09-2767, U.S. v. Shamah

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RICO
Lack of supervisory authority; robberies or thefts as predicate acts; sentencing

Where a police officer stole drugs and money from drug dealers, his conviction under RICO was appropriate, despite the facts: that he was not an operator or manager of the police department; and that he and his co-conspirator agreed merely to commit thefts, not robberies.

“We have previously stated that the ‘prototypical’ RICO case is one where a person seizes control of an enterprise and uses it to commit criminal acts he could not do himself. Fitzgerald v. Chrysler, 116 F.3d 225, 227 (7th Cir. 1997). Only ‘a step away’ from the prototypical case is one where a criminal uses an enterprise to engage in criminal activities but is generally ‘content to allow it to conduct its normal, lawful business.’ Id. That is the case we have here. And in a pre-Reves case, we rejected the argument that a police officer’s lack of a supervisory position precluded his guilt under RICO. United States v. Ambrose, 740 F.2d 505, 512 (7th Cir. 1984), abrogated on other grounds by United States v. Pino-Perez, 870 F.2d 1230 (7th Cir. 1989). Our sister circuits have similarly looked to the core-enterprise affairs and the actions of the charged defendant in determining whether the defendant is an operator or manager. In United States v. Urban, for example, the Third Circuit emphasized that the key to showing ‘operation or management’ was a nexus between the person and the affairs of the enterprise. 404 F.3d 754, 769-70 (3d Cir. 2005). The First Circuit has described the operator or manager as someone who is ‘plainly integral’ to carrying out the enterprise’s activities. United States v. Shifman, 124 F.3d 31, 36 (1st Cir. 1997).

“Shamah and his co-defendant Doroniuk were operators for the purposes of RICO. The heart of a police department’s function is to enforce the law, and not to manage other officers or implement policies. As an officer, even a ‘lowly’ one, Shamah had the power to control the department’s affairs and direct its force. With a substantial amount of discretion, Shamah chose who to stop on the street, which cars to pull over, and when to obtain arrest and search warrants. Furthermore, he acted as a representative for the larger police department and the city when he spoke to citizens, created public inventory records, and testified to facts that served as the basis for warrants and indictments. …

“The distinction between a robbery and a theft can be subtle-theft is a taking without the requirement of force. 720 ILCS 5/16-1. To sustain a charge of robbery, the robber must use force or the threat of force as the means to take the property from the person or presence of the victim. People v. Blake, 579 N.E. 2d 861, 863 (Ill. 1991). …

“Clearly, the evidence showed that Shamah and Doroniuk used the force that came along with their police power as a way of subduing and preventing resistance from those they robbed. Drug dealers were their ideal targets because they tended to carry large amounts of money and would not likely be credible if they complained about the police officers’ actions. The government also introduced evidence of Shamah and Doroniuk discussing ways they could get more money from someone they believed was a particularly profitable drug dealer, including a suggestion by Doroniuk that they take money ‘off duty’ with a ‘ski mask on’ if necessary. Given this evidence, a reasonable jury had more than enough evidence to conclude that Shamah and Doroniuk had an on-going agreement to rob drug dealers.”

Finally, with regard to defendant’s sentencing challenges, we conclude that any error regarding the number of robberies was harmless; that the sentencing enhancements for armor, weapons and restraints were proper; and the sentence was reasonable.

Affirmed.

09-2767, U.S. v. Shamah, Northern District of Illinois, Eastern Division, Gettleman, J., Williams, J.

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