Petition for Writ of Certiorari — Sidney Patterson, Petitioner v. United States

No. ____________________________

IN THE SUPREME COURT OF THE UNITED STATES

____________________________

SIDNEY PATTERSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent

____________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________________

PETITION FOR A WRIT OF CERTIORARI

____________________________

AUTUMN TOWN

autumn@town-law.com

COUNSEL OF RECORD

LAW OFFICE OF AUTUMN TOWN, LLC

700 Camp Street

New Orleans, LA 70130

Telephone:(504)507-0832

QUESTION PRESENTED FOR REVIEW

A conviction based on less than sufficient evidence is a due process violation.

1.

Does the application of a vaguely written racketeering statute to

prosecute unsophisticated criminal activity not contemplated by the legislative

intent of RICO run afoul of due process requirements?

2.

If the government fails to show that two or more persons joined

together to pursue any unlawful objective and that there was no functioning

cohesive RICO enterprise, can a conviction for a Federal Controlled Substances Act

(FCS) conspiracy stand?

3.

If the government fails to show a functioning RICO enterprise, coupled

with a general lack of sufficient evidence, can a murder conviction stand?

ii

PARTIES TO THE PROCEEDINGS IN THE COURT WHOSE JUDGMENT IS

SOUGHT TO BE REVIEWED

All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

Sidney Patterson

Petitioner

United States of America

Respondent

Deloyd Jones

Co-Appellant below, and filing a separate

Petition for writ of Certiorari on similar

issues.

Byron Jones

Co-Appellant below, and filing a separate

Petition for writ of Certiorari on similar

issues.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..................................................................ii

PARTIES TO THE PROCEEDINGS ........................................................................... iii

TABLE OF CONTENTS ................................................................................................ iv

TABLE OF AUTHORITIES ........................................................................................... v

OPINIONS BELOW........................................................................................................ 1

STATEMENT OF JURISDICTION .............................................................................. 2

CONSTITUTIONAL PROVISIONS INVOLVED ......................................................... 3

STATEMENT OF THE CASE ........................................................................................ 4

REASONS FOR GRANTING THE PETITION ............................................................. 8

A. The application of a vaguely written racketeering statute to prosecute

unsophisticated criminal activity not contemplated by the legislative intent of

RICO runs afoul of due process requirements.................................................... 9

B. The government failed to show that two or more persons joined together to

pursue any unlawful objective and that there was no functioning cohesive

RICO enterprise, so Mr. Patterson’s conviction for a Federal Controlled

Substances Act (FCS) conspiracy cannot stand................................................ 19

C. The government failed to show a functioning RICO enterprise, coupled

with a general lack of sufficient evidence, and Mr. Patterson’s murder

conviction cannot stand. .................................................................................... 19

D. Petitioner adopts by reference arguments raised by his co-defendants .... 21

CONCLUSION .............................................................................................................. 22

APPENDIX TABLE OF CONTENTS .......................................................................... 24

iv

TABLE OF AUTHORITIES

Cases:

Boyle v. United States, 556 U.S. 938 (2009) .............................................. 10, 13, 16, 18

City of Chicago v. Morales, 527 U.S. 41 (1999) ..................................................... 14, 18

Estelle v. Williams, 425 U.S. 501 (1976) ..................................................................... 22

Grayned v. City of Rockford, 408 U.S. 104 (1972) ....................................................... 12

Hill v. Colorado, 530 U.S. 703 (2000) ........................................................................... 12

In Re Winship, 397 U.S. 358 (1970) ............................................................................... 8

Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................. 8, 16

Johnson v. United States, 576 U.S. 591 (2015) ..................................................... 17, 18

Kolender v. Lawson, 461 U.S. 352 (1983) .................................................................... 14

Molzof v. United States, 502 U.S. 301 (1992) .............................................................. 18

Morissette v. United States, 342 U.S. 246 (1952) ....................................................... 19

Musacchio v. United States, 136 S. Ct. 709 (2016) ..................................................... 16

Russello v. United States, 464 U.S. 16 (1983) ............................................................... 9

Salinas v. United States, 522 U.S. 52 (1977) .............................................................. 13

Sessions v Dimaya, 584 U.S. __, 138 S.CT. 1204 (2018) ............................................... 7

United States v. Am. Bldg. Maint. Indus., 422 U.S. 271 (1975) ................................. 11

United States v. Jones, et al 873 F.3d 482 (5th Cir. 2017) .......................... 1, 7, 10, 20

United States v. Jones, et al 935 F.3d 266 (5th Cir. 2019) ...................................... 1, 8

United States v. Jones, et al 810 Fed.Appx. 333 (Mem) (5th Cir. 2020) .................. 1, 8

v

United States v. Lopez, 514 U.S. 549 (1995) ............................................................... 11

United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921) ....................................... 18

United States v. Morrison, 529 U.S. 598 (2000) ......................................................... 11

United States v. Reese, 92 U.S. 214 (1876) ................................................................ 18

United States v. Robertson, 514 U.S. 669 (1995) ....................................................... 11

United States v. Turkette, 454 U.S. 576 (1981) ............................................... 9, 10, 17

United States v. Williams, 553 U.S. 285 (2008) ......................................................... 13

Statutes:

18 USC §924 ................................................................................................................ 5, 7

18 USC §1959 ...................................................................................................... 5, 19, 20

18 U.S.C. §1961 ................................................................................................... 9, 10, 20

18 USC §1962 ................................................................................................ 5, 10, 11, 12

21 USC §841 .................................................................................................................... 5

21 USC §846 .................................................................................................................... 5

28 U.S.C. §1254(1) .......................................................................................................... 2

Constitutional Provisions:

U.S. Const. art. I, §8, cl. 3 ............................................................................................. 11

U.S. Const. Amend. V ..................................................................................................... 3

U.S. Const. Amend. XIV ............................................................................................... 21

Other Authorities:

115 Cong. Rec. 9566, 9567 (1969) (statement of Sen. John L. McClellan) .................. 9

vi

Organized Crime Control Act of 1970, Pub. L. No. 91-452, 1970 U.S.C.C.A.N. (84

Stat. 922) 1073 ................................................................................................................ 9

Jordan B. Woods, Systemic Racial Bias and RICO's Application to Criminal Street

and Prison Gangs, 17 MICH. J. RACE & L. 303 (2012) ............................................. 14

vii

OPINIONS BELOW

The original opinion of the United States Fifth Circuit Court of Appeals is

reported at 873 F.3d 482 (October 13, 2017) and reprinted in the Appendix to the

Petition (“App.”) at 1a-24a. Following remand and resentencing, a second appeal

was taken and that opinion is reported at 935 F.3d 266 (August 12, 2019) and

reprinted in the Appendix to the Petition (“App.”) at 25a-35a. Petitioner would note

that there are no claims at issue from that opinion; remand and resentencing were

again ordered. Following remand and resentencing on the second appeal, a Motion

for Summary Disposition was filed. That motion was granted and is reported at 810

Fed.Appx. 333 (Mem) (June 23, 2020). It is reprinted in the Appendix to the Petition

(“App.”) at 36a-37a.

1

STATEMENT OF JURISDICTION

Petitioner seeks review of a decision rendered by the United States Court of

Appeals for the Fifth Circuit in a published opinion on October 13, 2017, where the

Court of Appeals found that Ride or Die (ROD) was an association-in-fact

enterprise, that various criminal acts committed by Petitioner constituted

racketeering activity, that Petitioner was part of a drug conspiracy, and that a

murder he committed was in furtherance of the ROD conspiracy. This opinion was

essentially reaffirmed in a Motion granting Summary Disposition on June 23, 2020.

This Court has supervisory jurisdiction pursuant to 28 U.S.C. 1254(1).

2

CONSTITUTIONAL PROVISIONS INVOLVED

“No person shall . . . be deprived of life, liberty, or property, without due

process of law.” U.S. Const. Amend. V.

Further, the due process clause of the Fourteenth Amendment protects a

defendant in a criminal case against conviction except upon proof beyond a

reasonable doubt of every element of the crime with which he is charged. U.S.

Const. Amend. XIV.

3

STATEMENT OF THE CASE

On September 19, 2013, an Indictment was filed in the Eastern District of

Louisiana, charging Deloyd “Puggy” Jones, Byron “Big Baby” Jones, Sidney “Duda

Man” Patterson, and 9 others with several violations of the Racketeer Influenced

and Corrupt Organizations (RICO) Conspiracy. The 20-count indictment alleged

that all named defendants were members of the group “Ride or Die” (ROD) that

operated out of the Eighth Ward of New Orleans. Essentially, Count 1 charged

three defendants with a RICO conspiracy1; Count 2 charged all defendants with a

Federal Controlled Substances Act (FCS) conspiracy2; Count 3 charged all

defendants with a Federal Gun Control Act (FGC) conspiracy3; Count 4 charged an

individual defendant with violating the FCS; and Counts 5 through 20 charged

individual Defendants with various violations of the Violent Crimes in Aid of

Racketeering Act (VICAR) and the FGC4.

1 This count charged “Deloyd Jones, Byron Jones, and Sidney Patterson with membership in

a criminal enterprise operating in the Eighth Ward of New Orleans known as "Ride or Die." Count 1

further charged a broad RICO conspiracy beginning in or about 2007 to distribute controlled

substances and to commit murder, robbery, battery, and assault in furtherance of the conspiracy.

Count 1 contained 52 overt acts, including the murder of four individuals. Each of the non-RICO

Defendants is mentioned at least once in the overt acts section of Count 1.

2 This count charged “all defendants with a conspiracy beginning in or about 2008 to

distribute and possess with the intent to distribute 280 grams or more of crack cocaine and nonspecific quantities of heroin and marijuana.”

3 This count charged the defendants with a conspiracy beginning in or about 2007 to possess

and use firearms in furtherance of the crimes charged in Counts 1 and 2..

4 These counts charged one or more of the RICO Defendants with various violations of the

VICAR and the FGC, and those pertinent to Mr. Patterson are: Count 5 charges B. Jones and

Patterson with the February 24, 2010 murder of Travis Arnold in order to increase their position and

status in Ride or Die. Count 6 charges the two defendants with discharging an unknown firearm

which caused the death of Travis Arnold, in furtherance of the crimes charged in Counts 1 and 2.

Count 7 charges B. Jones and Patterson with assaulting an individual identified as "I.R." with a

dangerous weapon in order to increase their position and status in Ride or Die. Count 8 charges B.

Jones and Patterson with discharge of an unknown firearm in furtherance of the crimes charged in

Counts 1 and 2.

Count 13 charges D. Jones and Patterson with assaulting an individual identified as "J.J."

4

Mr. Patterson was specifically charged in Count 1 with a violation of the Federal

RICO Act, in violation of 18 USC 1962; in Counts 5, 7, 13, and 19 with violations of

the Federal RICO Act, in violation of 18 USC 1959; in Counts 3, 6, 8, 14, and 20

with violations of the Federal Gun Control Act, in violation of 18 USC 924(c)(1)(A),

924(j) and 924(o); and in Count 2 with a violation of the Federal Controlled

Substance Act, in violation of 21 USC 846, 21 USC 841(a)(1).

On August 13, 2015, Defendants Tre Clements, Ervin Spooner, Romalis

Parker, Nyson Jones, Morris Summers, Tyone Burton, Tyrone Burton, and Perry

Wilson entered into plea agreements with the government and were rearraigned,

pleading guilty to Counts 1 and 2 of a superseding bill of information.5 A revised

indictment was filed, naming only Byron, Deloyd, and Patterson.

Trial began August 17, 2015, and continued through August 28, 2015. At

trial, it was alleged that ROD was responsible for drug dealing, murders, and

general terrorizing of the Eighth Ward, in violation of RICO. As noted above, the

indictment charged 20 counts, including a RICO conspiracy, a federal controlled

substances conspiracy (the members would deal drugs in the St. Roch

neighborhood); a federal gun control act conspiracy (the members would stash guns

with a dangerous weapon on or about January 6, 2011 in order to increase their position and status

in Ride or Die. Count 14 charges D. Jones and Patterson with discharging a known firearm on

January 6, 2011 in furtherance of the crimes charged in Counts 1 and 2.

Count 19 charges D. Jones and Patterson with the murder of Corey Blue on or about January

18, 2011 in order to increase their position and status with Ride or Die. Count 20 charges the two

defendants with discharging an unknown firearm and a known firearm which caused the death of

Corey Blue, in furtherance of the crimes charged in Counts 1 and 2.

5

Andrealie Lewis previously pled in March of 2014. Tyrone Burton received 10 years and one

month; Ervin Spooner, who testified at trial, received nine years; Perry Wilson, who testified at trial,

was sentenced to nine years; Tre Clements received eight years; Nyson Jones was sentenced to seven

years and three months; Romalis Parker was sentenced to five years and 10 months; Tyrone Burton

received five years; Morris Summers was sentenced to five years; and Andrealie Lewis, who testified

at trial, was sentenced to four years.

5

for use to enforce and protect their territory); and several individual overt acts, all

of which allegedly occurred from 2007-2013. Because of this alleged sprawling

conspiracy, the government called approximately 60 witnesses at trial, many of

whom were law enforcement officers merely responsible for unconnected and

unrelated arrests of the Defendants over the years. As there were several individual

acts comprising the many counts, no coherent factual story was presented at trial.

In fact, many witnesses that testified did not connect any individual acts to ROD,

either did not see who shot them or did not witness the actual crimes occurring, and

did not show how these arrests were related to, and supported, a RICO enterprise.

Moreover, many witnesses were testifying in exchange for leniency or had drug

habits that prevented coherent recollection of facts.

Following the close of the government’s case, all defense counsel made

Motions for Acquittal under Rule 29, which were denied. The defense did not put on

any witnesses. Jury deliberations lasted approximately 13 hours over two days,

during which the jury asked four questions. The jury thereafter returned verdicts

as follows:

Count 1—guilty as to all three Defendants, with an answer of “yes” to the first

special question relative to a conspiracy involving 280 grams or more of cocaine; and

no to the remaining special questions; Counts 2 and 3—guilty as to all three

Defendants; Count 5—guilty as to Byron Jones and not guilty as to Mr. Patterson;

Count 6—guilty as to Byron Jones and not guilty as to Mr. Patterson; Count 7—

6

guilty as to Byron Jones and not guilty as to Mr. Patterson; Count 8— guilty as to

Byron Jones and not guilty as to Mr. Patterson; Count 9—guilty as to Byron Jones;

Count 10—guilty as to Byron Jones; Count 11—not guilty as to Deloyd Jones; Count

12—not guilty as to Deloyd Jones; Count 13—guilty as to Deloyd Jones and Mr.

Patterson; Count 14— guilty as to Deloyd Jones and Mr. Patterson; Count 15—

guilty as to Deloyd Jones; Count 16—guilty as to Deloyd Jones; Count 17—guilty as

to Deloyd Jones; Count 18—guilty as to Deloyd Jones; Count 19—guilty as to

Deloyd Jones and Mr. Patterson; and Count 20—guilty as to Deloyd Jones and Mr.

Patterson.

Sentencing was ultimately held May 20, 2016. Finding an offense level of 46

and a criminal history category level of V, the district court sentenced Petitioner to

life on Counts 1, 2, 19, and 20; 240 months on Counts 3 and 13 to run concurrent;

and 120 months consecutive on Count 14, as required under 18 USC §924.

Appeal was taken to the United States Fifth Circuit Court of Appeals, and on

October 13, 2017, that Court vacated Counts 13 and 14 of Mr. Patterson’s conviction

and remanded for resentencing. United States v. Jones, et al., 873 F.3d 482 (5th Cir.

2017), App. 1a-24a. Resentencing was held February 21, 2018, and Petitioner was

sentenced to the same term of life on Counts 1, 2, 19, and 20; and 240 months on

Count 3, to run concurrent.

In the interim, Sessions v Dimaya, 584 U.S. __, 138 S.CT. 1204 (2018) was

decided, and a second appeal was filed. The Fifth Circuit vacated Counts 3 and 20 of

7

Petitioner’s conviction, and once again remanded for resentencing. United States v.

Jones, 935 F.3d 266 (2019), App. 25a-35a. The second resentencing was held

November 7, 2019, and Petitioner was sentenced to the same term of life on Counts

1, 2, and 19.

In order to preserve all of Mr. Patterson’s claims, a Motion for Summary

Disposition was then filed with the Fifth Circuit, which was granted on June 23,

2020. United States v. Jones, 810 Fed.Appx. 333 (Mem) (June 23, 2020). This

Petition for Certiorari follows.

REASONS FOR GRANTING THE PETITION

A conviction based on less than sufficient evidence is a due process violation.

When considering sufficiency of the evidence, the standard that guides a reviewing

court is "whether viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found defendant guilty, beyond a

reasonable doubt, of every element of the crime charged.” Jackson v. Virginia, 443

U.S. 307 (1979). The Fifth Amendment provides that “[n]o person shall . . . be

deprived of life, liberty, or property, without due process of law.” The due process

clause of the Fourteenth Amendment further protects a defendant in a criminal

case against conviction except upon proof beyond a reasonable doubt of every

element of the crime with which he is charged. In Re Winship, 397 U.S. 358 (1970).

8

A. The application of a vague racketeering statute to prosecute

unsophisticated criminal activity not contemplated by the legislative intent of RICO

runs afoul of due process requirements.

The Racketeer Influenced and Corrupt Organization Act (RICO) was passed

in 1970 as one part of the Organized Crime Control Act of 1970, with the declared

purpose of seeking to eradicate organized crime in the United States. Russello v.

United States, 464 U.S. 16, 26-27 (1983); United States v. Turkette, 452 U.S. 576,

589 (1981); 18 U.S.C. §§ 1961–1968 (1970). Legislative history specifies that it was

“designed to attack the infiltration of legitimate business”. 115 Cong. Rec. 9566,

9567 (1969) (statement of Sen. John L. McClellan). Put another way, the purpose

was to fight organized criminal activity “that annually drains billions of dollars

from America's economy.” Organized Crime Control Act of 1970, Pub. L. No. 91-452,

1970 U.S.C.C.A.N. (84 Stat. 922) 1073, 1073. Thus, RICO enabled the government

to prosecute individual members of criminal enterprises that worked together as

one entity, using disparate acts by individuals in order to try the group as a whole.

The primary focus, then, was the Mafia and its effect on legitimate business.

Beginning in the 1990s, however, street gangs became a target, thanks to RICO’s

broadly defined “enterprise” requirement.

Under the federal RICO Act, someone commits the crime of racketeering

when he: (a) uses income received from a pattern of racketeering activity to acquire

an interest in an enterprise, (b) acquires an interest in an enterprise through a

pattern of racketeering activity, or (c) conducts or participates in the affairs of an

9

enterprise through a pattern of racketeering activity. 18 U.S.C. §1962. Enterprise is

defined by 18 U.S.C. §1961(4) as “any individual, partnership, corporation,

association, or other legal entity, and any union or group of individuals associated

in fact although not a legal entity”. However, there is not much statutory guidance

on what constitutes an enterprise, and in fact seems to be disagreement as to how to

apply this element. Essentially, it includes any association of a group of individuals,

legally recognized or not, involved in either legitimate or illegitimate businesses.

United States v. Turkette, 452 U.S. at 581–82. This Court has further held that an

association-in-fact enterprise is “a group of persons associated together for a

common purpose of engaging in a course of conduct” and “is proved by evidence of

an ongoing organization, formal or informal, and by evidence that the various

associates function as a continuing unit.” Boyle v. United States, 556 U.S. at 944–

45 (citing Turkette, 452 U.S. at 580, 583).

And that is what the United States Fifth Circuit Court of Appeals found

when denying Mr. Patterson’s direct appeal—that “ROD had a clear purpose—

selling drugs and protecting those drug sales and the group’s members—and its

members were associated with one another.” United States v. Jones (2017), App. 6a.

That Court then gave cursory review to the arguments raised by each appellant as

to the individual acts comprising the RICO charge, finding those acts did show a

pattern of racketeering activity, but without much discussion. Id. at 7a.

The law also provides no one may be charged under RICO unless his/her

10

enterprise is engaged in interstate commerce or the enterprise's activities affect

interstate commerce. 18 U.S.C. § 1962(c). This Court has held that an enterprise is

“engaged in commerce” when it is “directly engaged in the production, distribution,

or acquisition of goods or services in interstate commerce.” United States v.

Robertson, 514 U.S. 669, 672 (1995) (quoting United States v. Am. Bldg. Maint.

Indus., 422 U.S. 271, 283 (1975)). This inclusion of a commerce element is designed

to ensure the RICO statute is applied without violating the Constitution, namely

Congress’s permissible regulatory power under the Commerce Clause. See U.S.

Const. art. I, §8, cl. 3 (granting Congress power to, inter alia, regulate interstate

commerce); United States v. Lopez, 514 U.S. 549, 558–59 (1995). Yet the Fifth

Circuit did not necessarily address this aspect of the elements, and while trial

counsel stipulated to the firearms as affecting interstate commerce, if there is no

enterprise these are simply individual crimes that cannot support racketeering.

In fact, the actions of ROD are the sort of unsophisticated criminal activities

normally left to the states to prosecute. See, e.g., United States v. Morrison, 529

U.S. 598, 616–18 (2000) (discussing the Constitutional protections given by a

division of power and the line between federal and state regulation, where

noneconomic intrastate violence is properly left to states). Interestingly, the district

court granted a motion in limine at trial preventing the government from “labeling

the defendant with an alias, nickname, moniker or AKA”; to prevent the

government from “offering Evidence that the Defendant was Affiliated with a

11

“Gang” and/or “ROD” and/or “Ride or Die””; and to prevent the government from

“Referencing Fear of Retaliation or Other Adverse Consequences to Cooperating

Witnesses”, which suggests that references to gangs and gang activity to fit a

prosecution into a RICO enterprise is overreaching.

And yet this overly vague federal statute was improperly expanded in this

case to prosecute ordinary street crime, where it is arguable that this alleged

criminal street gang 1) is an enterprise that 2) substantially affects interstate

commerce. A conviction fails to comport with due process if the statute under which

it is obtained fails to provide a person of ordinary intelligence fair notice of what is

prohibited, or is so standardless that it authorizes or encourages seriously

discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732 (2000); see also

Grayned v. City of Rockford, 408 U.S. 104, 108–109 (1972). And that is precisely

how RICO was used.

In the instant case, the broad ranging conspiracy charge alleged that

beginning in or about 2007, members of ROD distributed controlled substances and

committed murder, robbery, battery, and assault in furtherance of the RICO

conspiracy. Count 1 contained 52 overt acts, including the murder of four people.

Importantly, the district court instructed that:

In order to convict a defendant on the RICO conspiracy offense based

on an agreement to violate Section 1962(c), the government must prove

the following five elements beyond a reasonable doubt: First, the

existence of an enterprise or that an enterprise would exist; second, the

enterprise was or would be engaged in, or its activities affected or

would affect, interstate or foreign commerce; third, a conspirator was

or would be employed by or associated with the enterprise; fourth, a

12

conspirator did or would conduct or participate in, either directly or

indirectly, the conduct of the affairs of the enterprise; and fifth, a

conspirator did or would knowingly participate in the conduct of the

affairs of the enterprise through a pattern of racketeering activity, as

described in the indictment; that is, a conspirator did or would commit

at least two acts of racketeering activity.

Emphasis added. This analysis is dependent on the acknowledgment of an

enterprise, which does not exist in Mr. Patterson’s case. What renders a statute

vague is not the possibility that it will sometimes be difficult to determine whether

the incriminating fact it establishes has been proved; but rather the indeterminacy

of precisely what that fact is. See, e.g., United States v. Williams, 553 U.S. 285, 306

(2008).

The government argued, and the Fifth Circuit appeared to agree, that ROD

was an association-in-fact enterprise falling under the strictures of RICO. “[A]n

association-in-fact enterprise is simply a continuing unit that functions with a

common purpose. Such a group need not have a hierarchical structure or a ‘chain of

command’; decisions may be made on an ad hoc basis and by any number of

methods—by majority vote, consensus, a show of strength, etc.”. Boyle v. United

States, 556 U.S. at 948. A conspirator must know of, and agree to, the overall

objective of the RICO offense. Salinas v. United States, 522 U.S. 52, 61-66 (1977).

Here, however, the government entirely failed to show an enterprise, and merely

calling it an association-in-fact does not make it so. Without an enterprise, the

RICO conspiracy must fall. Moreover, this vague application of an ‘enterprise’ must

fail as an element, as it clearly authorizes and even encourages “arbitrary and

13

discriminatory enforcement.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999)

(referencing Kolender v. Lawson, 461 U.S. 352, 357 (1983). Petitioner would

respectfully suggest guidance is necessary on this issue.

A criminal law…must not permit policemen, prosecutors, and juries to

conduct “ ‘a standardless sweep ... to pursue their personal predilections.’ ” City of

Chicago v. Morales, 527 U.S. at 65 (1999) (O'Conner concurring). In fact, there is

some argument to be made that the application of RICO to street gangs is a racially

biased process. See, e.g., Jordan B. Woods, Systemic Racial Bias and RICO's

Application to Criminal Street and Prison Gangs, 17 MICH. J. RACE & L. 303

(2012). “The urgent need for a federal statute to protect American society from

criminal groups like the Mafia (Italian and Sicilian "outsiders") has transformed

into an urgent need for a federal statute to protect American society from criminal

groups like the Bloods, Crips, and MS-13 (Black and Latino "outsiders").” Id. at 311.

While these “figures are not conclusive evidence of systemic racial bias, [] they do

indicate a high representation of racial minorities in terms of the prosecuted groups

and individuals associated with those groups in the sample.” Id. at 330, finding that

roughly 86% percent of prosecutions were directed at groups containing at least one

racial minority group.

This vague and discriminatory enforcement becomes especially violative of

due process considering the government’s own witnesses in this case did not support

the development of an enterprise, testifying that every one of them acted as a “lone

14

wolf”. Witnesses the government argued were members and associates of ROD

testified that no money was pooled, no drugs were shared, no one bought drugs

together, no one sold together; basically it was each person for himself. While the

Fifth Circuit noted this, it did not appear to consider the specifics of the testimony

or how it did not support a ROD “enterprise”. Lone wolves are not a collective acting

together to further a unified association-in-fact.

For example, Aaron Rudolph, an alleged ROD member from 2008-2011,

testified that there was no leader of ROD, that all members were independent, that

they did not share money, and Rudolph never got drugs from any other members of

ROD. Andrealie Lewis, an alleged member/associate of ROD, testified that the

people she named as being involved with ROD never pooled their money from drug

sales, and that they each kept what they made. Erick Garrison, who claimed to be a

founding member of ROD, testified that he and other ‘members’ did not buy drugs

together, that there was no swearing in to be a part of ROD, and that no tattoo was

needed to be part of the supposed group. Garrison confirmed that ROD did not

share money or drugs. Chakia Boutte, who grew up in the area and was familiar

with ROD, testified that the men were not in a gang, and that ROD was just the

name of those who hung out at the neighborhood park.

Moreover, several of the alleged incidents charged in the indictment, if

admitting that they did occur, occurred for reasons other than ROD. For example,

Officer Rodney Vicknair testified about the March 20, 2011 traffic stop involving a

15

reported stolen car. Mr. Patterson was the only person caught from the occupants,

and no guns or drugs were found on him or in the vehicle. Officer Michael Pierce

testified about a March 3, 2008 traffic stop that resulted in finding crack cocaine on

Mr. Patterson’s person. The amount was consistent with personal use, and no

firearms were found. He was 16 at the time. Officer Jehan Senanayake conducted a

May 26, 2010 traffic stop where he testified he saw Mr. Patterson place a firearm

between the seat and center console. Petitioner stated that he had been shot

previously and had the gun for protection.

It cannot be argued that these incidents were in furtherance of a ROD

enterprise, a fact the Fifth Circuit glosses over in its opinion. “On sufficiency

review, a reviewing court makes a limited inquiry tailored to ensure that a

defendant receives the minimum that due process requires: a “meaningful

opportunity to defend” against the charge against him and a jury finding of guilt

“beyond a reasonable doubt.”” Musacchio v. United States, 136 S. Ct. 709, 715

(2016), (citing Jackson v. Virginia, 443 U.S. at 314–315). Petitioner cannot

meaningfully defend himself against a vague statute that allows the prosecution to

simply claim an enterprise exists, and therefore all activities by anyone alleged to

be a part of that enterprise must therefore be in support of racketeering.

This Court discussed in Boyle v. United States that because there are no

specific enterprise requirements in the RICO statute, a broad application is

permitted under this vague statute.

[T]he breadth of the “enterprise” concept in RICO is highlighted by

16

comparing the statute with other federal statutes that target organized

criminal groups. For example, 18 U.S.C. § 1955(b), which was enacted

together with RICO as part of the Organized Crime Control Act of

1970, Pub. L. 91–452, 84 Stat. 922, defines an “illegal gambling

business” as one that “involves five or more persons who conduct,

finance, manage, supervise, direct, or own all or part of such business.”

A “continuing criminal enterprise,” as defined in 21 U.S.C. § 848(c),

must involve more than five persons who act in concert and must have

an “organizer,” supervisor, or other manager. Congress included no

such requirements in RICO.

556 U.S. at 949. Petitioner would again argue that this vague definition of

enterprise is a direct violation of due process, and resulted in his conviction absent

adequate

evidence.

“The

prohibition

of

vagueness…is

a

well-recognized

requirement, consonant alike with ordinary notions of fair play and the settled rules

of law,” and a statute that flouts it “violates the first essential of due process.”

Johnson v. United States, 576 U.S. 591, 595–96 (2015) (citing Connally v. General

Constr. Co., 269 U.S. 385, 391 (1926)). “The “enterprise” is not the “pattern of

racketeering activity”; it is an entity separate and apart from the pattern of activity

in which it engages.

The existence of an enterprise at all times remains a separate element which

must be proved by the Government.” United States v. Turkette, 452 U.S. at 583.

Petitioner acknowledges that this Court’s historical take on association-in-fact

enterprises is a broad one, but suggests that, given the expanding use of RICO and

the implicit biases connected its enforcement, this issue is ripe for reconsideration.

There is no evidence, or even suggestions, of “rules, routines, or processes through

which the entity maintains its continuing operations and seeks to conceal its illegal

17

acts.” Boyle v. United States, 556 U.S. at 956, J. Stevens dissenting, J. Breyer

joining. After all, “where Congress borrows terms of art in which are accumulated

the legal tradition and meaning of centuries of practice, it presumably knows and

adopts the cluster of ideas that were attached to each borrowed word”. Morissette v.

United States, 342 U.S. 246, 263 (1952). See also Molzof v. United States, 502 U.S.

301, 307–308 (1992) (the principle of statutory construction provides that, absent

contrary indications, Congress intends to adopt the common law definition of

statutory terms). With no clear and easily definable usage of “enterprise” however,

no petitioner can defend himself against activity only the government can

determine to be racketeering.

The Constitution does not permit a legislature to “set a net large enough to

catch all possible offenders, and leave it to the courts to step inside and say who

could be rightfully detained, and who should be set at large.” City of Chicago v.

Morales, 527 U.S. at 60, (citing United States v. Reese, 92 U.S. 214, 221 (1876)). Yet

that is precisely what has happened in this case—and Mr. Patterson respectfully

argues his conviction cannot stand. After all, the fact that the application of

“enterprise” to street gangs under RICO prosecutions continues to be a disputed

argument demonstrates “that the failure of “persistent efforts ... to establish a

standard” can provide evidence of vagueness. Johnson v. United States, 576 U.S. at

598 (citing United States v. L. Cohen Grocery Co., 255 U.S. 81, 91 (1921)).

18

B.

The government failed to show that two or more persons joined

together to pursue any unlawful objective and that there was no functioning

cohesive RICO enterprise, thus Mr. Patterson’s conviction for a Federal Controlled

Substances Act (FCS) conspiracy cannot stand.

Petitioner also was found guilty of a Federal Controlled Substances Act (FCS)

conspiracy, alleging that beginning in or about 2008, members conspired to

distribute and possess with the intent to distribute 280 grams or more of crack

cocaine and non-specific quantities of heroin and marijuana. As argued above under

Count 1, and as testified to by several witnesses at trial, there was no evidence of

concerted drug sales, shared profits, an organized distribution method or even

regular drug sales, and the government failed to show that two or more persons

joined together to pursue any unlawful objective. They did not present any evidence

that clearly demonstrated ROD was functioning as a cohesive enterprise or that it

even had an objective. At no time was any testimony presented showing this group

of people were acting in concert or working to advance the objective of a unified

group.

C. The government failed to show a functioning RICO enterprise, which

coupled with a general lack of sufficient evidence, shows Mr. Patterson’s murder

conviction cannot stand.

Petitioner was convicted of murder in aid of racketeering for the January 18,

2011 death of Corey Blue. Under this Count, the district court charged that in order

to find Mr. Patterson guilty, the government had to prove:

First, the existence of an enterprise as defined in 18. U.S.C., 1959(b)(2)

on or about the time period described in the relevant counts (which I

may refer to as the Section 1959 enterprise); second, the charged

enterprise engaged in or its activities affected, interstate or foreign

19

commerce; third, the enterprise engaged in racketeering activity as

defined in 18 U.S.C., 1959(b)(1) and 1961(1); fourth, the defendant

committed the alleged crime of violence in violation of state or federal

law; and fifth, the defendant's purpose in committing the crimes of

violence was to gain entrance to, or to maintain, or to increase position

in the enterprise.

Emphasis added. First, as argued above, the government failed to prove the

existence of an enterprise in this case, such that Petitioner cannot be convicted of

this Count. Curiously, the Fifth Circuit found insufficient evidence to connect

Counts 13 and 14 (murder of Rodney Coleman) to ROD activity, under similar

circumstances. “[T]here is insufficient proof regarding the relationship between the

shooting and ROD or the charged conspiracies and thus a failure of proof on how the

shooting was in “aid of racketeering.” App. 12a-13a. However, no analysis was ever

given as to where the proof fell short. Here, the Court’s determination that “Deloyd

‘punished’ Blue in relation to ROD’s drug trade” is an overstatement of the

testimony at trial, and attributes motives where no enterprise exists. App. 15a.

Moreover, the testimony falls woefully short of proof, violating Mr.

Patterson’s due process right to be convicted on sufficient evidence. Officer Richard

Chambers responded to the scene, and testified that any witnesses were

uncooperative. Officer Chambers did clarify that alleged eyewitness Kevin Johnson

had only heard gunshots, meaning he could not have witnessed the shooting. Yet

Kevin Johnson, Blue’s convicted felon cousin, claimed at trial that he heard

gunshots and ran outside where he saw Mr. Patterson and Deloyd jump into a car.

His trial testimony was directly contradicted by a 911 call that reported this

20

incident as a drive-by shooting. It also was directly contradicted by the physical

evidence at the scene, and Johnson could not explain why there were no bullet holes

in the doorframe of the house, considering he testified that Petitioner shot at the

house. Jamal Holmes testified that while he was in jail with the Defendants, they

admitted their roles in Blue’s death. However, it was learned on ATF Agent

Doreck’s that the statements allegedly made by Byron Jones to Jamal Holmes and

Darryl Arnold likely did not happen, as these men were not housed together at the

right times. A reasonable factfinder could not have found Mr. Patterson guilty of

this count. In addition to the government’s failure to prove an enterprise existed, it

did not prove that Mr. Patterson killed Corey Blue. There was no physical evidence

connecting him to the crime, and the sole eyewitness’ testimony was contradicted by

all other testimony and evidence presented, and that eyewitness had a definite

motive to change his story to point the finger at Petitioner. Mr. Patterson’s

conviction, based on insufficient evidence and the lack of an enterprise, violates due

process and must be corrected.

D. Petitioner adopts by reference the arguments raised by his co-defendants.

To the extent these arguments do not conflict with Mr. Patterson’s, he would

respectfully adopt the arguments of his co-defendants, filing petitions separately

but stemming from the same direct appeal.

21

CONCLUSION

The RICO statute does not sufficiently define “enterprise” such that a

defendant has adequate notice of what that entails. Moreover, there does not appear

to be a consensus as to when unsophisticated criminal activity crosses the line into

racketeering, and the application of this vague reasoning means everyday criminals

are swept up into prosecutions that are intended for organized groups affecting

legitimate businesses. The lower Court’s decision broadens this application even

further, finding a mere association-in-fact even though according to every fact

witness that testified, all acts herein were done individually, and for personal gain.

There was no sharing, no pooling of resources, no selling together, and no real

knowledge of what the other people were even doing. There was no enterprise, and

thus all other counts dependent on that enterprise must also fall. It is well settled

that the burden of proof rests with the government, and a defendant is not required

to prove his innocence. A court must “guard against dilution of the principle that

guilt is to be established by probative evidence and beyond a reasonable doubt”.

Estelle v. Williams, 425 U.S. 501, 503 (1976). There is no clear direction as to the

application of “enterprise”, and Petitioner respectfully suggests guidance from this

Court is warranted.

For the foregoing reasons, this Honorable Court should grant the Petition.

22

LAW OFFICE OF AUTUMN TOWN, LLC

Autumn Town

700 Camp Street

New Orleans, Louisiana 70130

Telephone: (504) 507-0832

Fax: (504) 324-0216

Email: autumn@town-law.com

Counsel for Sidney Patterson

23

No. ____________________________

IN THE SUPREME COURT OF THE UNITED STATES

____________________________

SIDNEY PATTERSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent

____________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________________

APPENDIX

____________________________

A.

Opinion of the United States Fifth Circuit Court of Appeals (October

13, 2017) Affirming Petitioner’s Conviction on all counts except 13 and

14, and remanding for resentencing in conformity therewith 1a-24a

B.

Opinion of the United States Fifth Circuit Court of Appeals (August

12, 2019) Granting Petitioner’s second appeal and dismissing counts 3

and 20 and remanding for resentencing in conformity therewith 25a35a

C.

Opinion of the United States Fifth Circuit Court of Appeals (June 23,

2020) Granting Petitioner’s Motion for Summary Disposition 36a-37a

24