Petition for Writ of Certiorari — Nardino Colotti, et al., Petitioners v. United States

Supreme Court briefDec 11, 2023

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No. 22-_____

________________________________________________________________________

In the

Supreme Court of the United States

_____________________________________________

Nardino Colotti, Alex Rudaj, Prenka Ivezaj,

Nikola Dedaj, and Angelo DiPietro,

Petitioners,

-v.United States of America,

Respondent.

_____________________________________________

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

__________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________________________

Michael S. Schachter

Ravi Chaderraj

Willkie Farr & Gallagher LLP

787 7th Avenue

New York, NY 10019

Tel.: (212) 728-8102

Rchanderraj@willkie.com

Counsel to Prenka Ivezaj

Anthony DiPietro

Law Offices of Anthony DiPietro, P.C.

15 Chester Avenue

White Plains, NY 10601

Tel.: (914) 948-3242

dipietrolaw@yahoo.com

Counsel to Angelo DiPietro

Edward S. Zas

Counsel of Record

Sarah Baumgartel

Federal Defenders of New York, Inc.

52 Duane Street, 10th Floor

New York, NY 10007

Tel.: (212) 417-8742

Edward_Zas@fd.org

Counsel to Nardino Colotti,

Alex Rudaj, and Nikola Dedaj

QUESTIONS PRESENTED

The Racketeer Influenced and Corrupt Organizations Act (RICO), 18

U.S.C. § 1962(c), outlaws participating in an “enterprise” through “a pattern

of racketeering activity.” RICO defines “racketeering activity” to include any

act “indictable” under certain enumerated federal statutes, id. § 1961(1)(B),

and “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,” id. § 1961(1)(A).

The questions presented are:

1. Does § 1961(1)(A) of RICO incorporate—and thereby require the

Government to plead and prove beyond a reasonable doubt—the elements of

specific state-law offenses charged as “racketeering activity,” as the Second

Circuit holds, or does this provision reference only generic categories of

offenses, as the Third, Fifth, Sixth, Eighth, and Eleventh Circuits hold?

2. Is RICO’s “racketeering activity” element “divisible,” such that

courts may use the “modified categorical approach” and consider the

individual racketeering acts proven in a particular case to determine if the

defendant’s RICO violation qualifies as an 18 U.S.C. § 924(c) “crime of

violence,” as the Second and Third Circuits hold, or are these various acts

merely different “means” of committing the single, indivisible element of

“racketeering activity,” as the Fourth and Fifth Circuits hold?

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................................................. i

PETITION FOR A WRIT OF CERTIORARI ..................................................... 1

RELATED PROCEEDINGS ............................................................................... 1

OPINIONS AND ORDERS BELOW .................................................................. 4

JURISDICTION ................................................................................................... 4

RELEVANT STATUTORY PROVISIONS ......................................................... 4

STATEMENT OF THE CASE ............................................................................ 9

Introduction...................................................................................... 9

Legal Background: RICO, Crimes of Violence, and the

“Categorical Approach” .................................................................. 13

Petitioners’ Convictions and Appeals ........................................... 17

REASONS FOR GRANTING THE PETITION ............................................... 20

The circuits are divided over RICO’s elements and the statute’s

divisibility ................................................................................................. 21

The circuits are split over whether RICO incorporates the

elements of state penal codes or only references generic

offense categories ........................................................................... 21

The circuits are also divided over RICO’s divisibility ................. 25

II.

This Court should decide the elements of a RICO offense and

whether RICO is a “divisible” statute..................................................... 27

III.

This case presents an excellent vehicle to resolve these conflicts ........ 29

IV.

The Second Circuit’s holdings are wrong ............................................... 31

CONCLUSION ................................................................................................... 36

PETITIONERS’ APPENDIX

Opinion of the United States Court of Appeals for the Second Circuit,

Nardino Colotti, et al. v. United States, Nos. 21-932(L), 21-937(Con),

21-950(Con), 21-992(Con), 21-1548(Con), entered June 21, 2023 .............. 1a

iii

Judgment of the United States Court of Appeals for the Second Circuit,

Nardino Colotti, et al. v. United States, Nos. 21-932(L), 21-937(Con),

21-950(Con), 21-992(Con), 21-1548(Con), entered June 21, 2023 ............ 37a

Opinion and Order of the United States District Court for the Southern

District of New York, Alex Rudaj, et al. v. United States, Nos. 04

Cr. 1110 (DLC), 11 Cv. 1782 (DLC), 11 Cv. 1510, 11 Cv. 1402 (DLC),

11 Cv. 1556 (DLC), 20 Cv. 4889 (DLC), entered March 29, 2021 ............ 38a

Order of the United States Court of Appeals for the Second Circuit Denying

Joint Petition on behalf of Nardino Colotti, Prenka Ivezaj, and Angelo

DiPietro for Panel Rehearing or Rehearing En Banc, Nardino Colotti, et al.

v. United States, Nos. 21-932(L), 21-937(Con), 21-950(Con), 21-992(Con),

21-1548(Con), entered September 11, 2023 .............................................. 67a

Order of the United States Court of Appeals for the Second Circuit Denying

Nikola Dedaj’s Petition for Panel Rehearing or Rehearing En Banc,

Nardino Colotti, et al. v. United States, Nos. 21-932(L), 21-937(Con),

21-950(Con), 21-992(Con), 21-1548(Con), entered September 11, 2023 .. 68a

Order of the United States Court of Appeals for the Second Circuit Denying

Alex Rudaj’s Petition for Panel Rehearing or Rehearing En Banc, Nardino

Colotti, et al. v. United States, Nos. 21-932(L), 21-937(Con), 21-950(Con),

21-992(Con), 21-1548(Con), entered September 11, 2023 ........................ 69a

TABLE OF AUTHORITIES

Federal Cases

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) ........................................................................................ 27

Borden v. United States,

141 S. Ct. 1817 (2021) .................................................................................... 15

Boyle v. United States,

556 U.S. 938 (2009) .................................................................................. 14, 27

Bridge v. Phoenix Bond & Indem. Co.,

553 U.S. 639 (2008) ........................................................................................ 27

Capozzi v. United States,

531 F. Supp. 3d 399 (D. Mass. 2021) ............................................................. 31

Casey v. Dep’t of State,

980 F.2d 1472 (D.C. Cir. 1992) ...................................................................... 35

Colotti v. United States,

71 F.4th 102 (2d Cir. 2023) ................................................ 4, 11, 17, 18, 19, 25

Descamps v. United States,

570 U.S. 254 (2013) ...................................................................... 15, 16, 32, 34

Eur. Cmty. v. RJR Nabisco, Inc.,

783 F.3d 123 (2d Cir. 2015) ............................................................................ 27

H.J. Inc. v. Nw. Bell Tel. Co.,

492 U.S. 229 (1989) .................................................................................. 28, 35

Johnson v. United States,

64 F.4th 715 (6th Cir. 2023) ............................................................... 10, 22, 23

Johnson v. United States,

576 U.S. 591 (2015) ........................................................................................ 18

Mathis v. United States,

579 U.S. 500 (2016) ............................................................................ 16, 17, 33

Moncrieffe v. Holder,

569 U.S. 184 (2013) ........................................................................................ 34

Moore v. United States,

519 U.S. 802 (1996) ........................................................................................ 23

Nat’l Org. for Women, Inc. v. Scheidler,

510 U.S. 249 (1994) .................................................................................. 22, 28

Salinas v. United States,

522 U.S. 52 (1997) .................................................................................... 14, 27

Scheidler v. Nat'l Org. for Women, Inc.,

537 U.S. 393 (2003) ........................................................................................ 30

Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479 (1985) .................................................................................. 14, 28

Shepard v. United States,

544 U.S. 13 (2005) .......................................................................................... 16

Taylor v. United States,

495 U.S. 575 (1990) .................................................................................. 32, 34

United States v. Applins,

637 F.3d 59 (2d Cir. 2011) .............................................................................. 34

United States v. Bagaric,

706 F.2d 42 (2d Cir. 1983) .............................................................................. 22

United States v. Carrillo,

229 F.3d 177 (2d Cir. 2000) ............................................................................ 11

United States v. Coonan,

938 F.2d 1553 (2d Cir. 1991) .......................................................................... 22

United States v. Davis,

588 U.S. ----, 139 S. Ct. 2319 (2019) .................................................. 14, 15, 18

United States v. Davis,

74 F.4th 50 (2d Cir. 2023) .............................................................................. 24

United States v. Ivezaj,

568 F.3d 88 (2d Cir. 2009) .................................................................. 17, 18, 25

United States v. Jackson,

180 F.3d 55 (2d Cir.), reh’g granted, 196 F.3d 383 (2d Cir. 1999) ............... 31

United States v. Kehoe,

310 F.3d 579 (8th Cir. 2002) .................................................................... 10, 22

United States v. Laurent,

33 F.4th 63 (2d Cir. 2022) ............................................................ 10, 19, 24, 25

United States v. Luong,

393 F.3d 913 (9th Cir. 2004) .......................................................................... 33

United States v. Martinez,

991 F.3d 347 (2d Cir. 2021) .............................................. 10, 11, 19, 24, 25, 35

United States v. McClaren,

13 F.4th 386 (5th Cir. 2021) ..................................................................... 12, 26

United States v. Ogando,

968 F.2d 146 (2d Cir. 1992) ............................................................................ 34

United States v. Pastore,

83 F.4th 113 (2d Cir. 2023) ............................................................................ 24

United States v. Salinas,

564 F.2d 688 (5th Cir. 1977) .......................................................................... 22

United States v. Shabazz,

564 F.3d 280 (3d Cir. 2009) ............................................................................ 28

United States v. Simmons,

11 F.4th 239 (4th Cir. 2021) ............................................................... 12, 26, 32

United States v. Taylor,

596 U.S. ----, 142 S. Ct. 2015 (2022) ............................................ 15, 16, 31, 32

United States v. Tolliver,

61 F.3d 1189 (5th Cir. 1995) .......................................................................... 23

United States v. Turkette,

452 U.S. 576 (1981) ........................................................................................ 28

United States v. Wallen,

953 F.2d 3 (1st Cir. 1991) ............................................................................... 33

United States v. Watchmaker,

761 F.2d 1459 (11th Cir. 1985) ................................................................ 10, 22

United States v. Welch,

656 F.2d 1039 (5th Cir. 1981) ............................................................ 10, 22, 23

United States v. Williams,

898 F.3d 323 (3d Cir. 2018) ............................................................................ 25

United States v. Yarbrough,

852 F.2d 1522 (9th Cir. 1988) ........................................................................ 33

Williams v. Stone,

109 F.3d 890 (3d Cir. 1997) ...................................................................... 10, 21

Federal Statutes

18 U.S.C. § 16 ..................................................................................................... 13

18 U.S.C. § 201 ................................................................................................... 13

18 U.S.C. § 924(c) ............... 8, 9, 11, 12, 13, 14, 15, 17, 18, 20, 25, 28, 29, 30, 35

18 U.S.C. § 1341 ................................................................................................. 13

18 U.S.C. § 1959 ................................................................................................. 24

Racketeer Influenced and Corrupt Organizations Act,

18 U.S.C. §§ 1961-1968

18 U.S.C. § 1961................................4, 9, 10, 12-14, 17, 20-24, 26-27, 30, 32

18 U.S.C. § 1962............................................. 13, 14, 17-19, 20, 25, 28, 31-33

28 U.S.C. § 1254(1) .............................................................................................. 4

28 U.S.C. § 1291 ................................................................................................... 4

28 U.S.C. § 2255 ............................................................................................. 4, 18

State Statutes

N.Y. Penal Law § 155.05 ................................................................................... 17

N.Y. Penal Law § 155.40 ................................................................................... 19

vii

Other Authorities

H.R. Rep. No. 1549, 91st Cong. 2d Sess. (1970) ............................................... 12

S. Rep. No. 91-617 (1969) .................................................................................. 12

U.S. Dep’t of Justice, Staff of the Organized Crime and Gang Section,

CRIMINAL RICO: 18 U.S.C. §§ 1961-1968, A Manual for Federal

Prosecutors (6th rev. ed. May 2016)................................................ 12, 13, 31

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully seek a writ of certiorari to review the judgment

of the United States Court of Appeals for the Second Circuit affirming the

denial of their motions to vacate, set aside, or correct their sentences under

28 U.S.C. § 2255.

RELATED PROCEEDINGS

The proceedings directly related to this petition, listed in reverse

chronological order, are:

1. Nardino Colotti, Alex Rudaj, Prenka Ivezaj, Nikola Dedaj, Angelo

DiPietro v. United States, Nos. 21-932(L), 21-937(Con),

21-950 (Con), 21-992(Con), and 21-1548(Con) (consolidated)

(2d Cir.), consolidated judgment entered on June 21, 2023; and

2. Alex Rudaj, Nikola Dedaj, Nardino Colotti, Prenka Ivezaj, and

Angelo DiPietro v. United States, Nos. 04 Cr 1110 (DLC),

11 Cv 1782 (DLC), 11 Cv 1510 (DLC), 11 Cv 1402 (DLC),

11 Cv 1556 (DLC), 20 Cv 4889 (DLC) (S.D.N.Y.), judgment entered

on March 29, 2021; and

3. Alex Rudaj v. United States, Nos. 16-1650, 16-2452 (consolidated)

(2d Cir.), judgment entered on June 23, 2020; and

4. Angelo DiPietro v. United States, Nos. 16-1646, 16-2461

(consolidated) (2d Cir.), judgment entered on June 23, 2020; and

5. Nardino Colotti v. United States, Nos. 16-1649, 16-2455

(consolidated) (2d Cir.), judgment entered on June 23, 2020; and

6. Nikola Dedaj v. United States, Nos. 16-1676, 16-2456 (consolidated)

(2d Cir.), judgment entered on June 23, 2020; and

7. Prenka Ivezaj v. United States, Nos. 16-1580, 16-2450 (consolidated)

(2d Cir.), judgment entered on June 23, 2020; and

8. Alex Rudaj v. United States, No. 14-139 (2d Cir.), judgment entered

on July 10, 2014; and

9. Angelo DiPietro v. United States, No. 12-10801 (U.S.), judgment

entered on October 7, 2013; and

10. Nikola Dedaj v. United States, No. 12-753 (U.S.), judgment entered

on January 22, 2013; and

11. Angelo DiPietro v. United States, No. 12-2083 (2d Cir.), judgment

entered September 27, 2012; and

12. Nardino Colotti v. United States, No. 12-2308 (2d Cir.), judgment

entered on September 24, 2012; and

13. Nikola Dedaj v. United States, No. 12-2285 (2d Cir.), judgment

entered on September 24, 2012; and

14. Prenka Ivezaj v. United States, No. 12-2298 (2d Cir.), judgment

entered on August 14, 2012; and

15. Alex Rudaj v. United States, No. 12-258 (2d Cir.), judgment entered

on August 3, 2012; and

16. Alex Rudaj v. United States, No. 12-418 (2d Cir.), judgment entered

on March 30, 2012; and

17. Alex Rudaj v. United States, Nos. 11-2477, 11-2862, 11-2509

(consolidated) (2d Cir.), judgment entered on Nov. 23, 2011; and

18. United States v. Angelo DiPietro, No. 10-40 (2d Cir.), judgment

entered on June 29, 2010; and

19. Nardino Colotti v. United States, No. 09-917 (U.S.), judgment

entered March 8, 2010; and

20. Nikola Dedaj v. United States, No. 09-919 (U.S.), judgment entered

on March 8, 2010; and

21. Prenka Ivezaj v. United States, No. 09-916 (U.S.), judgment entered

on March 8, 2010; and

22. United States v. Prenka Ivezaj, Nardino Colotti, Alex Rudaj, Angelo

DiPietro, and Ljusa Nuculovic, Nos. 06-3112, 06-3275, 06-3296,

06-3339, 06-3372, 06-5908 (consolidated) (2d Cir.), judgment

entered on June 11, 2009; and

23. Angelo DiPietro v. United States, No. 08-8725 (U.S.), judgment

entered on March 23, 2009.

OPINIONS AND ORDERS BELOW

The Second Circuit’s opinion (Pet. App. 1a-36a1) is reported at 71

F.4th 102. The Second Circuit’s orders denying petitioners’ requests for panel

rehearing or rehearing en banc (Pet. App. 67a-69a) are unreported. The

district court’s opinion and order denying petitioners’ motions to vacate, set

aside, or correct their sentences (Pet. App. 38a-66a) is reported at 529

F. Supp. 3d 290.

JURISDICTION

The Second Circuit issued its judgment on June 21, 2023, and denied

timely petitions for rehearing on September 11, 2023. This Court has

jurisdiction under 28 U.S.C. § 1254(1). The Circuit had jurisdiction under 28

U.S.C. §§ 1291 and 2253. The district court had jurisdiction under 28 U.S.C.

§ 2255.

RELEVANT STATUTORY PROVISIONS

Section 1961 of title 18, U.S.C., provides in relevant part:

As used in this chapter—

(1) “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 or listed chemical (as defined in section

102 of the Controlled Substances Act), which is chargeable

1 “Pet. App.” refers to the appendix to this petition.

under State law and punishable by imprisonment for more than

one year; (B) any act which is indictable under any of the

following provisions of title 18, United States Code: Section 201

(relating to bribery), section 224 (relating to sports bribery),

sections 471, 472, and 473 (relating to counterfeiting), section

659 (relating to theft from interstate shipment) if the act

indictable under section 659 is felonious, section 664 (relating

to embezzlement from pension and welfare funds), sections 891894 (relating to extortionate credit transactions), section 932

(relating to straw purchasing), section 933 (relating to

trafficking in firearms), section 1028 (relating to fraud and

related activity in connection with identification documents),

section 1029 (relating to fraud and related activity in

connection with access devices), section 1084 (relating to the

transmission of gambling information), section 1341 (relating

to mail fraud), section 1343 (relating to wire fraud), section

1344 (relating to financial institution fraud), section 1351

(relating to fraud in foreign labor contracting), section 1425

(relating to the procurement of citizenship or nationalization

unlawfully), section 1426 (relating to the reproduction of

naturalization or citizenship papers), section 1427 (relating to

the sale of naturalization or citizenship papers), sections 14611465 (relating to obscene matter), section 1503 (relating to

obstruction of justice), section 1510 (relating to obstruction of

criminal investigations), section 1511 (relating to the

obstruction of State or local law enforcement), section 1512

(relating to tampering with a witness, victim, or an informant),

section 1513 (relating to retaliating against a witness, victim,

or an informant), section 1542 (relating to false statement in

application and use of passport), section 1543 (relating to

forgery or false use of passport), section 1544 (relating to misuse

of passport), section 1546 (relating to fraud and misuse of visas,

permits, and other documents), sections 1581-1592 (relating to

peonage, slavery, and trafficking in persons), sections 1831 and

1832 (relating to economic espionage and theft of trade secrets),

section 1951 (relating to interference with commerce, robbery,

or extortion), section 1952 (relating to racketeering), section

1953 (relating to interstate transportation of wagering

paraphernalia), section 1954 (relating to unlawful welfare fund

payments), section 1955 (relating to the prohibition of illegal

gambling businesses), section 1956 (relating to the laundering

of monetary instruments), section 1957 (relating to engaging in

monetary transactions in property derived from specified

unlawful activity), section 1958 (relating to use of interstate

commerce facilities in the commission of murder-for-hire),

section 1960 (relating to illegal money transmitters), sections

2251, 2251A, 2252, and 2260 (relating to sexual exploitation of

children), sections 2312 and 2313 (relating to interstate

transportation of stolen motor vehicles), sections 2314 and 2315

(relating to interstate transportation of stolen property), section

2318 (relating to trafficking in counterfeit labels for

phonorecords, computer programs or computer program

documentation or packaging and copies of motion pictures or

other audiovisual works), section 2319 (relating to criminal

infringement of a copyright), section 2319A (relating to

unauthorized fixation of and trafficking in sound recordings

and music videos of live musical performances), section 2320

(relating to trafficking in goods or services bearing counterfeit

marks), section 2321 (relating to trafficking in certain motor

vehicles or motor vehicle parts), sections 2341-2346 (relating to

trafficking in contraband cigarettes), sections 2421-24 (relating

to white slave traffic), sections 175-178 (relating to biological

weapons), sections 229-229F (relating to chemical weapons),

section 831 (relating to nuclear materials), (C) any act which is

indictable under title 29, United States Code, section 186

(dealing with restrictions on payments and loans to labor

organizations) or section 501(c) (relating to embezzlement from

union funds), (D) any offense involving fraud connected with a

case under title 11 (except a case under section 157 of this title),

fraud in the sale of securities, or the felonious manufacture,

importation, receiving, concealment, buying, selling, or

otherwise dealing in a controlled substance or listed chemical

(as defined in section 102 of the Controlled Substances Act),

punishable under any law of the United States, (E) any act

which is indictable under the Currency and Foreign

Transactions Reporting Act, (F) any act which is indictable

under the Immigration and Nationality Act, section 274

(relating to bringing in and harboring certain aliens), section

277 (relating to aiding or assisting certain aliens to enter the

United States), or section 278 (relating to importation of alien

for immoral purpose) if the act indictable under such section of

such Act was committed for the purpose of financial gain, or

(G) any act that is indictable under any provision listed in

section 2332b(g)(5)(B);

(2) “State” means any State of the United States, the District of

Columbia, the Commonwealth of Puerto Rico, any territory or

possession of the United States, any political subdivision, or

any department, agency, or instrumentality thereof; …

(4) “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;

(5) “pattern of racketeering activity” requires at least two acts

of racketeering activity, one of which occurred after the effective

date of this chapter and the last of which occurred within ten

years (excluding any period of imprisonment) after the

commission of a prior act of racketeering activity ….

Section 1962 of title 18, U.S.C., provides:

(a) It shall be unlawful for any person who has received any

income derived, directly or indirectly, from a pattern of

racketeering activity or through collection of an unlawful debt

in which such person has participated as a principal within the

meaning of section 2, title 18, United States Code, to use or

invest, directly or indirectly, any part of such income, or the

proceeds of such income, in acquisition of any interest in, or the

establishment or operation of, any enterprise which is engaged

in, or the activities of which affect, interstate or foreign

commerce. A purchase of securities on the open market for

purposes of investment, and without the intention of controlling

or participating in the control of the issuer, or of assisting

another to do so, shall not be unlawful under this subsection if

the securities of the issuer held by the purchaser, the members

of his immediate family, and his or their accomplices in any

pattern or racketeering activity or the collection of an unlawful

debt after such purchase do not amount in the aggregate to one

percent of the outstanding securities of any one class, and do

not confer, either in law or in fact, the power to elect one or more

directors of the issuer.

(b) It shall be unlawful for any person through a pattern of

racketeering activity or through collection of an unlawful debt

to acquire or maintain, directly or indirectly, any interest in or

control of any enterprise which is engaged in, or the activities

of which affect, interstate or foreign commerce.

associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity

or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate

any of the provisions of subsection (a), (b), or (c) of this section.

Section 924(c)(1)(A) of title 18, U.S.C., provides:

(c)(1)(A) Except to the extent that a greater minimum

sentence is otherwise provided by this subsection or by any

other provision of law, any person who, during and in

relation to any crime of violence or drug trafficking crime

(including a crime of violence or drug trafficking crime that

provides for an enhanced punishment if committed by the

use of a deadly or dangerous weapon or device) for which the

person may be prosecuted in a court of the United States,

uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the

punishment provided for such crime of violence or drug

trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5

years;

(ii) if the firearm is brandished, be sentenced to a term of

imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of

imprisonment of not less than 10 years.

Section 924(c)(3) of title 18, U.S.C., provides:

(3) For purposes of this subsection the term “crime of

violence” means an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened

use of physical force against the person or property of

another, or

(B) that by its nature, involves a substantial risk that

physical force against the person or property of another may

be used in the course of committing the offense.

STATEMENT OF THE CASE

Introduction

The circuits are sharply divided over the elements of a Racketeer

Influenced and Corrupt Organizations Act (RICO) offense, and the related

question whether a criminal violation of RICO can qualify as a “crime of

violence” under 18 U.S.C. § 924(c)(3)(A). This case presents an ideal

opportunity for this Court to resolve this division over these two important

and recurring questions of federal law, which the Second Circuit has

answered erroneously.

RICO, 18 U.S.C. § 1961(1), defines “racketeering activity” to mean, in

addition to any act “indictable” under a long list of enumerated federal

statutes, id. § 1961(1)(B), “any act or threat involving murder, kidnapping,

gambling, arson, robbery, bribery, extortion, dealing in obscene matter or

dealing in a controlled substance or listed chemical … which is chargeable

under State law and punishable by imprisonment for more than one year,”

id. § 1961(1)(A). Five circuits—the Third, Fifth, Sixth, Eighth, and

Eleventh—hold that RICO’s references to these state crimes serve only a

“definitional purpose;” “they merely define the types of [state criminal]

activity that may constitute predicate acts pursuant to the federal RICO

statute.” Williams v. Stone, 109 F.3d 890, 895 (3d Cir. 1997). Thus, these

circuits hold, RICO does not incorporate—and the Government therefore

need not prove—the specific statutory elements of a state crime as defined by

the state in which racketeering activity occurred. See, e.g., Williams, 109 F.3d

at 895; United States v. Welch, 656 F.2d 1039, 1058-59 (5th Cir. 1981);

Johnson v. United States, 64 F.4th 715, 721-22 (6th Cir. 2023); United States

v. Kehoe, 310 F.3d 579, 588 (8th Cir. 2002); United States v. Watchmaker, 761

F.2d 1459, 1469 (11th Cir. 1985).

The Second Circuit holds the opposite. It holds that RICO does

incorporate—and thus requires the Government to plead and prove beyond a

reasonable doubt—the “precise elements” of “particular … state offenses” as

defined by the relevant state’s penal code when the Government wishes to

charge those state crimes as RICO racketeering acts. United States v.

Martinez, 991 F.3d 347, 358 (2d Cir. 2021); see also United States v. Laurent,

33 F.4th 63, 89 (2d Cir. 2022) (“RICO requires that the specific crimes

constituting the ‘pattern’ of the racketeering enterprise be identified in the

charging instrument and proven beyond a reasonable doubt.”); Colotti v.

United States, 71 F.4th 102, 111 (2d Cir. 2023) (decision below) (holding that,

under Martinez and Laurent, the predicate racketeering act incorporated into

RICO here was “New York larceny by extortion,” not “extortion” defined

generically); United States v. Carrillo, 229 F.3d 177, 183 (2d Cir. 2000)

(concluding that RICO requires the Government to prove “the elements of the

[state] offense as defined by state law”).

The circuits are also divided—two-to-two—over the related question

whether a criminal violation of RICO can qualify as a “crime of violence”

under 18 U.S.C. § 924(c). A crime is a “crime of violence” only if, as a

categorical matter, it is a felony that “has as an element the use, attempted

use, or threatened use of physical force against the person or property of

another.” § 924(c)(3)(A). RICO has no such element—it can be violated in

myriad ways that do not entail any force whatsoever. Nevertheless, the

Second and Third Circuits hold that RICO is divisible, supposedly allowing

courts to apply the modified categorical approach and look beyond the

statute’s elements to determine which underlying acts of “racketeering

activity” the defendant committed in a particular case. The Fourth and Fifth

Circuits hold the opposite: they recognize that RICO’s definition of

“racketeering activity” is not divisible because it merely “lists the means—the

alternative methods,” of violating RICO, not elements of separate RICO

crimes. United States v. Simmons, 11 F.4th 239, 260 (4th Cir. 2021); see also

United States v. McClaren, 13 F.4th 386, 413 (5th Cir. 2021).

This case presents an excellent vehicle for resolving these circuit splits

because the questions are not only cleanly presented but also dispositive: if

RICO incorporates only generic definitions of state crimes, not the elements

of the New York extortion statute in particular, or if RICO is not “divisible,”

then petitioners’ RICO offense would not qualify as a § 924(c) “crime of

violence,” and their § 924(c) convictions could not stand.

The Second Circuit’s holdings are also wrong. As the Government itself

has recognized, RICO does not incorporate the elements of specific state

criminal statutes. See U.S. Dep’t of Justice, Staff of the Organized Crime and

Gang Section, CRIMINAL RICO: 18 U.S.C. §§ 1961-1968, A Manual for

Federal Prosecutors at 28 (6th rev. ed. May 2016) (“RICO Manual”)

(concluding that “Congress intended the state offenses referenced in Section

1961(1)(A) to identify ‘generically’ the kind of conduct proscribed by RICO”);

id. (stating that “Section 1961(1) was intended to only identify ‘generically’

the kind of conduct proscribed by RICO for definitional purposes”). Indeed,

both the Senate and House Reports regarding RICO explained that “[t]he

state offenses are included by generic designation.” S. Rep. No. 91-617, at 158

(1969) (emphasis added); H.R. Rep. No. 1549, 91st Cong. 2d Sess., at 56

(1970).

Nor is a violation of § 1962(c) a divisible offense that can qualify as a

“crime of violence.” Again, as the Government itself has determined,“[b]y

definition, RICO is not a crime of violence: it is not ‘an offense that has as an

element the use, attempted use, or threatened use of physical force against

the person or property of another.’” RICO Manual at 463 (quoting 18

U.S.C. § 16(a)). The Second Circuit errs in holding otherwise.

Legal Background: RICO, Crimes of Violence, and the

“Categorical Approach”

1. This case involves the intersection of two exceptionally important

and frequently invoked federal laws: RICO, 18 U.S.C. §§ 1961-1968, and 18

U.S.C. § 924(c). RICO prohibits, inter alia, conducting or participating in an

“enterprise” through a “pattern” of “racketeering activity.” 18

U.S.C. § 1962(c). As relevant here, “pattern” means “at least two acts of

racketeering activity.” Id. § 1961(5). “Racketeering activity” means any act

“indictable” under a long list of specifically enumerated federal statutes (such

as 18 U.S.C. § 201, relating to bribery, 18 U.S.C. § 1341, relating to mail

fraud, and many others), see 18 U.S.C. § 1961(1)(B), and “any act or threat

involving murder, kidnapping, gambling, arson, robbery, bribery, extortion,

dealing in obscene matter, or dealing in a controlled substance or listed

chemical … which is chargeable under State law and punishable by

imprisonment for more than one year,” id. § 1961(1)(A).

RICO proscribes three substantive violations, as well as conspiracy to

commit those offenses. 18 U.S.C. § 1962(a)-(d). To establish the substantive

violation relevant here, § 1962(c), the Government must prove: (a) the

existence of an enterprise; (b) that the enterprise affected interstate

commerce; (c) that the defendant was employed by or associated with the

enterprise and participated, either directly or indirectly, in the conduct of the

affairs of the enterprise; and (d) that the defendant participated through a

pattern of racketeering activity, i.e., through the commission of at least two

racketeering acts listed in 18 U.S.C. § 1961(1). See, e.g., Boyle v. United

States, 556 U.S. 938, 943-44 (2009); Salinas v. United States, 522 U.S. 52,

62-63 (1997); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).

2. The other federal statute involved here, 18 U.S.C. § 924(c)(1),

makes it a crime, as relevant, to use, carry, or possess a firearm in relation to

any “crime of violence” for which the person “may be prosecuted in a court of

the United States.”

Section 924(c)(3) sets forth two definitions of a “crime of violence.” The

only one that remains valid, § 924(c)(3)(A) (known as “the force clause” or

“the elements clause”), defines a “crime of violence” as any felony that “has as

an element the use, attempted use, or threatened use of physical force

against the person or property of another.” See United States v. Davis, 139

S. Ct. 2319, 2336 (2019) (holding unconstitutional the alternative definition

of “crime of violence,” contained in § 924(c)(3)(B)).

3. To determine if an offense qualifies as a “crime of violence” for

purposes of § 924(c) (and similarly worded statutes), courts do not consider

the facts. Instead, courts apply the “categorical approach” or, in a “narrow

range of cases,” the “modified categorical approach.” Descamps v. United

States, 570 U.S. 254, 260-61 (2013); see also United States v. Taylor, 142

d. Ct. 2015, 2020 (2022) (applying the categorical approach to decide whether

attempted Hobbs Act robbery qualified as a “crime of violence”); Davis, 139

S. Ct. at 2336 (rejecting a “case-specific approach” that would examine a

defendant’s actual conduct to decide whether an offense qualifies as a “crime

of violence”).

The categorical approach applies to “indivisible” statutes, those that set

out “a single, indivisible set of elements” that define a unitary crime.

Descamps, 570 U.S. at 258. It asks whether the elements of the offense

“necessarily” require “the use, attempted use, or threatened use of physical

force.” Borden v. United States, 141 S. Ct. 1817, 1822 (2021). Courts may not

consider how the crime is typically committed or “how any particular

defendant may commit the crime.” Taylor, 142 S. Ct. at 2020. “The only

relevant question is whether the federal felony at issue always requires the

government to prove—beyond a reasonable doubt, as an element of its case—

the use, attempted use, or threatened use of force.” Id.

In a “narrow range of cases,” when a conviction is for violating a socalled “divisible statute,” courts may employ a variant of this categorical

method—known as the “modified categorical approach.” Descamps, 570 U.S.

at 261. A divisible statute lists “potential offense elements in the alternative,”

and thus creates “multiple, alternative versions of the crime.” Id. at 257, 262.

Because the statute sets forth multiple crimes, it is not possible to determine

by reference to the statute alone if the defendant was convicted of a “crime of

violence.” See id. Accordingly, the modified categorical approach allows courts

to look to certain documents like the indictment, jury instructions, and

verdict sheet (so-called “Shepard documents,” see Shepard v. United States,

544 U.S. 13 (2005)) for the sole purpose of determining which of the statute’s

alternative elements “formed the basis of the defendant’s … conviction.”

Descamps, 570 U.S. at 262. From there, a court applies the usual categorical

approach to that offense to determine whether it is a “crime of violence.” Id.

In Mathis v. United States, 579 U.S. 500, 517 (2016), this Court

clarified that to determine whether an “alternatively phrased statute” is

indivisible (thus requiring use of the categorical approach) or divisible

(allowing use of the modified categorical approach), courts must decide

whether the alternatives in the statute are “means” or “elements.” Statutory

alternatives are “means,” and do not create a divisible statute, if they are

merely “alternative methods of committing one offense.” Id. Statutory

alternatives are “elements,” and the statute is divisible, if the jury must

unanimously find them beyond a reasonable doubt in every case to convict.

Id. at 506.

Petitioners’ Convictions and Appeals

In 2006, petitioners were convicted at trial of several offenses,

including violations of 18 U.S.C. §§ 1962(c) and 924(c). See Colotti, 71

F.4th at 106; United States v. Ivezaj, 568 F.3d 88, 91 (2d Cir. 2009). Their

RICO offense, § 1962(c), was the sole “crime of violence” underlying the

§ 924(c) counts. Colotti, 71 F.4th at 106. This RICO offense, in turn, was

predicated, as relevant here, on “act[s] or threat[s] involving … extortion …

which is chargeable under State law,” § 1961(1)(A), to wit, second-degree

grand larceny by extortion, N.Y. Penal Law §§ 155.05 and 155.40, and

conspiracy or attempt to commit second-degree grand larceny by extortion.

Colotti, 71 F.4th at 106.

Petitioners filed direct appeals of their convictions, which were

affirmed by the Second Circuit in 2009. See Ivezaj, 568 F.3d at 90. Among

other arguments, petitioners contended that their RICO offense did not

qualify as a “crime of violence” for purposes of § 924(c). Id. at 95-96. The

Circuit rejected this argument (id.), and this Court denied certiorari, 559 U.S.

998 (2010).

In 2011, petitioners moved under 28 U.S.C. § 2255 to vacate their

convictions based, inter alia, on the ineffective assistance of counsel. See

Colotti, 71 F.4th at 106. These petitions were denied. Id.

Following this Court’s decisions in Johnson v. United States, 576 U.S.

591 (2015), and Davis, 139 S. Ct. at 2336, petitioners again moved under 28

U.S.C. § 2255 to vacate their § 924(c) convictions, asserting that their RICO

offense did not categorically qualify as a “crime of violence.” See Colotti, 71

F.4th at 106. They sought and received permission to file successive § 2255

petitions. Id.

Petitioners argued that their RICO offense, § 1962(c), is not a “crime of

violence” for purposes of § 924(c) because it does not have an element

requiring the use, attempted use, or threatened use of physical force against

the person or property of another. Colotti, 71 F.4th at 108-11. Petitioners

specifically argued that RICO is a single, indivisible offense and that the

modified categorical approach could not apply because RICO’s various

potential racketeering predicates are all different means of committing a

single RICO violation—not alternative elements of different or divisible RICO

crimes. Id. As part of this claim, petitioners maintained that, though RICO

allows certain acts “chargeable under State law,” such as bribery and

extortion, to serve as racketeering acts, RICO does not thereby incorporate

the specific elements of these state crimes as defined by a particular state’s

penal code. Rather, RICO’s references to state crimes such as “extortion” are

simply to the generic meaning of those crimes. Thus, applying the categorical

approach, § 1962(c) does not categorically qualify as a “crime of violence”

because extortion, defined generically, does not have an element involving

the use, attempted use, or threatened use of “physical force.”

The district court and Second Circuit rejected these arguments. The

Second Circuit held that petitioners’ RICO offense is a “crime of violence.”

Colotti, 71 F.4th at 119. Citing the Circuit’s prior decisions in Laurent, 33

F.4th 63, and Martinez, 991 F.3d 347, the court ruled that RICO is divisible,

and is therefore subject to the modified categorical approach, and

incorporates the specific elements of state criminal statutes—in this case, the

New York larceny-by-extortion statute invoked by the Government. See

Colotti, 71 F.4th at 111.

Based on this ruling, the Circuit examined New York’s definition of

second-degree grand larceny by extortion, N.Y. Penal Law § 155.40(2), the

only “racketeering act” under RICO that the Government claimed still

qualifies as a “crime of violence” after Davis. Colotti, 71 F.4th at 111. The

Circuit determined that this state offense is itself divisible and that, in

petitioners’ case, it categorically qualifies as a crime of violence. Id.

To summarize: the Circuit held that (1) RICO’s “racketeering activity”

element is divisible, thereby rendering § 1962(c) subject to the modified

categorical approach; (2) RICO, when based on state crimes, incorporates the

specific elements of state offenses as defined by the penal law of the state in

which the racketeering acts occurred; and (3) petitioners’ New York extortion

offense qualified categorically as a crime of violence, and therefore allowed

petitioners’ RICO offense to be treated as a crime of violence. On these bases,

the Circuit declined to reverse petitioners’ § 924(c) convictions, for which they

must each serve an extra seven years in prison.

Petitioners timely moved for rehearing or rehearing en banc, but the

Circuit denied rehearing without comment. Pet. App. 67a-69a.

REASONS FOR GRANTING THE PETITION

The Court should grant this petition for four reasons. First, the circuits

are divided over (1) the elements of a RICO offense premised on acts or

threats involving certain conduct “chargeable under State law,” § 1961(1)(A);

and (2) whether RICO’s “racketeering activity” element is divisible, such that

a violation of § 1962(c) can sometimes qualify as a “crime of violence.” Second,

these are important and recurring questions of federal law that warrant

prompt resolution. Third, this case is an excellent vehicle to resolve these

circuit conflicts because the issues are preserved, cleanly presented, and

outcome-determinative. And finally, the Second Circuit’s holdings on these

questions are wrong and inconsistent with the relevant statutes and this

Court’s precedents.

The circuits are divided over RICO’s elements and the statute’s

divisibility.

A. The circuits are split over whether RICO incorporates the

elements of state penal codes or only references generic

offense categories.

1. The circuits are divided over the elements of a RICO violation

predicated on state offenses. Five circuits hold that § 1961(1)(A) does not

incorporate the elements of state crimes as defined by a particular state’s

penal law. Instead, according to these circuits, that section simply references

generic categories of criminal conduct that can give rise to a federal

racketeering violation.

This is the law in the Third, Fifth, Sixth, Eighth, and Eleventh

Circuits. These circuits hold that § 1961(1)(A) was intended to identify the

general categories of state criminal conduct that constitute “racketeering

activity” (“any act or threat involving murder, kidnapping, gambling, arson,

robbery, bribery, extortion, dealing in obscene matter, or dealing in a

controlled substance”), not to incorporate into RICO the specific elements of

the various (and often inconsistent) state penal codes.2 See Williams, 109

2 This used to be the law in the Second Circuit as well. In United States v.

Bagaric, the Circuit held that § 1961(1)(A) incorporated only “generic

definitions of murder, arson, and extortion,” and not “the elements of the

F.3d at 895 (collecting Third Circuit authorities); Welch, 656 F.2d at

1058-59); Johnson, 64 F.4th at 721-22; Kehoe, 310 F.3d at 588; Watchmaker,

761 F.2d at 1469.

As the Eighth Circuit puts it, “‘RICO’s allusion to state crimes was not

intended to incorporate elements of state crimes’ into the RICO statute. …

Rather, RICO’s reference to state crimes identifies ‘the type of generic

conduct which will serve as a RICO predicate and satisfy RICO’s pattern

requirement.’” Kehoe, 310 F.3d at 588 (citation omitted).

The Eleventh Circuit similarly explains that RICO’s references to state

law merely “identify generally the kind of activity made illegal by the federal

statute. … [T]he state law reference is not employed to provide the specific

terms of the charge. The state law citation merely serves to indicate ‘the type

of serious conduct contemplated by the RICO statute as actionable as an act

of racketeering.’” Watchmaker, 761 F.2d at 1469 (citations omitted); see also

United States v. Salinas, 564 F.2d 688, 690 (5th Cir. 1977) (“Courts

penal codes of the various states where acts of racketeering occurred.” 706

F.2d 42, 62-63 (2d Cir. 1983) (adding that RICO’s “references to state law

serve a definitional purpose, to identify generally the kind of activity made

illegal by the federal statute”), abrogated on other grounds by Nat’l Org. for

Women, Inc. v. Scheidler, 510 U.S. 249 (1994); accord United States v.

Coonan, 938 F.2d 1553, 1564 (2d Cir. 1991). But more recent circuit decisions

have abandoned Bagaric and squarely hold that § 1961(1)(A) incorporates

specific state-law elements. See text, p. 24, infra.

construing the racketeering statutes have found that the references to state

law serve a definitional purpose, to identify generally the kind of activity

made illegal by the federal statute.”).

As a result, in these circuits, to establish a RICO violation predicated

on state crimes, the Government need only establish the generic offense

conduct akin to that included in § 1961(1)(A); the Government is not required

to prove the specific elements of the state crime as defined by the state in

which the alleged racketeering activity occurred. See, e.g., Johnson, 64 F.4th

at 721-22 (affirming a RICO conviction where the jury found that the

defendant agreed to a “racketeering act of robbery,” but the jury was not

charged on, and did not find, the specific elements of the state robbery

offense); United States v. Tolliver, 61 F.3d 1189, 1208-09 (5th Cir. 1995)

(upholding a RICO conviction where the court instructed the jury on the

“generic definition of murder” and not the elements of murder under

Louisiana law because “federal courts typically require only a ‘generic’

definition of the underlying state crime in a RICO charge”), vacated on other

grounds by Moore v. United States, 519 U.S. 802 (1996); Welch, 656 F.2d at

1058-59 (upholding a RICO conviction predicated on state bribery allegations

because, regardless whether defendant’s conduct violated a particular state

statute, it was “the type of serious conduct contemplated by the RICO statute

as actionable as an act of racketeering”).

2. The Second Circuit disagrees with these circuits. In multiple recent

precedential decisions, including here, the Second Circuit has held that

§ 1961(1)(A) incorporates the state penal-code elements of alleged state

offenses, meaning that “RICO violations require the indictment to charge, the

government to prove, and the jury to find beyond a reasonable doubt, the

precise elements of particular federal or state offenses.” Martinez, 991 F.3d at

358 (emphasis added); see also Laurent, 33 F.4th at 89 (“RICO requires that

the specific crimes constituting the ‘pattern’ of the racketeering enterprise be

identified in the charging instrument and proven beyond a reasonable

doubt.”); United States v. Pastore, 83 F.4th 113, 119 (2d Cir. 2023) (holding,

based on Martinez and Laurent, that, because the Violent Crimes in Aid of

Racketeering statute (VICAR), 18 U.S.C. § 1959, “complements RICO,” it too

incorporates the specific elements of state crimes); United States v. Davis, 74

F.4th 50, 53-54 (2d Cir. 2023) (same).

3. This split means that the elements of a RICO violation vary across

the country—and, in the Second Circuit, even from case to case. In at least

five circuits, the Government can establish the “racketeering activity”

element of RICO simply by proving any “act or threat involving” a generic

criminal offense “chargeable under State law” (e.g., murder, robbery,

extortion). § 1961(A)(1). But in the Second Circuit, the Government must

plead and prove the “precise elements” of state crimes as defined by a

particular state. Martinez, 991 F.3d at 358. The elements of a federal RICO

violation in the Second Circuit are thus different than in at least five other

circuits, and even vary from trial to trial (depending on the penal law of the

state in which the racketeering activity took place). Thus, the meaning of

RICO—an important federal statute that applies in civil as well as criminal

cases—now depends on the happenstance of geography and the vagaries of 50

different state penal codes.

The circuits are also divided over RICO’s divisibility.

1. The circuits also disagree over whether RICO is a “divisible” statute

for purposes of the categorical approach. In several precedential opinions,

including here, the Second Circuit has held that RICO is divisible down to the

individual racketeering acts committed by a particular defendant: if any one

of those acts qualifies as a “crime of violence”—even if it is only a state crime,

not a crime that “may be prosecuted in a court of the United States,” as

§ 924(c)(1)(A) requires—then the overall RICO offense itself qualifies as a

“crime of violence.” See Colotti, 71 F.4th at 109; Laurent, 33 F.4th at 88-89;

Ivezaj, 568 F.3d at 96. That means that a substantive federal RICO violation

sometimes qualifies as a “crime of violence,” and sometimes does not,

depending on the specific facts of each case.

The Third Circuit agrees. According to the Third Circuit, “RICO, in

particular Section 1962(c), is [a] divisible statute.” United States v. Williams,

898 F.3d 323, 333 (3d Cir. 2018) (applying the “modified categorical

approach” to rule that the defendant’s particular RICO conviction qualified as

a “controlled substance offense” because the “predicate acts” forming the

basis for the RICO conviction satisfied the definition of a “controlled

substance offense”).

2. These precedents conflict with decisions by the Fourth and Fifth

Circuits. In Simmons, 11 F.4th at 260, the Fourth Circuit held that RICO’s

definition of “racketeering activity,” § 1961(1), is not divisible, for it merely

“lists the means—the ‘alternative methods’”—of violating RICO, not

“elements” of separate and divisible RICO crimes. Accordingly, the Fourth

Circuit held that this Court’s precedent “requires that [the] categorical

analysis consider the entire class of qualifying racketeering acts, not just the

specific ones that [the defendants] committed in this case.” Id.

The Fourth Circuit’s view aligns with that of the Fifth Circuit. In

McClaren, 13 F.4th at 413, the Fifth Circuit held that the standard

categorical approach applies to RICO because the statute is not “severable”—

i.e., not divisible—and does not invariably require proof of violence: “the

specific finding by the jury that Defendants committed a crime of violence in

this case is irrelevant [because] the statute itself does not require a crime of

violence.”

3. Thus, the circuits are evenly divided over whether RICO is a

divisible statute subject to the modified categorical approach and, therefore,

whether courts may consider the defendant’s particular racketeering acts to

determine if his (or her) RICO violation qualifies as a “crime of violence.”

II.

This Court should decide the elements of a RICO offense and

whether RICO is a “divisible” statute.

1. It is exceptionally important for this Court to resolve the circuit

split over the elements that must be proven when a RICO violation is

premised on acts “chargeable under State law.” § 1961(1)(A). RICO litigation

is common in both civil and criminal cases, especially within the Second

Circuit. See Eur. Cmty. v. RJR Nabisco, Inc., 783 F.3d 123, 128 (2d Cir. 2015)

(Jacobs, J., dissenting from the denial of rehearing in banc) (noting “[t]he

frequency of RICO litigation in this Circuit”). Moreover, this Court has

repeatedly intervened to resolve splits over RICO’s elements, thus

recognizing both the statute’s importance and the need for uniform

interpretation. E.g., Boyle, 556 U.S. at 940-41 (addressing the meaning of a

RICO “association-in-fact enterprise”); Bridge v. Phoenix Bond & Indem. Co.,

553 U.S. 639, 641-42 (2008) (addressing “the substantial question” whether a

civil RICO claim premised on mail fraud requires reliance on the defendant’s

misrepresentations); Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453

(2006) (addressing RICO’s “proximate cause” requirement); Salinas, 522 U.S.

at 54 (addressing the elements of RICO conspiracy); Scheidler, 510 U.S. at

252 (addressing whether RICO requires proof that either the racketeering

enterprise or the predicate racketeering acts were motivated by an economic

purpose); H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 232 (1989) (addressing

“what conduct meets RICO’s pattern [of racketeering activity] requirement”);

Sedima, 473 U.S. at 481 (addressing whether a RICO plaintiff must allege a

“racketeering injury” and plead that the defendants had been convicted of the

claimed predicate acts); United States v. Turkette, 452 U.S. 576, 578 (1981)

(addressing the scope of a RICO “enterprise”). Despite these efforts, however,

the elements of RICO remain opaque when, as here, state crimes constitute

the alleged “racketeering activity.” And while most of this Court’s RICO cases

arose in the civil context, RICO also carries substantial criminal penalties,

making the question presented here especially significant.

2. No less important is the related question whether RICO’s

“racketeering activity” element is divisible, and thus whether a violation of

§ 1962(c) can qualify as a “crime of violence.” The Government regularly

charges substantive RICO violations as predicates for § 924(c) counts. And a

§ 924(c) conviction triggers a mandatory consecutive term of imprisonment

ranging from at least five years up to life. E.g., United States v. Shabazz, 564

F.3d 280, 289 (3d Cir. 2009). Accordingly, this Court’s resolution of the

divisibility question could affect the liberty of many criminal defendants, as

well as the Government’s charging decisions in future cases.

3. Further, the continued uncertainty regarding the divisibility of

RICO is unacceptable. It subjects similarly situated defendants to different

treatment based solely upon the jurisdiction in which they find themselves.

Consider a defendant who used a gun during a substantive RICO offense that

involved violent racketeering acts under state law. This defendant would not

be guilty of violating § 924(c) in the Fourth or Fifth Circuits because those

courts treat the “racketeering activity” element of RICO as indivisible. But

that same defendant would be guilty of violating § 924(c) in the Second and

Third Circuits, resulting in a potential life sentence.

III.

This case presents an excellent vehicle to resolve

these conflicts.

This case offers an ideal opportunity to resolve these circuit splits.

First, the questions are preserved and the facts undisputed. Petitioners have

consistently asserted the arguments raised here: that their RICO offense does

not qualify as a “crime of violence” for purposes of § 924(c) because RICO is

not divisible down to individual racketeering acts and, even if it were, courts

would consider only the elements of the generic racketeering offense and not

the idiosyncratic elements of a particular state statute. Petitioners’ original,

direct appeal asserted that their RICO offense was not a “crime of violence.”

Petitioners then renewed their arguments in their habeas motions to the

district and circuit courts, and in their petitions for rehearing. The Circuit

ruled against petitioners on the merits. And petitioners’ claims involve purely

legal, statutory construction questions, where there are no relevant facts in

dispute and no procedural complexities that could muddy this Court’s review.

Second, each of these issues is outcome-determinative. If this Court

grants review and decides that RICO’s “racketeering activity” element is not

divisible, petitioners’ RICO offense—the sole predicate for the § 924(c)

counts—would not qualify as a “crime of violence,” and petitioners would be

entitled to reversal of their § 924(c) convictions and consecutive sentences.

Similarly, if the Court were to grant review and hold that § 1961(1)(A) refers

to state offenses defined generically and does not incorporate the precise

elements of state crimes as defined in a particular state’s penal code,

petitioners would likewise be entitled to relief. Though the Second Circuit

ruled that petitioners’ violation of a specific New York extortion statute

categorically qualifies as a “crime of violence,” generic “extortion” does not. As

this Court has held, generic extortion means “obtaining something of value

from another with his consent induced by the wrongful use of force, fear, or

threats.” Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 410 (2003).

Thus, generic extortion does not require the actual, attempted, or threatened

“use of physical force.” It can be committed, for example, by a non-violent

threat to cause purely economic harm or damage someone’s reputation by

disclosing information. See, e.g., United States v. Jackson, 180 F.3d 55, 68-72

(2d Cir.), reh’g granted, 196 F.3d 383 (2d Cir. 1999). Thus, like Hobbs Act

extortion, it is not categorically a crime of violence. See, e.g., Capozzi v.

United States, 531 F. Supp. 3d 399, 404 (D. Mass. 2021) (collecting cases so

holding).

IV.

The Second Circuit’s holdings are wrong.

Given the importance of the questions presented and the circuit

conflict, certiorari is warranted regardless which side of the splits is correct.

But the fact that the Second Circuit’s positions are erroneous makes review

especially appropriate.

1. Preliminarily, a violation of § 1962(c) is not a “crime of violence”

under the standard categorical approach. Under that approach, “[t]he only

relevant question is whether [§ 1962(c)] always requires the government to

prove—beyond a reasonable doubt, as an element of its case—the use,

attempted use, or threatened use of force.” Taylor, 142 S. Ct. at 2020. Section

1962(c) fails that test, as the Government itself has recognized. See RICO

Manual at 463. The statute’s elements—an enterprise affecting interstate or

foreign commerce, the defendant’s association with that enterprise, and a

pattern of racketeering activity—do not invariably require proof of an

element involving force. RICO defines “racketeering activity” broadly to

include a wide variety of state and federal crimes that need not involve any

violence or force whatsoever, including, inter alia, transportation of stolen

property, bribery, embezzlement, gambling offenses, offenses relating to

fraudulent conduct, and unlawful procurement of immigration documents.

See § 1961(1). The categorical approach functions as an “on-off switch,”

Descamps, 570 U.S. at 268: An offense either is, or is not, a “crime of

violence.” See Taylor, 142 S. Ct. at 2020 (holding that the “only relevant

question” is what the Government “always” must prove). Yet under the

Second Circuit’s erroneous approach, the same federal crime—a violation of

§ 1962(c)—sometimes will, and sometimes will not, qualify, depending on

defendants’ factual conduct and the availability of court records establishing

which predicate acts were found proven. That result runs headlong into

decades of this Court’s categorical-approach jurisprudence. E.g., Taylor v.

United States, 495 U.S. 575, 601 (1990) (rejecting the notion “that a

particular crime might sometimes count [as a ‘violent felony’] and sometimes

not depending on the facts of the case”).

2. Nor is RICO’s “pattern of racketeering activity” element divisible.

While RICO defines “racketeering activity” to include broad categories of

criminal conduct “chargeable under State law,” the listed conduct merely

describes different ways or “means” of engaging in “racketeering activity,” not

elements of separate RICO offenses. Simmons, 11 F.4th at 259-60. Thus, the

statute cannot be held divisible under this Court’s cases. E.g., Mathis, 579

U.S. at 517.

Moreover, nothing in RICO’s text, structure, or history indicates that

Congress intended to create an infinite number of distinct and divisible

§ 1962(c) offenses with chameleon-like elements that change from case to

case depending on which state’s penal code is invoked. On the contrary, RICO

was Congress’s effort to create a single, indivisible federal crime—a violation

of the federal racketeering laws—that can be committed in myriad ways. See,

e.g., United States v. Luong, 393 F.3d 913, 917 (9th Cir. 2004) (holding that

“RICO criminalizes structural conduct that is separate and apart from the

predicate offenses”); United States v. Wallen, 953 F.2d 3, 5-6 (1st Cir. 1991)

(“Although it may encompass a number of underlying acts, a RICO conviction

is for a single offense.”); United States v. Yarbrough, 852 F.2d 1522, 1531

(9th Cir. 1988) (holding that RICO sets forth “one federal crime—violation of

the federal racketeering laws”). Thus, because it creates only one federal

crime with a fixed set of elements, § 1962(c) is not divisible. See Mathis, 579

U.S. at 506 (holding that statutory alternatives are “means,” and do not

create a divisible statute, if they are merely “alternative methods of

committing one offense”).

4. The Second Circuit’s approach also leads to unfair and arbitrary

results inconsistent with the categorical approach. Unless the jury returned a

special verdict in a RICO case, it will often be impossible to know which

predicate acts of racketeering activity were found “proven.” And the use of

special verdicts in criminal cases, including RICO cases, is not required. See,

e.g., United States v. Applins, 637 F.3d 59, 82 (2d Cir. 2011); United States v.

Ogando, 968 F.2d 146, 149 (2d Cir. 1992).

Applying the modified categorical approach to RICO will thus lead to

arbitrary consequences and unwarranted disparities. Suppose, for example,

that in 2000 Smith and Jones were convicted in separate trials of using of a

gun during a substantive RICO offense alleging six racketeering acts: four

acts of state-law bribery and two acts of state-law murder. In Smith’s case, no

special verdict was used; the jury only said “guilty.” But in Jones’s case, the

jury returned a special verdict finding all six racketeering acts “proven.”

Under the Second Circuit’s approach, Jones would be guilty of using a gun

during a “crime of violence,” but not Smith—even though their criminal

conduct may have been identical. Such a disparate outcome—based solely on

the happenstance of whether the trial court used a special verdict, at a time

when no one could have anticipated that the choice would have any future

significance—is exactly what the categorical approach is supposed to prevent.

See Descamps, 570 U.S. at 267 (reiterating that the categorical approach

“averts ‘the practical difficulties and potential unfairness of a factual

approach’”) (quoting Taylor, 495 U.S. at 601); Moncrieffe v. Holder, 569 U.S.

184, 200 (2013) (rejecting a “circumstance-specific approach” because it

“would require the sort of post hoc investigation into the facts of predicate

offenses that we have long deemed undesirable”).

***

In sum, this Court’s intervention is urgently needed. “RICO is one of

the most confusing crimes ever devised by the United States Congress.”

Casey v. Dep’t of State, 980 F.2d 1472, 1477 (D.C. Cir. 1992) (citing H.J. Inc.,

492 U.S. at 252-56 (Scalia, J., concurring)). After more than 50 years of

litigation, the statute’s elements continue to confuse and divide the lower

courts. Similarly, determining whether (or when) a RICO violation can

qualify as a § 924(c) “crime of violence” presents “a complex and vexing

question,” as the Second Circuit itself has acknowledged. Martinez, 991 F.3d

at 359. But the need for authoritative answers is evident. Only this Court can

provide them.

CONCLUSION

A writ of certiorari should be granted.

Respectfully submitted,

~~~

Edward S. Zas

Counsel of Record

Sarah Baumgartel

Federal Defenders of New York, Inc.

52 Duane Street, 10th Floor

New York, New York 10007

Tel.: (212) 417-8742

Edward_Zas@fd.org

Counsel to Nardino Colotti, Alex

Rudaj, and Nikola Dedaj

Michael S. Schachter

Ravi Chanderraj

Willkie Farr & Gallagher LLP

787 7th Avenue

New York, NY 10019

Tel.: (212) 728-8102

rchanderraj@willkie.com

Counsel to Prenka Iuezaj

Anthony DiPietro

Law Offices of Anthony DiPietro, P.C.

15 Chester Avenue

White Plains, NY 10601

Tel. (914) 948-3242

dipietrolaw@yahoo.com

Counsel to Angelo DiPietro

K~:~

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