Sunday, February 12, 2012

Cain is Able

United States v. Cain, 09-0707-cr (2d Cir. January 31, 2012) (Newman, Lynch, CJJ, Restani, JCIT)

This is a case, oddly enough, about trees. Appellant David Cain, Jr., proprietor of David’s Tree Service, assisted by his brother, Chris Cain, a cousin, Jamie Soha, and others, was trying to corner the tree service and logging market in northwestern New York State. To get there, they engaged in acts of violence, extortion and even arson, and were convicted of substantive and conspiracy RICO counts and of other, related crimes.

All convictions were affirmed except for Chris Cain’s on the RICO counts. The circuit found that the district court’s “pattern” instruction was erroneous and, as to Chris Cain, the error, although not flagged below, was plain.

The RICO statute requires proof of a “pattern of racketeering activity” - at least two acts, the last of which occurred within ten years after the commission of the one before it. But the Supreme Court requires more than just temporal proof - the prosecution must prove that the racketeering acts are “interrelated” and that there is “continuity or a threat of continuity.” The Second Circuit has distilled this rule into two distinct parts: “horizontal relatedness” means that the acts must be shown to be related to one another; “vertical relatedness” means that the acts must be shown to have a nexus to the enterprise (this concept includes “continuity”). Here, the district court charged only the statutory language with respect to timing. This was error, both as to the substantive RICO count and the RICO conspiracy count, since the conspiracy statute includes the pattern requirement.

Turning to plain error review, the circuit easily concluded that there was (1) an “error” that was (2) “plain,” that is, “obvious,” since the circuit’s rule on relatedness and continuity had been “well established” by a “substantial body of case law” long before this trial took place.

The third prong - whether the error affected a defendant’s “substantial rights” - was a “closer question.” To meet this test, the error must be “prejudicial, which means that there must be a reasonable probability that the error affected the outcome of the trial.” For David Cain and Soha, there was “no such possibility. The jury independently convicted them of several counts of extortion that were also RICO predicates, and those verdicts “overwhelmingly demonstrated that the same objective motivated each act of extortion” - to increase David Cain’s market share and “enrich [his] associates.” The extortions were also clearly not aimed uniquely at the victims; their purpose was to secure David Cain’s dominance in the tree service business in the area, a goal that plainly posed a threat of future acts, as needed, to eliminate other competitors or new entrants into the market.

For Chris Cain, however, the court reached a different result. He was not charged in the three extortions that made up the core of the RICO case against his brother, and the evidence connecting Chris Cain’s unlawful activities to the criminal enterprise was “remarkably thin.” The only RICO predicate that both Chris and David were convicted of was a 1994 vehicle arson, which the government had conceded on appeal was insufficiently proven. And the remaining racketeering acts that the jury found to have been proven as to Chris were “not so clearly linked to each other or to the enterprise itself” that a rational jury, properly instructed, could necessarily have found that they constituted a pattern of racketeering activity.

Those acts were: a marijuana distribution conspiracy , the arson of a residence, a different arson and insurance fraud in connection with a rental property owned by Cain’s parents and a home invasion robbery. But none of those offenses involved David Cain, his tree service business or the other participants in the racketeering acts, and there was no “apparent connection” among the crimes themselves.

Finally, prong four, the court held that the erroneous instruction “seriously affect[ed] the fairness, integrity [and] public reputation of judicial proceedings” pertaining to Chris Cain, such that the circuit was warranted in exercising its discretion to correct it.

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