United States of America, Plaintiff-appellee, v. Juan Paul Robertson, Defendant-appellant.united States of America, Plaintiff-appellant, v. Juan Paul Robertson, Defendant-appellee, 74 F.3d 1247 (9th Cir. 1996)

Before: REINHARDT, T.G. NELSON, Circuit Judges, and KAUFMAN,^*  District Judge.

MEMORANDUM^** 

A. RICO

A violation of 18 U.S.C. § 1962(a) requires proof of the following elements: (1) a person receives income derived directly or indirectly from a pattern of racketeering activity; (2) that person uses or invests, directly or indirectly, any part or proceeds of such income in the acquisition of any interest in, or the establishment or operation of any enterprise; and (3) that enterprise is engaged in or its activities affect interstate or foreign commerce.

A. Pattern of Racketeering Activity

Robertson was convicted of Counts One through Four of the Superseding Indictment which charged various acts of cocaine distribution, conspiracy to possess cocaine with intent to distribute, and a number of overt acts in furtherance of the conspiracy, committed between 1986 and 1988. In addition, the Government demonstrated in support of the RICO charge a number of predicate acts of racketeering occurring between 1983 and 1987, including: transporting in interstate commerce $980,000 in cash, an automobile and two kilograms of cocaine (Act 6), transporting in interstate commerce twenty-two kilograms of cocaine and a large amount of cash (Act 7), possession of three kilograms of cocaine with intent to distribute (Act 8), distribution of four kilograms of cocaine (Act 9), and distribution of five kilograms of cocaine (Act 10e).

Reviewing the evidence in the light most favorable to the government, as we must, it is clear that the Government proved both "continuity plus relationship." H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989). The Government proved that Robertson engaged in selling, stealing and transporting drugs and stealing and transporting money over an approximate four-year period. Thus the acts are related and "amount to or pose a threat of continued criminal activity." Id.

B. Investment in Enterprise

This element of RICO is satisfied when income, any part of income or proceeds of such income, derived directly or indirectly from a pattern of racketeering activity, is used or invested directly or indirectly in the acquisition, establishment or operation of any enterprise. 18 U.S.C. § 1962(a). The Government established that Robertson stole approximately $980,000 from Silva, that he transported the cash from California to Arizona, that he purchased a home in Arizona for cash, and that he later used that home as collateral for a $300,000 loan used to finance a gold mining operation. Further, the Government showed that Robertson drove the automobile he stole from Silva to Alaska for use in the mining venture. On the basis of this and other evidence, the jury could reasonably have inferred that the money Robertson stole from his clients and the income he obtained from his drug trafficking operation were directly or indirectly invested in the gold mine operation. We therefore hold that there was sufficient evidence to sustain the conviction.

Robertson argues in his pro se brief that the Government ignored the sequence of events required under RICO. He contends that the racketeering acts which occurred in 1987 could not be related back to his use or investment of income in 1985 and 1986. The language of 18 U.S.C. § 1962(a) does not support the strict sequential analysis urged by Robertson. Section 1962(a) requires proof of a pattern of racketeering activity which generates income used to acquire or establish the enterprise, or to operate the enterprise. Thus, the statute contemplates income derived from activities engaged in prior to the existence of the enterprise which may be used to acquire, establish or operate the enterprise, as well as income derived from activities conducted after the establishment of the enterprise and used in its operation.

C. Special Verdict on Count Six

In criminal cases, a special verdict is the exception and not the rule. United States v. Aguilar, 883 F.2d 662, 690-91 (9th Cir. 1989), cert. denied, 498 U.S. 1046 (1991). "It has long been established that special verdicts in criminal jury trials are disfavored." United States v. Shelton, 588 F.2d 1242, 1257 (9th Cir. 1978), cert. denied, 442 U.S. 909 (1979).

Even if we assume that the district court should have given a special verdict form to the jury, we find that Robertson suffered no prejudice from the omission. The jury was instructed that it had to find unanimously that there were two predicate acts constituting a pattern before it could convict Robertson on Count Six. See United States v. Jessee, 605 F.2d 430, 431 (9th Cir. 1979) (request for special verdict properly denied where trial court instructs jurors that they must find at least one of the factual allegations charged). The jury specifically found four of the predicate acts charged by the Government when it convicted Robertson of Counts One through Four. See also United States v. Corona, 885 F.2d 766 (11th Cir. 1989), cert. denied, 494 U.S. 1091 (1990).

Robertson argues that his case is similar to United States v. Ruggiero, 726 F.2d 913 (2d Cir.), cert. denied, 469 U.S. 831 (1984), in which the court reversed one defendant's RICO conviction because one of the predicate acts (gambling conspiracy) was legally insufficient. Robertson's reliance upon Ruggiero is misplaced. Ruggiero held that as a matter of law, a gambling conspiracy cannot form the basis for a RICO violation because it is not a predicate act within the definitions set forth in Sec. 1961. Id. at 920. In the present case, Robertson does not claim that the predicate acts are insufficient as a matter of law; rather, he claims that there was an insufficient factual basis for his conviction. However, as noted above, the Government presented sufficient evidence to convict Robertson.

D. The RICO Statute as Unconstitutionally Vague

Robertson argues that the RICO statute is unconstitutionally vague. In support of his constitutional challenge, Robertson seizes upon language contained in Justice Scalia's concurring opinion in H.J. Inc. where Justice Scalia suggested that such a challenge might succeed. H.J. Inc., 492 U.S. at 255-56.