Kate Corrigan, Esq.,
Corrigan Law Corporation, APLC
Newport Beach, CA
GANGS:
Defining the Gang
MULTI-TRACK 2008
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GANG – WE AIN’T NO GANG – WE’RE NOT THAT
ENTERPRISING – WE JUST HANG OUT
Kate Corrigan
Corrigan Law Corporation, APLC
„ Newport Beach, CA
„ 949-251-0330
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GANGS -- RICO
WHAT’S A DEFENSE
LAWYER TO DO?
RICO
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18 U.S.C. 1962(d): Elements
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(1) The was an enterprise.
(2) The enterprise engaged, or its activities affected,
interstate or foreign commerce.
(3) The defendant associated with the enterprise.
(4) The defendant knowingly and intentionally
entered into an agreement to conduct, or participate
in the conduct of, the affairs of the enterprise through
a pattern of racketeering activity; and
(5) Defendant agreed a conspirator would commit at
least two acts of racketeering in the conduct of the
affairs of the enterprise.
Racketeering Activity
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18 USC 1961(1)
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Racketeering activity means (A) any act or
threat involving murder, kidnapping,
gambling, arson, robbery, bribery, extortion,
dealing in obscene matter, or dealing in a
controlled substance … which is chargeable
under State law and punishable by
imprisonment for more than one year; (B) any
act which is indictable under Title 18 …
Pattern of Racketeering Activity
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18 USC 1961(5)
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Pattern of racketeering activity requires at
least two acts of racketeering activity, one of
which occurred on or after the effective date
of this chapter and the last of which occurred
within 10 years (excluding any period of
imprisonment) after the commission of a prior
act of racketeering activity
What is an enterprise?
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An “enterprise” includes any individual,
partnership, corporation, association, or
other legal entity, and any union or group
of individuals associated in fact although
not a legal entity.
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United States v. Turkette, 452 U.S. 576
(1981).
More on Enterprise
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“[T]he ‘enterprise’ is not the ‘pattern of
racketeering activity’; it is an entity
separate and apart from the pattern of
activity in which it engages.’ and its
separate existence must be proved in
order to convict.”
US v. Griffin, 660 F.2d 996, 999 (4th Cir.
1981, (quoting Turkette.)
What Do You Have – RULE 29?
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Structural integrity
Loose associations – occasional gatherings
Guilt by association
Shared purpose and identifiable structure
Group association for criminal purpose
Division into cliques – no coordination
No common scheme – no plan - meetings
Individual street corner merchants
What is Racketeering Activity?
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“Racketeering activity” includes any act or threat
involving murder, kidnapping, gambling, arson,
bribery, robbery, extortion, or dealing in
obscene matter or a controlled substance, which
is chargeable under state law and punishable by
imprisonment for more than one year or for the
felonious manufacturing, importing, receiving,
concealing, buying, selling or otherwise dealing
in a controlled substance. (18 USC 1961)
Penalties for Violating RICO
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Maximum Sentence: 18 USC 1963
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20 years (or for life if the violation based on a
racketeering activity for which the maximum
penalty includes life imprisonment); forfeiture;
a fine; and a mandatory special assessment of
$100.00.
Gang – We Aren’t A Gang
We’re Not That Organized !!
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18 USC Section 521(a)
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Definitions
Criminal Street Gang
„ Penalty – Sentencing Enhancement
„ Qualifying Offenses
„ “Circumstances”
„ State Offenses
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What Is A Criminal Street Gang?
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Section 521 Defines a Criminal Street Gang as:
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“an ongoing group, club, organization, or association
of 5 or more persons(A) that has as 1 of its primary purposes the
commission of 1 or more of the criminal offenses
described in subsection (c);
(B) the members of which engage, or have engaged
within the past 5 years, in a continuing series of
offenses in subsection (c); and
(C) the activities of which affect interstate or foreign
commerce.”
CSG ENHANCEMENT
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18 UCS 521(b)
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The sentence of a person convicted of an
offense described in subsection (c) shall be
increased by up to 10 years if the offense is
committed under the circumstances described
in subsection (d).
“Criminal Street Gang”
THE WHO COMPONENT
“An ongoing group, club, organization, or
association of 5 or more persons”
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Ongoing
„ Group, club, organization, or association
„ Of 5 or more persons
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Qualifying Offenses
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PAST 5 YEARS OF CONTINUING OFFENSES
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WHAT OFFENSES? 18 USC 521(c)(1)
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21 U.S.C SECTION 802 (controlled substances); FOR WHICH
PENALTY IS NOT LESS THAN FIVE YEARS
FEDERAL CRIME OF VIOLENCE THAT HAS AS AN ELEMENT
THE USE OR ATTEMPTED USE OF PHYSICAL FORCE
AGAINST THE PERSON OF ANOTHER
CONSPIRACY TO COMMIT ONE OF THE ABOVE OFFENSES
Circumstances
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18 USC 521(d)
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The offense was committed by a person who:
Participates in a criminal street gang with
knowledge that its members engage in or have
engaged in a continuing series of offenses
described in subsection (c).
„ Intends to promote or further the felonious
activities of the CSG or maintain or increase his or
her position in the gang, and
„ Has been convicted in the last 5 years of certain
crimes (drug offenses, violence, conspiracy, …)
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INTERSTATE COMMERCE
COMPONENT
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ACTIVITIES MUST AFFECT INTERSTATE
OR FOREIGN COMMERCE
PROJECT SAFE
NEIGHBORHOODS
NATIONAL CONFERENCE
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“America’s Network Against Gang
Violence”
Prosecutors and Law Enforcement;
representatives from the DOJ
How Hispanic Gangs Organize
„ Public Housing Gang Suppression
„ Prosecuting Gangs Under a Racketeering or
Conspiracy Theory (RICO; VICAR)
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"If you use a gun illegally, you will do hard time”
VICAR
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18 USC 1959 VIOLENT CRIMES IN AID OF
RACKETEERING ACTIVITY
Purpose is to gain entrance or maintain or
increasing position in ENTERPRISE that is
engaged in racketeering activity
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CATCH ALL PHASE – violent crime is
committed , threatened to be committed, or
defendant attempts to or conspires to do so
Prosecution Approach Samples
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CONSPIRACY
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GUN POSSESSION
RICO – 18 USC 1962
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TO DISTRIBUTE CONTROLLED SUBSTANCES
PARTICIPATION IN PATTERN OF
RACKETEERING ACTIVITY
VICAR – 18 USC 1959
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VIOLENT CRIME IN AID OF RACKETEERING
FOUNDATIONAL ISSUES
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THE GOVERNMENT’S WITNESS
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GANG EXPERT
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A COP IN EXPERT CLOTHING
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THE EXPERT FROM WITHIN – A GANG MEMBER
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THE UNIVERSITY PROFESSOR
Admissibility of Expert Testimony
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Foundation, Foundation, Foundation
Daubert v. Merrill Dow Pharmaceuticals,
Inc. (1993) 509 U.S. 579; General Electric
Co. v. Joiner (1997) 522 U.S. 136; Kumho
Tire Co. Ltd. v. Carmichael (1999) 119
S.Ct. 1167:
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“[C]harges the [trial] court with assuring that
expert testimony ‘rests on a reliable
foundation and is relevant to the task at
hand.’”
Gang Expert Qualifications
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Bias – only testifies for the government?
Formal training – where does it come
from- other cops?
Educational background
Articles – Does the expert read? Write?
What does the gang “expert” rely upon to
formulate opinion that the gang exists and
that your client is a member?
What Does My Client Wear?
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Gang attire.
Dressing to the right or the left. brim of hat turned to the left or right, pant leg
rolled up, shirt collars turned up on one side only, any predominance of colors, colors
displayed in wrist or ankle bands, shoe laces, rubber bands, barrettes, and
bandannas, tongues hanging out of one shoe, earrings worn on one side only,
bandannas or scarves hanging from belt loops, pockets, or tied to the leg. Eyebrows
shaved or lines shaved through them. Small tattoos on the inside of the hand or
between the thumb or index finger. Burn marks (brands) on the arms, hands, or
chest. Look for writing on the inside of hat, or under the brims for gang writing.
Some clothes that have strong gang affiliation:
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Chicago Bulls: People
North Carolina: Crip Nation, or Cobra Nation
Detroit Tigers Hat: Disciples
University of Texas/Long Horn: Insane Folk Heart; looks like heart with horns coming out of
it.
L. A. Kings: Latin Kings
Green Bay Packers: "G" stands for gangster.
Georgetown: "G" stands for gangster
Seattle Mariners: "S" stands for rolling 60 Crip
Houston Astros: "H" stands for Hoover; folk.
Discovery
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Ask for everything about the “expert.”
All records relating to formal training
Reports, publications, classes
Documents relied upon to establish existence of
gang
Documents relied upon to establish client is a
GANG member
Documents relied upon to establish pattern of
conduct; predicate acts (state or federal)
Documents establishing activity and organization
of gang (police reports, FI cards, self-admission)
“Circumstances”
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Circumstances are that the offense was
committed by a person who:
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Participates in a CSG with knowledge that its
members engage in or have engaged in a continuing
series of offense described in subsection (c)
Intends to promote or further the felonious activities
of the CSG or maintain his or her position in the gang
Has been convicted within the past 5 years of certain
offenses (certain state and federal convictions qualify)
Who Is Your Client
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Humanize your client
What does your client do on a day to day
basis
Job
„ Family
„ Children
„ Spouse, significant other
„ Community ties
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Your Client – Purpose of
Involvement in CSG
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Participation with the knowledge that the
members of the CSG engage in or have
engaged in a continuing series of requisite
offenses
Intention to promote or further the
felonious activities of the CSG
Maintain or increase position in the CSG
Bottom Line
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Look at every aspect of:
Your case
„ Discovery supporting government’s allegation
„ Lack of discovery supporting government’s
allegation
„ Expert’s qualifications
„ Expert’s opinion
„ Your client
„ Attack the foundation at every step
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