 (June 18, 1985). It is nonsensical to think that a statute that was designed to be one of the most effective anti-crime laws in existence would use limiting terms, rather than expansive ones, in defining and proscribing criminal conduct.
{¶ 62} There is no doubt that criminal statutes must be strictly construed against the state in certain situations.
{¶ 63} As we recently reaffirmed, unanimously, Ohio‘s RICO statute is focused on the criminal enterprise, not on the individuals that comprise the enterprise. State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 14. The statutory language at issue here plainly and unambiguously reflects that intent.
{¶ 64} “Combination” means many things, and its definitions are clear and relevant here: “the act of combining or the state of being combined,” “a number of things combined,” “something formed by combining,” “an alliance of persons or parties,” and “a group thus formed.” The Random House Dictionary of the English Language 408 (2d Ed.1987). See also Rush Beverage Co., Inc. v. S. Beach Beverage Co., Inc., N.D.Ill. No. 01 C 5684, 2002 WL 31749188, *8 (Dec. 6, 2002), quoting Webster‘s Third New International Dictionary 452 (1986) (holding that the phrase “in combination with” is not ambiguous and not susceptible of more than one meaning, in that “combination” is defined as “‘the result or product of combining[;] a union or aggregate made by combining one thing with another,‘” and in that “combine” is defined as “‘to bring into close relationship’ “). And Black‘s Law Dictionary provides a succinct and particularly apropos definition for purposes of this appeal: a “combination” means “[a]n alliance of individuals or corporations working together to accomplish a common (usu. economic) goal.” Id. at 302 (9th Ed.2009). The General Assembly‘s repeated use of the word “combination” clearly and unequivocally means a
{¶ 65} The lead opinion‘s conclusion that the General Assembly‘s use of the term “combination” in
{¶ 66} As Justice White wrote in Turkette:
“The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 326, 5 L.Ed.2d 312 (1961) (footnote omitted). There being no ambiguity in the RICO provisions at issue here, the rule of lenity does not come into play. See United States v. Moore, 423 U.S. 122, 145, 96 S.Ct. 335, 346, 46 L.Ed.2d 333 (1975), quoting United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376, 379-380, 92 L.Ed. 442 (1948) (” ‘The canon in favor of strict construction [of criminal statutes] is not an inexorable command to override common sense and evident statutory purpose. * * * Nor does it demand that a statute be given the “narrowest meaning“; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers’ “); see also Lewis v. United States, 445 U.S. 55, 60-61, 100 S.Ct. 915, 918-919, 63 L.Ed.2d 198 (1980).
452 U.S. at 587, 101 S.Ct. 2524, 69 L.Ed.2d 246, fn. 10.
{¶ 67} The lead opinion‘s analysis corrupts the court‘s teachings on the rule of lenity, as well as the context of Ohio‘s RICO statute and the plain meaning of the words used in the statute. And the lead opinion‘s conclusion gives rise to an undue, unfair, and unwelcome ambiguity in a statute that affords important protections to Ohioans.
{¶ 68} I strongly dissent.
Anneka P. Collins, Highland County Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and E. Kelly Mihocik, Assistant Public Defender, for appellant Zachary Bondurant in case No. 2012–2006.