Plain Error – RICO

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7^th Circuit Court of Appeals

Case Name: United States of America v. Eddie C. Hicks

Case No.: 20-2970

Officials: EASTERBROOK, RIPPLE, and ST. EVE, Circuit Judges.

Focus: Plain Error – RICO

For about 30 years, Eddie Hicks worked as a police officer in Chicago. A jury concluded that he used his position to steal drugs and guns from pushers and to extort money from them. Hicks and his confederates (some on the force and others who used fake badges to make people believe they were) obtained from informants and other officers information about where drugs might be found. Then they used police cars and other departmental equipment to search drug houses and cars thought to be carrying drugs. They used forged search warrants to reduce resistance to these tactics. After stealing drugs and guns, Hicks and his crew let the suspects go—sometimes after exchanging the contraband for cash. Contraband that could not be sold back to the dealers was sold on the black market and the proceeds divided among members of the crew. See United States v. Hargrove, 508 F.3d 445, 447–48 (7th Cir. 2007) (affirming the convictions of one of Hicks’s confederates).

The jury convicted Hicks of eight felonies, including failure to appear on the day initially set for his trial. (He was a fugitive for about 15 years.) Sentenced to a total of 146 months’ imprisonment, he does not contest the sufficiency of the evidence. It was overwhelming. But he does contest the convictions on three counts: Count 1, which charged him with violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1962, and Counts 7 and 8, which charged him with stealing money belonging to the United States, 18 U.S.C. §641. The latter crimes reflect the fact that the FBI got wind of Hicks’s operations and provided money as bait in places they thought he might rob. Not knowing that he was being investigated, Hicks and his crew took the bait. Because the money Hicks stole was property of the United States, he was charged with violating §641.

A person violates RICO by running or managing an “enterprise” through a “pattern of racketeering activity,” which the statute further defines as the commission of listed predicate crimes. The pattern of racketeering activity can be committed directly or through a conspiracy. To become a pattern, predicate acts must be separate from each other but related in some way. Conviction also depends on proof that the activities of the enterprise were in or affected interstate commerce. Applying RICO is a notoriously complex endeavor, see H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), and Hicks maintains that the jury at his trial could well have confused the conspiracy with the “enterprise” or treated the pattern of other crimes (such as stealing or possessing drugs and guns) as if it were the enterprise or the conspiracy, or perhaps misunderstood how predicate offenses must be related to form a pattern.

The problem with this line of argument lies in phrases such as “could well” and words such as “perhaps.” We cannot look inside jurors’ minds to see whether they were confused. All a court of appeals can examine is objective events, such as the terms of the indictment, the language of the jury instructions, and the arguments of counsel. Yet Hicks did not contest any of these matters in the district court. He did not move to dismiss the indictment, so we must assume that it states a technically sufficient RICO charge. (And, to our eyes, it does.) Hicks did not object to any of the jury instructions; to the contrary, his counsel approved them. Nor did Hicks request any additional instructions in order to help the jurors keep the different concepts straight. Finally, Hicks did not object to the prosecutor’s closing arguments about what needed to be proved, and how, in the prosecutor’s view, that had been accomplished. This combination of waiver (approving the jury instructions) and forfeiture (not objecting to the indictment or argument; not asking for more disambiguation from the judge) leaves Hicks in a hopeless position on appeal. We do not see anything approaching plain error with respect to the issues that were forfeited—and those that were waived cannot be called error at all.

Affirmed

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Derek A Hawkins is Corporate Counsel, at Salesforce.