Fifth Circuit Vacates 924(c) Convictions Predicated on Either RICO Conspiracy or Drug Trafficking: Perry
In United States v. Perry, __F.4th__ (5th Cir. 2022), the Fifth Circuit Vacated 924(c) convictions based on either RICO Conspiracy or Drug Trafficking.
Facts: Multi-Defendant Trial that involved 924c's and a duplicitous indictment.
This consolidated appeal involved ten defendants following a six-week trial. In April 2016, a federal grand jury returned a 47-count superseding indictment against the defendants charging various crimes including violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), drug and gun conspiracies, Violent Crimes in Aid of Racketeering Act (VICAR) and possession of firearms in furtherance of crimes of violence and drug trafficking offenses.
Each 924(c) count charged in the indictment used RICO conspiracy OR drug trafficking as its predicate offense. Notably, the jury was not required to determine whether RICO or drug trafficking was the actual predicate used to convict the defendants on each challenged 924(c) charge.
Initially, the government argued that the “aggravated form of RICO conspiracy” qualified as a crime of violence under 924(c)(3)(A). However, in 2021, the Fifth Circuit held in United States v. McClaren, 12 F.4th 386 (5th Cir. 2021) that RICO conspiracy was not a crime of violence for 924(c) purposes. The government conceded error after McClaren, but maintained the error was harmless. Eventually, though, the government dropped its harmless-error argument.
The question before the Fifth Circuit was whether the 924(c) convictions could still stand since they were based in part on drug trafficking, which continues to be a valid predicate offense. In reviewing the district court’s jury instructions, the court explained to the jury that each defendant could be found guilty if it found the defendant has used a firearm in relation to either RICO or drug trafficking.
The Fifth Circuit determined that the 924(c) convictions must be vacated despite the alternative drug trafficking predicate. The court concluded that “[a] reasonable probability remains that the jury relied upon RICO conduct separate from the drug conspiracy . . . to convict Appellants of the challenged 924(c) offenses.”
Had the defendants in this case been charged with 924(c)s based solely on RICO conspiracy, there would have been no question that those charges were invalid after Johnson, Dimaya, and Davis. On the other hand, if the indictment had alleged each count was predicated on RICO conspiracy AND drug trafficking, then it is likely the appellate court would have affirmed the convictions.
The key in this case is that the indictment and jury instructions listed the 924(c) predicates in the disjunctive-meaning the jury could have relied only on RICO, drug trafficking, or both to convict on these counts. The problem with a general verdict such as this is that there is no way of knowing which underlying crime the jury relied on in making its determination. Thus, because there is a probability that the jury relied on RICO to convict the defendants of the 924(c) counts, and RICO does not constitute a crime of violence, the 924(c) convictions were invalid.
This sort of charging method for 924(c) convictions is not uncommon and has become problematic in the wake of Johnson and Davis. Although those cases were decided years ago, we still are still seeing cases of unconstitutional 924(c) convictions. If you believe you have an issue with a 924(c) conviction and are looking for attorney assistance, reach out to me at [email protected] to discuss your case further.