Petition — Ohio v. Young

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

SUPREME COURT OF THE UNITED

Supreme Court, U.S.

FILED

IN THE

OCTOBER TERM, 1979

STATE OF OHIO,

Petitioner,

Vs.

CAROLYN YOUNG,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

BRETT GOODSON

Attorney at Law

20 West 9th Street

SIMON L. LEIS, JR.

Prosecuting Attorney

LEONARD KIRSCHNER

Assistant Prosecuting Attorney

THOMAS P. LONGANO

Assistant Prosecuting Attorney

F. DAVID ALBANESE

Assistant Prosecuting Attorney

420 Hamilton County Court House

Court & Main Streets

Cincinnati, Ohio 45202

(513) 632-8553

Attorneys for Petitioner

Cincinnati, Ohio 45202

(513) 621-2999

Attorney for Respondent

a A SG AE TEE, aT TT a Ee TESS,

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

QUESTIONS PRESENTED FOR REVIEW

Ohio Revised Code, Section 2923.04, sets forth ascer-

tainable standards of guilt and is not void for vagueness

in contradiction to the Due Process Clause of the Four-

teenth Amendment to the United States Constitution.

FOOTNOTE: In accordance with Supreme Court Rule

21.1(b) we submit that the names of all parties involve

in this case have been set forth in the caption of this case.

However, for the purposes of clarification we submit that

the only case currently being petitioned for, is the case of

State of Ohio v. Carolyn Young. At the time the Ohio

Supreme Court heard the Young case, currently before this

Court, they also heard the case of State of Ohio v. George

Forbes, which was from Cuyahoga County. ‘The attorneys

representing the State of Ohio in that case were John T.

Corrigan, Cuyahoga County Prosecuting Attorney and

George J. Sadd, Cuyahoga County Assistant Prosecuting

Attorney, Justice Center, 1200 Ontario Street, Cleveland,

Ohio 44113. Representing the defendant George Forbes

in that case was the law firm ot Berkman, Gordon, Kancel-

baum, Levy and Murray, through Mr. Bernard A. Berkman

and Mr. J. Michael Murray whose address is 2121 The

Illuminating Building, 55 Public Square, Cleveland, Ohio

44113.

PREVIOUS PAGE WAS BLANK

INDEX

Page

QUESTIONS PRESENTED FOR REVIEW ...... I

EE ee a Se 1

I LOM rose sin, cece lG 5 Yi esyeh a mie dn 49 Aes ]

CONSTITUTIONAL AND STATUTORY

pemewneers INVOLVED 2.0... ane. 2

SSASEMENT OF THE CASE ................. 5

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT ........ 7

Ne ae A ic 0 V's ko 4 dig alee 17

I ogc Sled wt ds oo x 4 la-30a

Ohio Supreme Court opinion, June 18, 1980

State of Ohio v. Carolyn Young, 62 Ohio St.

2d 370

I 3 5509s, ain 'y Sirs s'2. alse ha Pt a 3la-39a

Court of Appeals, First Appellate District opin-

ion, Case number C 780309, decided 4/4/79

a oy oe ee vk pee aa 40a-43a

18 U.S.C. 1961

Racketeer Influenced and Corrupt Organizations

SE aan ae er er te _.. .44a-45a

18 U.S.C. 1962

PREVIOUS PAGE WAS BLANK

CITATIONS

Cases:

Bass v. United States, 324 F. 2d 168 (1963) .......

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ....

Cole v. Richardson, 405 U.S. 676 (1972) .........

Colton v. Kentucky, 407 U.S. 104 (1972) .......

Communications Association v. Douds, 339 U.S, 382

te | Sa eee mnie ADe Aran e

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

on DAR. Zee ...... SB inn k ea ae a

United States v. Barrow, 363 F. 2d 62, cert. denied

Ear ae Oe CEO Fascia foots

United States v. Bash, 258 F. Supp. 807, affirmed,

379 F. 2d 483, cert. denied 389 U.S. 930 (1966) ..

United States v. Campanale, 518 F. 2d 352, cert. den.

96 S. Ct. 777, 423 U.S. 1050, rehearing denied

wed. Ce, 3008, SES Ue. FOE

United States v. Castellano, 416 F. Supp. 125 (D.C.

OE MPs oa oad coma ORD mata ant bree mesiees

United States v. Elliott, 571 F. 2d 880 (1978), re-

hearing denied 575 F. 2d 300...............

United States v. Field, 432 F. Supp. 55, affirmed 578

F. 2d 1371, certiorari dismissed, 90 S. Ct. 43...

United States v. Gerhart, 275 F. Supp. 443 (1963) |.

United States v. Harriss, 347 U.S. 612 (1954) at

RE operate Mey bn Meek oe ee eee

VI.

Page

United States v. Nat. Dairy Corp., 372 U.S. 29 at

SRST EIS Ren r or SOS Beene ol tl NE 17

United States v. Parness, 503 F. 2d 430, certiorari

denied 95 S. Ct. 775, 419 U.S. 1105 ............ 13

United States v. Petrillo, 332 U.S. 1 (1946) at page7. 8

United States v. Teemer, 213 F. Supp. 952 (1963) .. 12

United States v. Villano, 529 F. 2d 1046, cert. den.

ge ee Me) A ne a a ee 1]

Statutes and Rules:

United States Constitution, Fourteenth Amendment . .1, 2

Be NE BUN ok Soak ack pwede s ata ce cen aa on 10

See I BON ig i es eos eB a wpe aed 12, 14

Re i Me hs haa w aia Wie Ws ad ote eat 12

Ee, Sa a 2

Ohio Revised Code 109.88 ..................... 4

Ohio Revised Code 2905.11 ................... 3, 16

Ohio Revised Code 2905.12 ............... sae

oe ae 8 | 3

(mo Baeveee Code ZOGr ae... ict eesi eee. 3

Ohio Revised Code 2907.25 .............. ta: a ae

Ohio Revised Code 2918.01 ................... 3, 16

Ohio Revised Code 2914.01 .................... 4

Ohio: Revised Code 2915.0] .................... 16

Ohio

Miscellaneous:

Webster’s New Twentieth Century Unabridged Dic-

Revised

Code

Vil.

2921.02

2923.04

2923.11

tionary 2016 (2d Ed. 1975)

(A)

(A) (1)

(A) (2)

(A) (3)

(A) (4)

(A) (5)

(A) (6)

(A) (7)

(C)

10, 15-16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

STATE OF OHIO,

Petitioner,

vs.

CAROLYN YOUNG,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

OPINIONS BELOW

The June 18, 1980 opinion of the Ohio Supreme Court

is set forth in Appendix “A” of this brief. The opinion

of the Court of Appeals is set forth in Appendix ““B”.

JURISDICTION

On June 18, 1980, the Ohio Supreme Court in a 4-3

split decision rendered their decision which held that Ohio

Revised Code, Section 2923.04 was unconstitutional as

being void for vagueness and overbroad and contradiction

to the Due Process Clause of the Fourteenth Amendment

to the United States Constitution.

Jurisdiction is pursuant to 28 U.S.C. 1257,

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the United

States Constitution:

‘All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

2923.04 Engaging in organized crime

“(A) No person, with purpose to establish or main-

tain a criminal syndicate or to facilitate any of its

activities, shall do any of the following:

(1) Organize or participate in organizing a

criminal syndicate or any of its activities;

(2) Provide material aid to a criminal syndi-

cate or any of its activities, whether such aid is

in the form of money or other property, or credit;

(3) Manage, supervise, or direct any of the

activities of a criminal syndicate, at any level of

responsibility;

(4) Furnish legal, accounting, or other man-

agerial services to a criminal syndicate;

(5) Commit, or conspire or attempt to com-

mit, or act as an accomplice in the commission of,

any offense of a type in which a criminal syndi-

cate engages on a continuing basis;

(6) Commit, or conspire or attempt to com-

mit, or act as an accomplice in the commission of,

any offense of violence;

(7) Commit, or conspire or attempt to commit,

or act as an accomplice in the commission of

bribery in violation of section 2921.02 of the

Revised Code.

Whoever violates this section is guilty of en-

gaging in organized crime, a felony of the first degree.

As used in this section, ‘criminal syndicate’

means five or more persons collaborating to promote or

engage in any of the following on a continuing basis;

(1) Extortion or coercion in violation of section

2905.11 or 2905.12 of the Revised Code;

(2) Compelling or promoting prostitution, or

procuring, in violation of section 2907.21, 2907.-

22, or 2907.23 of the Revised Code;

(3) Any theft offense as defined in section

2913.01 of the Revised Code;

(4) Any gambling offense as defined in section

2914.01 of the Revised Code;

(5) Illegal Trafficking in drugs of abuse, in in-

toxicating or spirituous liquor, or in deadly wea-

pons or dangerous ordnance as defined in section

2923.11 of the Revised Code;

(6) Lending at usurious interest, and enforcing

repayment by illegal means;

(7) Any offense, for the purpose of gain.

(D) A criminal syndicate retains its character as

such even though one or more of its members does

not know the identity of one or more other members,

and even though its membership changes from time

to time.”

Ohio Revised Code Section 109.83 defines organized

criminal activity as:

“Organized criminal activity means any combination

or conspiracy to engage in criminal activity as a signifi-

cant source of income or livelihood, or to violate or

aid, abet, facilitate, conceal, or dispose of the proceeds

of the violation of criminal laws relating to prostitu-

tion, gambling, counterfeiting, obscenity, extortion,

loan sharking, drug abuse or illegal drug distribution,

or corruption of law enforcement officers or other

public officers, officials, or employees.”

STATEMENT OF THE CASE

The defendant along with 23 co-defendants was indicted

on October 27, 1977 for the crime of engaging in organized

crime in violation of Ohio Revised Code 2923.04. After

various pre-trial motions the defendant entered her plea

of No Contest to the charges in said indictment on April

6, 1978 and was found guilty on said plea. Defendant was

sentenced to a term of four (4) to twenty-five (25) years

and her sentence was suspended and she was placed on

five (5) years probation. A timely Notice of Appeal was

filed to the Court of Appeals of the First Appellate Dis-

trict. On April 4, 1979 the Court of Appeals reversed the

judgment of conviction declaring Ohio Revised Code Sec-

tion 2923.04 unconstitutional. Thereafter, the Court of

Appeals certified their judgment to the Ohio Supreme

Court on the basis that three other appellate jurisdictions

had declared the statute to be constitutional A short time

after the Court of Appeals of the First Appellate District

rendered their decision in this case (State vs. Young) the

Court of Appeals of the Eighth Appellate District also

found the statute to be unconstitutional. The Supreme

Court of Ohio joined that case (State vs. Forbes) with the

case for which certiorari is sought for the purposes of the

argument. The Ohio Supreme Court on June 18, 1980

in a 4-3 split decision determined the Ohio Revised Code

Section 2923.04 was unconstitutional. This petition for a

Writ of Certiorari is from that decision.

The background facts upon which the indictment was

based reflected a large organization of individuals (23 of

whom were indicted on this charge) who jointly through

their mutual efforts, stole, passed bad checks, etc. in order

to purchase narcotics. In more simple terms the divisions

of the organization were broken down into five major di-

visions; to-wit: a theft group, a burglary group, a forgery

group, a receiving and passing bad checks, etc. group and

a group supplying the narcotics.

The theft group would go around to various parking

lots at shopping centers and break into automobiles and

remove cash, blank checks and credit cards from the auto-

mobiles. They would carefully put all other matters back

in place in the car; including billfolds and purses. They

would then relock the car so that when the owner came

back to his car nothing would look out of place and the

owner would not suspect anything wrong until such time

as he needed the credit card or the money or the blank

check.

The burglary group would operate along the same gen-

eral lines as the theft group and take only cash, credit cards

or blank checks.

The forgery group would receive the checks and make

them out for others to pass.

The receiving group would receive the filled in forged

checks and the credit cards and then go out and pass them

using; amongst other things, the stolen credit cards as

identification. The receiving group would then turn the

proceeds into the overseeing group would would purchase

narcotics for everybody in the various specialty rings.

The whole operation was systematized by a group of

individuals at the top who supervised the various opera-

tions between the groups and who furnished the various

groups and their participants the appropriate shares of

the narcotics purchased. The entire operation was similar

to a major corporation with integrated criminal divisions

all operating under the supervision of a group at the top.

According to the Bill of Particulars which has been filed in

this case; during the period of time involved in this indict-

ment (7 months) the criminal operations netted over

$100,000.00.

The defendant Carolyn Young was a part of the receiv-

ing group that passed bad checks and stolen credit cards.

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

The majority of one in the Ohio Supreme Court in

their 4-3 split decision erred in declaring Ohio Revised

Code Section 2923.04 as being unconstitutional in contra-

diction to the due process clause of the Fourteenth Amend-

ment. The Ohio Supreme Court said that this statute

was too indefinite and uncertain. We strongly disagree

with that interpretation.

In order to properly interpret this statute we believe

that certain pronouncements of this Court must be ob-

served.

First and foremost we believe that the ‘pronouncement

of this Court in United States v. Harriss, 347 US. 612

(1954) at page 617 clearly sets forth the requirements of

“definiteness” of a criminal statute. This Court stated in

the Harriss case (supra) at page 617:

‘The constitutional requirement of definiteness is vio-

lated by a criminal statute that fails to give a person

of ordinary intelligence fair notice that his contem-

plated conduct is forbidden by statute. The underly-

ing principle is that no man shall be held criminally

responsible for conduct which he could not reasonably

understand to be proscribed.”

We look to the Ohio statute to see if the statute gives

a person of ordinary intelligence fair notice that his con-

templated action is forbidden by statute.

Before we go into the specifics of the Ohio statute, we

believe that we must check out certain of this Court’s

pronouncements in determining whether or not a statute

is unconstitutional as being vague and overbroad.

As this Court went on to say in the Harriss case (supra)

at page 618:

““. . . If the general class of offenses at which the stat-

ute is directed is plainly within its terms the statute

will not be struck down as vague even though marginal

cases could be put where doubts might arise . . . and

if this general class of offenses can be made constitu-

tionally definite by a reasonable construction of the

statute, this Court is under a duty to give the statute

that construction.”

As the Court stated in the case of United States v. Pet-

rillo, 332 U.S. 1 (1946) at page 7:

“We think that the language Congress used provides

an adequate warning as to what conduct falls under

its bans, and marks boundaries sufficiently distinct for

judges and juries fairly to administer the law in ac-

cordance with the will of Congress. ‘That there may

be marginal cases in which it is difficult to determine

the side of the line on which a particular fact situation

falls is not sufficient reason to hold the language too

ambiguous to define a criminal offense. . . . The Con-

stitution has erected procedurz! safeguards to pro-

tect against conviction for crime except for violation

of laws which have clearly defined conduct there-

after to be punished; BUT THE CONSTITUTION

DOFS NOT REQUIRE IMPOSSIBLE STAND-

ARDS.” (Capitalization ours for emphasis.)

We then look to the relevant features of the Ohio statute.

Ohio requires knowledge and intent. The mere aiding

or assisting someone without knowing either what you are

doing or what you are facilitating is not covered under the

Ohio statute.

Ohio Revised Code, Section 2923.04 (A) provides in

part:

“No person with PURPOSE TO ESTABLISH OR

MAINTAIN A CRIMINAL SYNDICATE or to FA-

CILITATE ANY OF ITS ACTIVITIES, shall do any

of the following . . .” (Capitalization ours for em-

phasis.)

There must be the purposeful intent to do the act in

question.

We then look to the prohibited activity which must

be purposely done.

Section 2923.04 (A) (1) provides that you cannot in-

tentionally organize or participate in organizing a criminal

syndicate (criminal syndicate is clearly defined in O.R.C.

2923.04 (C)). It is extremely doubtful that anyone could

say this section is vague or overbroad.

Section 2923.04 (A) (2) provides that you cannot wil-

fully provide material aid to a criminal syndicate.

Section 2923.04 (A) (3) provides you cannot willfully

and intentionally manage, supervise or direct any of the

activities of the criminal syndicate.

Section 2923.04 (A) (4) prohibits the willful furnishing

of legal, accounting or other managerial services to the

criminal syndicate with the intent to facilitate its activities.

Section 2923.04 (A) (5) prohibits the wiliful commis-

sion of or conspiracy or attempt to do any act or acts which

a criminal syndicate engages in on a continuing basis.

Section 2923.04 (A) (6) prohibits the purposeful and

willful commission of conspiracy to commit an act of

violence.

Section 2923.04 (A) (7) prohibits the purposeful com-

mission or attempted commission of bribery in violation

of a specific statute.

It is extremely difficult to comprehend how the above

can be determined to be vague or overbroad. This is

especially so since the words criminal syndicate have been

defined in O.R.C. 2923.04 (C).

We believe that several Federal statutes which have

been declared by this Court and other Federal Courts to

be constitutional would clearly reflect the constitutionality

of the Ohio Section under attack.

First and foremost it is to be noted that the Ohio leg-

islature based this code section on the then proposed Fed-

eral Criminal Code.

18 U.S.C. 1952 is the Federal Statute on racketeering.

That statute prohibited interstate travel with intent to

promote, manage, establish, carry on or facilitate certain

kinds of illegal activity. This statute is aimed primarily at

organized crime. This law reads as follows:

‘““(a) Whoever travels in the interstate or foreign com-

merce or uses any facility in interstate or foreign

commerce, including the mail, with intent to —

(1) distribute the proceeds of any unlawful ac-

tivity; or

(2) commit any crime of violence to further

any unlawful activity? or

(3) otherwise promote, manage, establish, carry

on, or facilitate the promotion, manage-

ment, establishment, or carrying on, of any

unlawful activity, and thereafter performs

or attempts to perform any of the acts speci-

fied in subparagraphs (1), (2) and (3),

shall be fined not more than $10,000 or im-

prisoned not more than five years, or both.

(b) As used in this section ‘unlawful activity’ means

(1) any business enterprise involving gambling,

liquor on which the Federal excise tax has not

been paid, narcotics, or prostitution offenses in

violation of the laws of the State in which they

are committed or of the United States, or (2)

extortion, bribery, or arson in violation of the

laws of the State in which committed or of the

United States.

volving liquor or narcotics shall be conducted

under the supervision of the Secretary of the

Treasury.”

The constitutionality of this section was upheld and

found not to be vague in the case of United States v.

Villano, 529 F. 2d 1046, cert. den. 96 S. Ct. 3180, 426 U.S.

953.

The Court in Villano, supra, stated:

“While the phrase including the word promote was

held impermissibly vague in the First Amendment

setting, we are satisfied that the statutory provisions in

question here convey sufficiently definite warning as

to the proscribed conduct when measured by common

understanding and practice.” (Page 1053). ;

The issue of vagueness in determining the constitution-

ality question has been rule favorably for the State in a

number of cases. More specifically, the case of Bass v.

United States, 324 F. 2d 168 (1963), which says that the

Court held that the racketeering statute previously men-

tioned is not constitutionally questionable for vagueness

but embraces commonly clear words and prescribes clear

standards (see United States v. Gerhart, 275 F. Supp. 443

(1963) ; United States v. Barrow, 363 F. 2d 62, cert. denied

385 U.S. 101 (1963) ; United States v. Bash, 258 F. Supp.

807, affirmed, 379 F. 2d 483, cert. denied 389 U.S. 930

(1966) ; United States v. Teemer, 214 F. Supp. 952 (1963) .

As it can easily be seen the Federal statute on interstate

Racketeering is not as detailed as Ohio’s Organized Crime

Statute yet it was upheld as constitutional.

We have affixed as our Appendix C the defintions of

racketeering as defined in 18 U.S.C. 1961. Our Appendix

D sets forth the prohibited activities.

Section 1962 was held not to be unconstitutionally vague

and ambiguous. The concept of affecting interstate or

foreign commerce is so well imbedded in the law as not

to mislead anyone who engages in this activity. United

States v. Campanale, 518 F. 2d 352, cert. den. 96 S. Ct.

777, 423 U.S. 1050, rehearing denied 96 S. Ct. 1422, 424

U.S. 950.

It has been held that our federal legislature is entitled to

make more than one crime within a specified time frame

and in a course of a particular type of activity or enterprise

a pattern of racketeering prohibited by law. This is so

even though racketeering is an independent criminal of-

fense which punishes more severely than just twice the

penalty for each separate offense. United States v. Field,

432 F. Supp. 55, affirmed 578 F. 2d 1371, certiorari dis-

missed 90 S. Ct. 43.

Congress is not prohibited by any constitutional principle

which would serve to stop the Congress from making the

commission of two crimes within a certain time frame and

of a certain pattern of activity a crime regardless of whether

or not a sequence of two similar acts amounts to a pattern

as that term is usually understood. United States v. Field,

supra.

Section 1962 likewise does not offend the fundamental

demand of due process that guilt remain individual and

personal where a defendant is a member of a criminal en-

terprise where he objectively manifests an intention to

actively engage in the criminal enterprise through the com-

mission of two or more defined crimes. United States v.

Elliott, 571 F. 2d 880 (1978), rehearing denied, 575 F. 2d

300; United States v. Parness, 503 F. 2d 430, certiorari de-

nied 95 S. Ct. 775, 419 U.S. 1105. This section is not

unconstitutionally vague as construed to extend to ille-

gitimate as well as legitimate enterprises. United States

v. Castellano, 416 F. Supp. 125 (D.C.N.Y. 1975).

It is submitted that Ohio’s organized crime statute,

like the Federal Statutes cited, is not vague. It is a basic

principle of due process that an enactment is not void if its

prohibitions are clearly defined. Beginning with the basic

premise that man is free to decide between lawful and

unlawful activity, a law must give a person of ordinary in-

telligence a reasonable opportunity to know what activity

or conduct is prohibited so that he can decide how he will

act. Fair warning is all that need be given. Grayned v. City

of Rockford, 408 U.S. 104 (1972), 92 S. Ct. 2294.

In regard to whether or not a law is overbroad it can-

not prohibit constitutionally protected conduct. Grayned,

supra. Ohio’s organized crime statute is not overbroad be-

cause it prohibits criminal activity or conduct only and not

constitutionally protected activity. As the statute specifically

states activities such as bribery, extortion, promoting prosti-

tution, theft, illegal trafficking in drugs, lending at usuri-

ous interest rates are clearly prohibited.

The federal statute, Section 1961, prohibits similar con-

duct. It prohibits gambling, bribery, extortion, dealing in

narcotics, etc. which are just as clearly defined as Ohio's

Statute.

The only activities which the organized crime statute

prohibits are those performed with the purpose of establish-

ing or maintaining a criminal syndicate or facilitating its

activities. Any claim that Ohio’s organized crime statute

is vague or overbroad is not well founded because the sweep

of the statute is narrowed by the scienter element. The

statute specifically states that “no person, with purpose to

establish or maintain a criminal syndicate or to facilitate

any of its activities; ... .”

We submit that this requirement of scienter in the or-

ganized crime statute is in and of itself sufficient basis to

uphold a statute under attack for vagueness or overbreath.

The Supreme Court of the United States has upheld on

numerous occasions statutes which require scienter. Cole v.

Richardson, 405 U.S. 676 (1972); Colton v. Kentucky,

407 U.S. 104 (1972).

It is further submitted that a statute should not be held

to be invalid for overbreath if a limiting construction could

be placed on it by the state court. Broadrick v. Oklahoma,

413 U.S. 601 (1973).

We feel that the Ohio Statute is not “vague” as the

Ohio Supreme Court Majority alleged in their opinion. We

feel that the first thing that must be done is to see what

the word ‘“‘vague” means. The word “vague’’ is defined

in Webster’s Twentieth Century, unabridged dictionary,

second edition as:

“Not clearly, precisely, or definitely expressed or stated

in... not sharp, certain or precise in thought or

expression . . . not precisely determined or known

We then look to the statute to see whether this statute

is sO vague.

The statute begins with the words ‘‘no person’’. We find

nothing vague or uncertain as to this phrase. In simple

language it means anyone.

The statute then goes on to say “with purpose to estab-

lish or maintain a criminal syndicate.”

We feel there is nothing uncertain or indefinite on these

phrases. When a person does something purposely he does

it intentionally. We then look to where the purpose is di-

rected: “‘to establish or maintain a criminal syndicate”.

Therefore, the purpose is to establish or maintain some-

thing. What is that something? The something is a crimi-

nal syndicate. The Court of Appeals might be correct in

not knowing what ‘‘a criminal syndicate was except for

the fact that the legislature has defined a criminal syndi-

cate’’.

Ohio Revised Code 2923.04 (C) says:

“As used in this section, ‘criminal syndicate’ means

five or more persons collaborating to promote or en-

gage in any of the following on a continuing basis.”

“1. Extortion or coercion in violation of section 2905.-

11 or 2905.12 of the Revised Code.

2. Compelling or promoting prostitution... .

3. Any theft offense as defined in 2913.01 of the

Revised Code.

4. Any gambling offense as defined in Section 2915.-

01 of the Revised Code.

5. Illegal trafficking in drugs of abuse. . .

6. Lending at usurious interest, and enforcing re-

payment by illegal means;

7. Any offense for the purpose of gain.”

The statute is clear and it is limited. Each offense is

clearly defined.

The statute says there must be five or more persons in the

syndicate. The statute says that this code section is limited

in application to situations falling under the 7 specific items.

We find it inconceivable to find out where the vague-

ness that the Majority Opinion of The Ohio Supreme

Court speaks of exists in this statute.

This is not a situation of five or more persons engaged in

a lawful enterprise. The statute is predicated on the five

or more persons committing a crime.

As the dissenting opinion of three justices of the Ohio

Supreme Court reflected, the majority opinion was conjur-

ing up ridiculous imaginary situations.

As this Court said in the case of Communications Associ-

ation v. Douds, 339 U.S. 382 (1950) at page 412:

“There is little doubt that imagination can conjure

up hypothetical cases in which the meaning of these

terms will be in nice question. The applicable standard,

however, is not one of wholly consistent academic

definition of abstract terms. It is rather, ‘THE PRAC-

TICAL CRITERION OF FAIR NOTICE TO

THOSE TO WHOM THE STATUTE IS DIRECT-

ED.” (Capitalization ours for emphasis.)

A “strong presumptive validity that attaches to an Act

. . . has led this Court to hold many times that statutes

are not automatically invalidated as vague simply because

difficulty is found in determining whether certain marginal

offenses fall within their language”. (United States v. Nat.

Dairy Corp., 372 U.S. 29 at p. 32).

CONCLUSION

The Ohio Supreme Court by a 4-3 split majority de-

termined that Ohio Revised Code 2903.04 was uncon-

stitutional in contradiction to the United States Consti-

tution.

We believe that the Ohio statute is neither vague nor

overbroad.

We believe that the dissenting opinion in the Ohio Su-

preme Court followed the mandates and pronouncements

of this Court when they reflected that the Ohio Statute was

constitutional.

We further submit that over 100 other defendants in

Ohio are awaiting the pronouncements by this Court on

the Federal constitutional issues as improperly interpreted

by the majority opinion of the Ohio Supreme Court.

We therefore request that you grant certiorari in this

case.

Respectfully submitted,

SIMON L. LEIS, JR.

Prosecuting Attorney

LEONARD KIRSCHNER

Assistant Prosecuting Attorney

THOMAS P. LONGANO

Assistant Prosecuting Attorney

F. DAVID ALBANESE

Assistant Prosecuting Attorney

420 Hamilton County Court House

Court & Main Streets

Cincinnati, Ohio 45202

Attorneys for Petitioner

APPENDIX A

THE STATE OF OHIO, APPELLANT, V.

YouNG, APPELLEE.

THE STATE OF OunIo, APPELLANT, V.

FORBES ET AL., APPELLEES.

[Cite as State v. Young (1980), 62 Ohio St. 2d 370.]

Criminal law—Engaging in organized crime—R. C. 2923.04

—Constitutionality—Void for vagueness—Due process

—Fourteenth Amendment, U.S. Constitution.

R. C. 2923.04 fails to establish ascertainable standards of

guilt and is, therefore, void for vagueness under the

Due Process Clause of the Fourteenth Amendment to

the United States Constitution.

(Nos. 79-728 and 79-1124—Decided June 18, 1980.)

CerTiFieD by the Courts of Appeals for Hamilton and

Cuyahoga Counties.

Two cases have been consolidated herein. In the one

cause (case No. 79-728), defendant-appellee, Carolyn N.

Young, was indicted with 23 other individuals for violating

R. C. 2923.04, this state’s organized crime statute. Follow-

ing her indictment, appellee moved to dismiss the charge

on the basis that R. C. 2923.04 was unconstitutional. The

motion was denied by the Court of Common Pleas of Ham-

ilton County. Appellee then entered a plea of no contest

to the charge of engaging in organized crime. She was

found guilty. The Court of Appeals for Hamilton County

held R. C. 2923.04(A) (1), (2), (3) and (5) to be un-

constitutional and reversed the conviction and discharged

appellee.

In the second cause (case No. 79-1124) , defendant-appel-

lees, George L. Forbes, Ceasar Moss, James H. Boyd, Carl-

ton Rush, Curtis J. Watkins, Carl Bayer, David E. Cohen,

Raymond Bona, Eugene L. Hazen, Thomas Layer, Ernie

Mills, and Virgil Shively, were indicted for engaging in

organized crime in violation of R. C. 2923.04 (A) (1), (2),

(3) and/or (5). Upon appellees’ motion, and pursuant

to a hearing, the Court of Common Pleas of Cuyahoga

County declared the statute unconstitutional and dismissed

the indictments against appellees. Upon appeal, this de-

termination was affirmed by the Court of Appeals for Cuy-

ahoga County.

The judgments of these two appellate courts were found

to be in conflict with the unreported decisions of the Court

of Appeals for Summit County in State v. Byars (December

21, 1977, No. 8543) and the Court of Appeals for Fair-

field County in State v. Houlihan (November 1, 1978, No.

11 CA 78), and the records of these causes were certified

to this court for review and final determination.

Subsequent to certification of both cases, the state of

Ohio (hereinafter appellant) moved this court for an

order consolidating the two cases, and, on September 12,

1979, the motion was allowed.

Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Leon-

ard Kirschner, Mr. Thomas P. Longano and Mr. F. David

Albanese, for appellant in case No. 79-728.

Mr. John T. Corrigan, prosecuting attorney, and Mr.

George J. Sadd, for appellant in case No. 79-1124.

Mr. Brett, Goodson, for appellee in case No. 79-728.

Messrs. Berkman, Gordon, Kancelbaum, Levy & Murray,

Mr. Bernard A. Berkman and Mr. J. Michael Murray, for

appellees in case No. 79-1124.

. 8a

PauL W. Brown, J. In recent years the growing prob-

lem of organized crime has received heightened attention

by this state, and indeed by our entire nation. Many

legislative bodies, including the United States Congress,

have sought to combat these criminal activities through

the enactment of legislation designed to reach deep within

criminal organizations. To this effect, our General As-

sembly enacted R. C. 2923.04. We so preface this opinion

only to make clear that our examination of this provision

relates only to its constitutional posture and is not intended

as an indictment of the General Assembly’s well-intended

motives.

Appellees’ primary contention in the instant cause is that

the statute is unconstitutionally vague under the Four-

teenth Amendment to the United States Constitution. It

is well established that criminal statutes are void for vague-

ness under the Due Process Clause of the Fourteenth

Amendment if they fail to contain ‘ascertainable standards

of guilt.” Winters v. New York (1948), 333 U.S. 507,

515. See, also, Columbus v. Thompson (1971), 25 Ohio

St. 2d 26, 30.

We noted last term that “the proper standard for de-

termining if a statute is vague is found in Connally v.

General Construction Co. (1926), 269 U.S. 385, and

Grayned v. Rockford (1972), 408 U.S. 104.” State v.

Phipps (1979), 58 Ohio St. 2d 271, 273. In Connally v.

General Construction Co., supra, the United States Su-

preme Court, at page 391, stated:

“That the terms of a penal statute creating a new

offense must be sufficiently explicit to inform those who are

subject to it what conduct on their part will render them

liable to its penalties, is a well-recognized requirement,

consonant alike with ordinary notions of fair play and the

settled rules of law. And a statute which either forbids or

requires the doing of an act in terms so vague that men of

common intelligence must necessarily guess at its meaning

and differ as to its application, violates the first essential of

due process of law. * * *’ (Citations omitted.)

The standard was further examined in Grayned v. Rock-

ford, supra, at pages 108-109, wherein it was explained that:

“It is a basic principle of due process that an enactment

is void for vagueness if its prohibitions are not clearly

defined. Vague laws offend several important values.

First, because we assume that man is free to steer between

lawful and unlawful conduct, we insist that laws give the

person of ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not providing fair

warning. Second, if arbitrary and discriminatory enforce-

ment is to be prevented, laws must provide explicit stan-

dards for those who apply them. A vague law impermis-

sibly delegates basic policy matters to policemen, judges

and juries for resolution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary and discriminatory

application.”

The statute in question must be reviewed against this

constitutional background.’ R. C. 2923.04 provides that:

1 The state in this cause relies heavily upon Section 1952, Title 18,

U.S. Code, citing that federal interstate racketeering statute because it

has withstood constitutional attacks on grounds similar to those claimed

here. See, e.g., Bass v. United States (C. A. 8, 1963), 324 F. 2d 168,

173. We find an analogy to that law to be totally unpersuasive because

that federal law does not contain identical provisions to those contained

in R. C. 2923.04, nor was our statute patterned after that provision in

the United States Code. The two laws are, in fact, almost completely

different, except for the type of activity they attempt to prohibit.

(A) No person, with purpose to establish or maintain

a criminal syndicate or to facilitate any of its activities,

shall do any of the following:

(1) Organize or participate in organizing a criminal

syndicate or any of its activities;

(2) Provide material aid to a criminal syndicate or any

of its activities, whether such aid is in the form of money

or other property, or credit;

(3) Manage, supervise, or direct any of the activities

of a criminal syndicate, at any level of responsibility;

(4) Furnish legal, accounting, or other managerial ser-

vices to a criminal syndicate;

‘““(5) Commit, or conspire or atempt to commit, or act

as an accomplice in the commission of, any offense of a type

in which a criminal syndicate engages on a continuing basis;

(6) Commit, or conspire or attempt to commit, or act

as an accomplice in the commission of, any offense of vio-

lence;

(7) Commit, or conspire or atempt to commit, or act

as an accomplice in the commission of bribery in violation

of section 2921.02 of the Revised Code.

‘(B) Whoever violates this section is guilty of engaging

in organized crime, a felony of the first degree.

‘““(C) As used in this section, ‘criminal syndicate’ means

five or more persons collaborating to promote or engage in

any of the following on a continuing basis:

‘‘(1) Extortion or coercion in violation of section 2905.11

or 2905.12 of the Revised Code;

(2) Compelling or promoting prostitution, or procur-

ing in violation of section 2907.21, 2907.22, or 2907.23 of

the Revised Code;

(3) Any theft offense as defined in section 2913.01 of

the Revised Code;

(4) Any gambling offense as defined in section 2915.01

of the Revised Code;

(5) Illegal trafficking in drugs of abuse, in intoxicating

or spirituous liquor, or in deadly weapons or dangerous

ordnance as defined in section 2923.11 of the Revised Code;

(6) Lending at usurious interest, and enforcing repay-

ment by illegal means;

(7) Any offense, for the purpose of gain.

‘“(D) A criminal syndicate retains its character as such

even though one or more of its members does not know

the identity of one or more other members, and even

though its membership changes from time to time.”

The Complexity of R. C. 2923.04 is readily apparent,

and it is the: efore necessary to analyze individually the

various components of this statute to determine its con-

stitutionality as a whole. For reasons stated hereinafter,

it is our considered opinion that such an examination re-

sults in the inescapable conclusion that the statute is de-

ficient in at least five respects and, thus, cannot pass con-

stitutional muster.

While this court will attempt to construe the language

of a statute in order to sustain its validity, ‘it must be recog-

nized that a court, in interpreting a legislative enactment,

may not simply rewrite it * * *.” Seeley v. Expert, Inc.

(1971), 26 Ohio St. 2d 61, 71. See, also, Crane v. Cedar

Rapids & Iowa City Ry. Co. (1969) , 395 U.S. 164, 167.

We also note that “where there is ambiguity in a crim-

inal statute, doubts are resolved in favor of the defendant.”

United States v. Bass (1971), 404 U.S. 336, 348. The

standards for vagueness also require more precision in the

criminal context, than in other situations, such as in a

regulatory context. Salem v. Liquor Control Comm.

(1973) , 34 Ohio St. 2d 244, 246.

With these principles of statutory construction in mind

we turn to R. C. 2923.04(A). First, in viewing division

(A) of R. C. 2923.04, we recognize that a person must

act with a “purpose to establish or maintain a criminal

syndicate or to facilitate any of its activities,” to be brought

within the statute’s prohibitions. The General Assembly

clearly provided a scienter requirement of “‘purpose”’ as

defined by R. C. 2901.22 (A). The statute, however, does

not demand that this purpose must be manifested in the

“facilitation” of a syndicate’s illegal activities.

A three-judge federal panel, composed of District Judges

Duncan and Kinneary together with Circuit Judge Peck,

held subsection (A) (4) of R. C. 2923.04, dealing with

legal, accounting, and managerial services, unconstitu-

tional,? aptly pointing out that:

“The scienter element in R. C. 2923.04 does little to

2 This federal case is not binding upon this court, and we note the

decision rendered in that case only as supporting authority. That case,

brought under Section 2281, Title 28, U.S. Code, which has subse-

quently been repealed, resulted in a declaratory judgment deposing R. C.

2923.04(A)(4) on federal constitutional grounds. This finding was

based upon First Amendment associational rights, the Sixth Amendment

right to counsel, as well as due process vagueness concerns. R. C.

2923.04(A)(4) is not directly before this court in the instant cause,

but because we are holding the scienter provisions of R. C. 2923.04(A)

as well as the definitional provision contained in R. C. 2923.04(C)

invalid, the entire statute must fail as being unconstitutionally vague.

limit the reach of the statute. The intent required is a

‘purpose to * * * facilitate any of [the criminal syndicate’s]

activities. As written, then, the scienter element is not

limited to activities undertaken to facilitate the illegal

activities of a criminal syndicate. This is important; a

criminal syndicate may engage in many activities which

are not in and of themselves illegal. Some such activities,

such as reporting income for federal tax purposes, are in

fact required by law.” Amusement Devices Assn. v. Ohio

(1977) , 443 F. Supp. 1040, 1051.

We are asked by appellant to make the assumption that

the General Assembly intended to limit this scienter re-

quirement to illegal activities. ‘This reading, however,

would be contrary to the clear language of the statute and

would require reading the term “illegal” not only into

R. C. 2923.04 (A) but also into subsections (A) (1), (A)

(2) and (A) (3). It is argued that is the only statutory

construction possible, but at least one Court of Appeals

that held the statute to be constitutionally valid, read the

statute literally, and construed it to reach a person who

seeks to aid a criminal syndicate in any of its activities, legal

or illegal. State v. Powell et al., Court of Appeals for

Summit County (November 28, 1979, C. A. Nos. 8878

etc.) .

To read R. C. 2923.04 (A) as enacted, without insertion

of the word “illegal” into the scienter requirement presents

obvious legal difficulties. ‘There exists a possibility that

lawful activity may be punished under the statute as writ-

ten. For example, a person selling eggs to a restaurant,

known to be operated by a criminal syndicate, is aiding the

activities of that organization and is thus within the scope

of R. C. 2923.04. Criminal responsibility has never been

assigned, however, to the vendor who supplies goods

readily available on the open market. See Lafave & Scott,

Criminal Law. Section 64. Punishing such innocent con-

duct cuts against the grain of our entire system of criminal

justice. Papachristou v. Jacksonville (1972) , 405 U.S. 156.

The General Assembly, in all probability, did not intend

to reach such conduct, but may have sought to prohibit

other activities that assist the legal operations of a criminal

syndicate. One can envision primary functionaries within

a criminal syndicate who restrict their activities to the

syndicate’s lawful operations, yet channel the profits from

such activities into unlawful activities. These individuals

may incur criminal responsibility for their actions and may

be punished by a properly drafted statute.

R. C, 2923.04(A) as drafted, however, fails to specify

with reasonable clarity what kinds of activity it prohibits

and, therefore, is unconstitutionally vague. It is funda-

mentaly principle that “[n]o one may be required at peril

of life, liberty or property to speculate as to the meaning

of penal statutes. All are entitled to be informed as to

what the State commands or forbids.” Lanzetta v. New

Jersey (1939), 306 U.S. 451, at page 453 (footnote

omitted) .

There is a second independent problem with the

scienter requirement in R. C, 2923.04(A). This problem

results because there is no requirement that a person know

that his actions are aiding a criminal syndica.e. An in-

dividual involved in the legal activities of a group, unaware

of and with no connection to the unlawful side of the or-

ganization, is brought within the statute’s prohibitions. For

example, a real estate broker who handles the purchase of

an apartment complex and an individual who then man-

ages that complex, both have the purpose to engage in their

respective conduct, but they have no intention of aiding a

criminal operation. Yet, if a “criminal syndicate” is the

eo |

10a

purchaser, these individuals are within the purview of R. C.

2923.04, because they have assisted the activities of that

organization. The same conduct may be either legal or

illegal depending upon whether it aided a criminal syndi-

cate.®

The vague language of the statute, which subjects an in-

dividual to criminal sanctions for activities, the legality of

which cannot be determined solely by the conduct itself

but must be determined by factors which a person may be

unaware of at the time of the conduct, violates due process.

R. C. 2923.04 lacks the ascertainable standards of guilt that

“give a person of ordinary intelligence fair notice that his

contemplated conduct is forbidden * * *.”’ United States

v. Harriss (1954), 347 U.S. 612 at page 617; Palmer v.

Euclid (1971), 402 U.S. 544.

The importance of clarity in the scienter requirements

cannot be overemphasized in light of the sweeping reach

of the statute and the stringent sanctions provided by R. C.

2923.04 (B) .4 The statute is far-reaching due to the defini-

3 As the United States Supreme Court has recognized in another con-

text, “[t]he very absurdity of these possibilities brings into focus the

extraordinary ambiguity of the statutory language.” Cramp v. Bd. of

Public Instruction of Orange Co. (1961), 368 U.S. 278, 286.

4 We recognize the importance of a clear scienter element in upholding

a legislative enactment. See Colautti v. Franklin (1979), 439 U.S. 379,

395. We however, note that the inclusion of a scienter requirement

does not render a statute automatically constitutional. The federal court,

which held R. C. 2923.04(A)(4) to be unconstitutional, in reviewing

United States Supreme Court precedent stated:

“# © ®© [Whhile that Court has held that the presence of a scienter

element may save a statute which otherwise would be unconstitutionally

vague * * ® [citations omitted], the Supreme Court has never to our

knowledge held that the imposition of a scienter element upon a statute

necessarily renders the statute’s prohibitions sufficiently precise to with-

stand a vagueness challenge.” Amusement Devises Assn. v. Ohio, supra,

at page 1051.

lla

tion of “criminal syndicate” contained in R.C. 2923.04 (C) .

A criminal syndicate is defined as ‘five or more persons

collaborating to promote or engage in”: (1) extortion or

coercion; (2) prostitution; (3) theft; (4) gambling; (5)

illegal traffic in drugs, liquor, or firearms; (6) usury; or

(7) any offense for the purpose of gain.

The first six parts of R. C. 2923.04 (C) incorporate by

reference many specific offenses. ‘These offenses range in

classification from a minor misdemeanor (public gaming,

R. C. 2915.04[D]) toa first degree felony (illegal trafficking

in drugs, R. C. 2925.03 (D) [6] and [7]. The final part of R.

C. 2923.04 (C) includes any offense for the purpose of gain.

It is not clear that this subsection is intended to be limited

only to financial gain. Even assuming, arguendo, that it is

limited to monetary gain, it is still broad enough to encom-

pass minor disdemeanors such as violating the state’s home

solicitation requirements. R. C. 1345.21 et seq, and R. C.

1345.99. This provision leaves one unable to determine

precisely how many separate offenses are included under

R. C. 2923.04 (C) , because a great percentage of our Crim-

inal Code proscribes offenses committed for financial gain.

Additionally, it is also difficult in some instances to de-

termine whether the perpetrator who violates a statute does

so for the purpose of gain in any sense of that word.

The lower courts have properly pointed out that the

criteria chosen by the General Assembly to mark the

boundaries of the statute are extremely broad and bring

many activities within the statute that would not norme|!ly

be considered to be conduct engaged in by organized crime.

Five persons who participate in a betting pool each time

they atend a football game would fall within this definition

of a criminal syndicate because their conduct constitutes a

violation R. C. 2915.04, governing public gaming. These

12a

persons, however, without clear notice from R. C. 2923.04,

have no way of knowing that they are committing a felony

of the first degree and are thus subject to a posible jail sen-

tence of 25 years and a $10,000 fine. The nature of their

conduct itself does not indicate to them the penalties that

are possible. R. C. 2923.04 makes no distinctions in its

sentencing provisions but requires the same sanctions re-

gardless of the nature and gravity of the underlying offense.

In viewing this situation it is clear that the statute’s require-

ments are simply not sufficient to limit its application to

established criminal operations.§

In addition, the General Assembly has delegated a great

deal of discretion to prosecutors who may choose to treat

5 Appellant calls our attention to R. C. 109.83(A), a statute not in

Ohio’s Criminal Code, but contained within a chapter which defines

the power of the state Attorney General’s office. R. C. 109.83(A) states

that:

“When directed by the governor or general assembly, the attorney

general may investigate any organized crime activity in this state. ‘Or-

ganized criminal activity’ means any combination or conspiracy to en-

gage in criminal activity as a significant source of income or livelihood,

or to violate, or aid, abet, facilitate, conceal, or dispose of the proceeds

of the violation of, criminal laws relating to prostitution, gambling,

counterfeiting, obscenity, extortion, loan sharking, drug abuse or illegal

drug distribution, or corruption of law enforcement officers or other

public officers, officials, or employees.”

The definition of “organized criminal activity” contained in this statu-

tory provision indicates that the General Assembly perceived the precepts

of such activity much more narrowly in this investigative context when

it enacted this statute several years prior to the passage of R. C. 2923.04.

This definition cannot be read into R. C. 2923.04 to limit its applica-

tion. The term “criminal syndicate” is used throughout R. C. 2923.04,

and its definition is in irreconcilable conflict with the one contained in

R. C. 109.83(A). The term “organized crime” appears only once within

the text of R. C. 2923.04, and in no way acts to define the conduct

proscribed by the statute. See R. C. 2923.04(B). The only purpose the

definition may serve in this context is to further confuse those individuals

who seek to determine if their conduct falls within statutory prohibitions

regarding organized crime.

13a

these individuals as if they are engaging in organized crime

or who may simply prosecute them for a minor misde-

meanor, which involves a maximum $100 fine.6 While

prosecutors have a certain amount of discretion inherent in

the charging of every defendant, we can think of no situa-

tion to compare with the discretion given here, with two

possibile offenses on opposite ends of the penological spec-

trum, chargeable from the same conduct.

We note these shortcomings of R. C. 2923.04 not to ques-

tion the wisdom of the legislation’s provisions, but to dem-

onstrate the great number of individuals and the diverse

factual situations that are brought within the statute. The

scienter element, and portions of the statute to be discussed

hereinafter, must be of sufficient clarity, that they put per-

sons of common intelligence on notice that their conduct

violates R. C. 2923.04. Their conduct, in and of itself, may

not seem to make them subject to penalties of this magni-.

tude. We are requiring significant precision in this con-

text, a situation where many activities have been elevated

to first degree felonies.

A third problem with R. C. 2923.04 (A) is the undefined

term “facilitate.” No guidance is given in this statute as

to the point at which incidental assistance to a criminal

syndicate is transformed into “‘facilitation,’”’ which will ren-

der one open to harsh criminal sanctions. It is also not

clear whether one must act affirmatively to be brought

within this term, or whether a person by failing to act may

be found to “facilitate” the activities of a criminal syndi-

cate. One trying to ascertain whether his conduct is unlaw-

ful under this provision must guess at the meaning of the

statute, contrary to the demands of due process of law.

6 See Comment, The Disparate Sentencing Provision of Ohio’s Or-

ganized Crime Statute, 46 Univ. of Cinn. |... Rev. 583.

l4a

The Committee Comment to R. C. Chapter 2923 states

that R. C. 2923.04 is based largely upon the proposed

Federal Criminal Code. In that code, criminal facilitation

requires that a defendant knowingly provide ‘‘substantial

assistance’’ to a person intending to commit felony.? A

similar definitional provision is necessary in R. C. 2923.04,

for as it stands the statute indicates that there may be a

conviction for “‘facilitation’’ on evidence that would not

suport a conviction for aiding and abetting. ‘The statute,

however, nowhere indicates the degree to which an indi-

vidual’s conduct must tie him to a particular criminal ven-

ture.

We also question attaching the same culpability and

punishment to one who merely facilitates (whatever that

term may mean), the activities of a criminal syndicate, as

to one who actually organizes it and actively participates

in its operation. The failure to distinguish between the

organization’s leaders and those who merely assist the syn-

dicate by providing goods and services or other innocuous

aid further illustrates the defective nature of the statute.

A fourth major difficulty with the statute is that the

definitional term “continuing basis,” contained in subsec-

tion (C) of R. C. 2923.04, is susceptible to more than

one meaning. R. C. 2923.04 defines a criminal syndicate

to encompass five or more persons who promote or engage

in enumerated activities on a continuing basis. This re-

quirement appears intended to limit the statute’s reach

to established criminal operations, but this provision ap-

parently applies with equal force to a group which kidnaps

an individual and detains him for several weeks or, indeed,

7 See, Noie, The Proposed Federal Penal Code, 47 N.Y.U. L. Rev.

320, 341.

l5a

for several hours or minutes. There is only one offense,

but it is committed on a continuing basis. In comparable

federal legislation similar terminology is clearly defined

to encompass a minimum number of offenses, and a max-

imum period of time over which these offenses must occur.

See Paragraph 5 of Section 1961, Title 18, U.S. Code.

Anyone viewing this statute is unable to ascertain whether

two offenses committed within ten years will bring about

criminal responsibility under the statute. Due to the fact

that there is no definition of what constitutes a ‘‘continu-

ing basis” this basic policy decision is impermissibly dele-

gated to prosecutors and judges for resolution on an ad

hoc basis. Grayned v. Rockford, supra.

The fifth and final area which is unconstitutionally vague

is subsection (A) (5) of R. C. 2923.04. This section im-

poses criminal liability on all persons who “[c]ommit, or

conspire or attempt to commit, or act as an accomplice in

the commission of, any offense of a type in which a criminal

syndicate engages on a continuing basis.” Aside from the

difficulty of determining what constitutes a continuing

basis, discussed supra, this subsection demonstrates failure

by the General Assembly to provide an ascertainable stan-

dard of guilt. The offense which the provision seeks to

prohibit is not defined. Further, the creation of boun-

daries of the conduct sought to be prohibited by this sub-

section has been delegated to those who engage in criminal

activities. It is the criminal syndicate that will decide

what offenses to engage in on a continuing basis. Their

decision will determine what conduct on the part of others

will in the future constitute a violation of R. C. 2923.04 (A)

(5). Just as a legislative body may not delegate basic

policy decisions to prosecutors and judges, such matters may

not be delegated to the very criminals to be reached under

a penal statute. This provision, with its circular wording

l6a

exemplifies the vagueness that renders this statute un-

constitutional.

The defects in the statute discussed supra are highlighted

when the statutory subsections are read together with their

definitional subsections. For example, the ordinary person

is expected to comprehend the following:

‘‘No person, with purpose to facilitate any of the activ-

ities [R. C. 2923.04 (A) ] of five or more persons, collaborat-

ing to engage in [R. C. 2923.04 (C) ] any offense for gain

[R. C. 2923.04 (C) (7) |, shall attempt to commit any offense

of a type in which a criminal syndicate engages on a con-

tinuing basis [R. C. 2923.04 (A) (5) ].”

The statute read in this manner, as it must be under

certain circumstances, gives no notice of what conduct is

proscribed. It indicates the General Assembly’s failure to

meaningfully define this offense.

We recognize that by holding R. C. 2923.04 unconstitu-

tional, we have struck down a statute that dealt with an

extremely significant problem in our society. We also

realize, however, that in the statute’s wake organized crime

may still be effectively prosecuted for the underlying of-

lenses contained in R. C. 2923.04, as well as for the crime

of conspiracy. The objective of the legislation cannot be

questioned, but its sweeping reach and its imprecise termi-

nology are incompatible with due process requirements.

These constitutional considerations may not be dismissed

merely because there is a laudatory legislative end sought

to be achieved.

Accordingly, the judgments of the Courts of Appeals for

Cuyahoga and Hamilton Counties are affirmed.

Judgment affirmed in

case No. 79-728.

Judgment affirmed in

case No. 79-1124.

17a

CELEBREZzE, C. ]., W. BRowN and SWEENEY, JJ., concur.

HERBERT, LocHER and Hotes, JJ., dissent.

Locuer, J., dissenting. The majority, in the first para-

graph of its opinion, properly recognizes the necessity for

R.C. 2923.04 Yet, before commenting that the statute in

the instant cause does not pass constitutional muster, they

preface their opinion with a disclaimer for their finding

of unconstitutionality. That determination is disappoint-

ing considering that the aim of the statute is to effectively

combat the abhorrent escalation of organized crime, which

is often accompanied by acts of terrorism or illegal use of

group pressure in order to achieve unlawful ends.

The majority did address the issue of vagueness as it

pertains to R. C. 2923.04, but they failed to discuss the

statute on all the issues presented to this court. Addi-

tional issues questioning whether the statue is overbroad

in its scope or cruel and unusual in its punishment, or both,

were also prgperly raised and thereby warrant discussion.

The majority's failure to address all the issues not only

gives little guidance to the General Assembly in the prob-

able redrafting of this statute, but also precipitates addi-

tional prolonged “piecemeal” judicial analysis and determi-

nations on matters presently before this court.

These two cases and those 16 causes held by this court

pending the outcome of this decision—encompassing the

gamut of offenses, which includes drugs, prostitution, por-

nography, extortion, influencing public officials, as well as

the commonplace murder, theft and assault—have already

labored through the crucible of appeal and warrant mere

than a summary dismissal of the total statute on one limited

ground. If new legislation will be forthcoming with issues

now extant, but unaddressed by the majority, a final de-

termination as to the constitutioality of any new legisla-

18a

tion in this area will, regrettably, remain in limbo without

resolution for many upcoming years. ~

In my view, R. C. 2923.04 is constitutional not only on

the issue of vagueness, but also on the issue of overbreadth

and also on the charge that the statute at bar is cruel and

unusual in the punishment to be meted out upon convic-

tion.

In prelude to a separate discussion of the three issues

presented herein, I take exception to the majority ap-

proach. They advance a microscopic view of certain words

and phrases in the statute and then enlarge those words and

phrases to disproportionate extremes beyond their plain

meaning and thereby find constitutional dilemmas within

the statute.

Furthermore, the majority and the appellees are con-

sistently jousting with phantoms when they conjure up

interesting but incredibly naive and trivial hypotheticals

in order to negate the statute in toto. If not kept within

legitimate confines, every statute could be assailed in this

fashion. ‘To follow the analysis of the majority to its logical

conclusion would result in a negation of any enforceable

yet meaningful law in this area.

Organized crime envenoms our everyday life and unob-

trusively robs each individual.® Inexorably, the hand of

8 The United States Chamber of Commerce gives examples of how

organized crime affects our everyday life by its indirect imposition on

legitimate business:

“Spiraling insurance costs that-stem from the underworld’s unique

set of competitive methods; inequitable tax burdens resulting from the

considerable tax-dodging ability of racketeer entrepreneurs; increasing

consumer anger that is evoked when syndicate-owned enterprises supply

inferior goods and services or when legitimate enterprises must raise

prices to compensate for underworld harassment; growing reluctance by

19a

the mob surreptitiously dips into everyone’s pocket, pil-

fering millions annually to a degree which dwarfs the state’s

budget.

The General Assembly has picked up the gauntlet in this

area, and the prosecutors have steadfastly acknowledged the

combat in the legal trenches, while this court sits timorously

by and cancels the contest. The result is the condonation

of the premier malady eroding the vitals of society in all

shapes and forms, to wit, the arrogant strength of organized

criminal activity.

I will now embark upon the legal and philisophical bases,

which buttress the constitutionality of the present statute.

It is rudimentary that a legislative enactment is entitled

to a strong presumption of constitutionality. State v.

Renalist, Inc. (1978) , 56 Ohio St. 2d 276, 278, and State, ex

rel. Jackman, v. Court of Common Pleas (1967), 9 Ohio

St. 2d 159, 161.

The Court of Appeals, in the Forbes case, found R. C.

2923.04 to be vague and overbroad, and, in the Young case,

found R. C. 2923.04 (A) (1), (2), (3) and (5) void for

vagueness. The statute at bar, when given a reasonable

construction and fulfillment of its legislative intent and

purpose, is definitely constitutional.

The United States Supreme Court, when pressed by a

similar dilemma, stated, in United States v. Harriss (1954),

347 U.S. 612, at page 618, that:

some commercial finance companies to extend credit to businesses un-

fortunate enough to be operating in a racketeer-infested industry.”

Chabber of Commerce of the United States, Deskbook on Organized

Crime (Rev. Ed. 1972), 15.

20a

“* * * (I]f this general class of offenses can be made con-

stitutionally definite by a reasonable construction of the

statute, this Court is under a duty to give the statute that

construction. This was the course adopted in Screws v.

United States, 325 U.S. 91, upholding the definiteness of

the Civil Rights Act.” (Emphasis added.)

Contra to the majority opinion, R. C. 2923.04 is not void

for vagueness or overbroad in its scope when given a reason-

able construction.

The doctrines of vaguencss and overbreadth are not

always distinguishable and often overlap. The United States

Supreme Court, in Grayned v. Rockford (1972) , 408 US.

104, at pages 108 and 114, distinguished the vagueness and

overbreadth doctrines, explaining that ‘‘[i]t is a basic prin-

ciple of due process that an enactment is void for vagueness

if its prohibitions are not clearly defined,” whereas “[a]

clear and precise enactment may nevertheless be ‘overbroad’

if in its reach it prohibits constitutionally protected con-

duct.”

That same court, in Colten v. Kentucky (1972), 407

U.S. 104, at page 110, explained that:

“* * * The root of the vagueness doctrine is a rough idea

of fairness. It is not a principle designed to convert into

a constitutional dilemma the practical difficulties in draw-

ing criminal statutes both general enough to take into

account a variety of human conduct and sufficiently specific

to provide fair warning that certain kinds of conduct are

prohibited.”

Furthermore, the element of intent has often preserved

a statute from a challenge of vagueness, since the scienter

requirement serves to relieve the statute of the claim that it

punishs without warning an offense of which the accused

is unaware. Omaechevarria v. Idaho (1918) , 246 USS. 343;

2la

Hygrade Provision Co. v. Sherman (1925), 266 U.S. 497;

Gorin v. United States (1941), 312 U.S. 19; Screws v.

United States. (1945) , 325 U.S. 91; American Communica-

tions Assn. CIO v. Douds (1950), 339 U.S. 382; Boyce

Motor Lines, Inc., v. United States (1952), 342 U.S. 337;

United States v. National Dairy Products Corp. (1963),

372 U.S. 29; Cole v. Richardson (1972) , 405 U.S. 676; and

Colten v. Kentucky, supra.

The statute at bar,.R. C. 2923.04, reads, in pertinent

part, as follows:

“ (A) No person, with purpose to establish or maintain

a criminal syndicate or to facilitate any of its activi-

ties * * *.”. (Emphasis added.)

“Purposely” is defined in R. C. 2901.22 (A) as follows:

‘‘A person acts purposely when it is his specific intention

to cause a certain result, or, when the gist of the offense

is a prohibition against conduct of a certain nature, re-

gardless of what the offender intends to accomplish thereby,

it is his specific intention to engage in conduct of that

nature.” (Emphasis added.)

The statute, in the instant cause, specifically requires a

purposeful act for both the establishment and maintenance

of the criminal syndicate. ‘‘Purpose,” as used in R. C.

2923.04, is synonymous with “‘intent.’”’ See White v. Max-

well (1963), 174 Ohio St. 186. The element of scienter

is not absent from R. C. 2923.04 but is a necessary element

thereof.

Furthermore, in subsection (C), the statute, in great

detail, refers to specific sections of the Criminal Code.

Many of the specific sections referred to in subsection (C)

require the crime to be performed with specific intent.®

9 For example, all the sections below require a scienter element.

R. C. 2907.21, in pertinent part, reads:

22a

In my opinion, the plain meaning of this statute, in-

cluding its reference to specific sections of the Criminal

Code, clearly mandates that the proscribed acts be done

with specific intent and thus is outside the parameters of

objections on the basis of vagueness.

This court, in Cincinnati v. Hoffman (1972) , 31 Ohio St.

2d 163, 166, has stated that: “* * * [T]he injection of

scienter provides a precise and comprehensible standard

which is well within the ability of a person of common

intelligence to understand.”

The majority and the appellees maintain that certain

words and phrases in R. C. 2923.04 are impermissibly vague.

When discussing vagueness of certain words and phrases

similar to the words and phrases in the statute at bar, the

United States Supreme Court, in United States Civil Service

Comm. v. National Assn. of Letter Carriers (1973), 413

U.S. 548, stated, at pages 577-579, as follows:

“(A) No person shall knowingly:

“(1) Compel another to engage in sexual activity for hire.” (Empha-

sis added. )

R. C. 2907.22, as pertinent, provides:

“(A) No person shall knowingly:

“(1) Establish, maintain, operate, manage, supervise, control, or have

an interest in a brothel.” (Emphasis added.)

R. C. 2907.23, pertaining to procuring, in pertinent part, reads:

“(A) No person, knowingly and for gain, shall do * ° ° the follow-

ing.” (Emphasis added. )

R. C. 2913.01, pertaining to theft crimes, defines “deception” as

“knowingly.”

R. C. 2915.02, dealing with gambling, provides, in part, as follows:

“(A)(1) [k]nowingly * ° * engage in conduct that facilities ° * °

bookmaking * * °.” ( Emphgsis added. )

R. C. 2923.04 is premised upon those crimes which require specific

intent, but only when done by five or more persons on a continuing basis

in which a significant income or livelihood is produced.

23a

“There might be quibbles about the meaning of taking

an ‘active part in managing’ or about ‘actively participating

in * * * fund raising’ * * * but there are limitations in the

English language with respect to being both specific and

manageably brief, and it seems to us that although the

prohibitions may not satisfy those intent on finding fault

at any cost, they are set out in terms that the ordinary

person exercising ordinary common sense can sufficiently

understand and comply with, without sacrifice to the public

interest.”

So, too, with the statute at bar, the purpose of the statute

as a whole does not lend itself to concise specific wording.’®

The majority and the appellees go to great lengths in

soothsaying a “parade of horribles’” in which marginal

cases should invalidate the statute at bar as being imper-

missibly vague.

It is firmly established that, if the general class of of-

fenses to which the statute is directed is plainly within its

terms, the statute will not be struck down as vague, even

though marginal cases could be made where doubts might

arise. United States v. Petrillo (1947), 332 US. 1, 7;

Jordan v. De George (1951), 341 U.S. 223, 231.

This court, in Cincinnati v. Hoffman, supra, followed the

above rationale of not allowing a “parade of horribles’’ to

invalidate the statute. Paragraph three of the syllabus in

that case reads:

10 By its very nature, “organized crime” is a very difficult phenomenon

to define. “For most purposes the term ‘organized crime’ has no legal

configuration, although some specific attributes of syndicated criminal op-

erations can be accurately defined.” National Association of Attorneys

General, Organized Crime Control Legislation (1975), 3. Thus, the °

General Assembly did an admirable job in defining the slippery concept

known as “organized crime.”

24a

“Where, under one state of facts, the operation of a

statute is constitutional, a court will not declare it invalid

because under another state of facts, not involved, its oper-

ation would be unconstitutional. (State, ex rel. Herbert

v. Ferguson, 142 Ohio St. 496.) ”

Not all laws are perfectly written, and to conjure up

numerous nuances has a counteracting effect on the very

purpose of the statute at bar. We should address ourselves

to the intent and purpose of the law rather than be bogged

down with the minutia of a prophecy of dire consequences

by fecund imaginations of those who strive to derogate the

meaning of the law.

Furthermore, the Committee Comment to R. C. Chapter

2923 states that R. C. 2923.04 is based largely upon the

proposed federal Criminal Code, and, therefore, analysis

of the federal statute is quite appropriate. At first blush,

it is cognizable that the federal statutes are primarly di-

rected at controlling “‘organized crime,” much akin to R.C.

2923.04.

Section 1952 (a) (3), Title 18, U.S. Code, racketeering,

prohibits interstate travel with intent to promote, manage,

establish, carry on or facilitate unlawful activities.

Rather than making a determination that the federal

Statute is vague, the constitutionality of that section has

been repeatedly upheld. The federal courts found the

statute to prescribe clear standards for men of ordinary

intelligence. United States v. Villano (C.A. 10, 1976),

529 F. 2d 1046, 1055, certiorari denied 426 U.S. 953; Bass

v. United States (C.A. 8, 1963) , 324 F. 2d 168, 173; United

States v. Barrow (C.A. 3, 1966) , 363 F. 2d 62, 65, certiorari

denied 385 U.S. 1001; United States v. Bash (D.C. Ind.

1966), 258 F. Supp. 807, 809, affirmed United States v.

Miller (C.A. 7, 1967) , 379 F. 2d 483, certiorari denied 389

25a

US. 930; United States v. Teemer (D.C. W.Va. 1963) , 214

F. Supp. 952, 956.

The purpose and the language employed in both the

federal statute and the statute at bar are similar. The

Court of Appeals, in the Forbes case, dismissed any analysis

of the federal statute in conjunction with the Ohio statute,

on the grounds that the federal statute expressly limits the

imposition of criminal liability to unlawful activity, whereas

the Ohio statute does not so expressly limit itself.

As noted previously, it is the duty of this court, according

to United States v. Harriss, supra (347 U.S. 612), to rea-

sonably construe a statute to save it from unconstitutional

claims. Thus, I readily note that it was never the intent of

the General Assembly to punish innocent behavior. Fur-

thermore, as previously discussed herein, to apply the

scienter requirement to the commission of legal activities

would be to expand the statute beyond its intended scope."'

The appellees, commenting upon the constitutionality

of R. C. 2923.04, question the use of ‘‘five or more persons”’

as a jurisdictional requirement to invoke the statute at

bar. I find the number “‘five’’ to be rationally related to

the end sought by the General Assembly in enacting R. C.

2923.04. The number “five” as a jurisdictional require-

ment is present in at least three federal anti-criminal sta-

tutes, all of which have been held valid. See Sections 1511

(b) (1) (ii) and 1955 (b) (1) (ii), Title 18, U.S. Code, and

Section 848 (b) (2) (A), Title 21, U.S. Code.

11 This writer is cognizant of Amusement Devises Assn. v. Ohio (S.

D. Ohio 1977), 443 F. Supp. 1040, which declared only R. C. 2923.04

(A) (4) unconstitutional. The presence of the scienter requirement,

coupled with the common-sense approach that only unlawful activity

is prohibited, results in the Amusement Devices Assn. decision being in-

apposite herein.

26a

For the foregoing reasons, a claim of vagueness in the

instant cause is without merit. The language used con-

tains a sufficient definite warning when measured by com-

mon understanding and practice. Even more simply stated,

this court, in Cincinnati v. Hoffman, supra, when constru-

ing a similarly related statute, stated, at page 168:

“ee * * We believe that citizens who desire to obey

the statute will have no difficulty in understanding it * * *”

Colten v. Commonwealth, 467 S. W. 2d 374, 378 (Ky.

1971) .’’’ (Emphasis sic.)

Hi.

Appellees further assert that the statute in the instant

cause is overbroad in its scope. The overbreadth doctrine

may not appropriately be invoked here in this manner.

The United States Supreme Court, in discussing the

overbreadth doctrine in Broadrick v. Oklahoma (1973),

413 U.S. 601, stated, at pages 610-613:

“Embedded in the traditional rules governing constitu-

tional adjudication is the principle that a person to whom

a statute may constitutionally be applied will not be heard

to challenge that statute on the ground that it may con-

ceivably be applied unconstitutionally to others, in other

situations not before the Court. * * * A closely related

principle is that constitutional rights are personal and may

not be asserted vicariously. * * *

“In the past, the Court has recognized some limited

exceptions to these principles, but only because of the

most ‘weighty countervailing policies.’ * * * Another ex-

ception has been carved out in the area of the First Amend-

ment. ;

‘ek *

“* * * Application of the overbreadth doctrine in this

manner is manifestly, strong medicine. It has been em-

27a

ployed by the Court sparingly and only as a last resort.

Facial overbreadth has not been invoked when a limiting

construction has been or could be placed on the challenged

statute. * * *”” (Emphasis added.)

A reasonable construction of the statute at bar to include

a scienter requirement, coupled with the fact that R. C.

2923.04 should only apply to illegal and not lawful activ-

ities, insulate this statute from a claim of overbreadth.

The statute at bar prohibits criminal activity and not

constitutionally protected activity. As the statute specifi-

cally states, activities such as bribery, extortion, promoting

prostitution, theft, illegal trafficking in drugs and lending

at usurious interest rates are clearly prohibited.

Furthermore, the statute is claimed to be so broad that

even minor deviations or improper actions could result

in a first-degree felony.'?

I feel this interpretation is improper since the primary

impetus of the statute is not directed at minor deviations

from the law, but rather is to prevent the operation of

entrenched criminal syndicates, which results in illegal and

financially lucrative enterprises.'*

The definition of “organized criminal activity” in R. C.

109.83 (A) reads, in pertinent part, as follows:

12 The appellees, in case No. 79-1124, who claim the statute at bar

to be overbroad, assert the following “marginal” examples as rationale for

declaring the statute unconstitutional:

“It could include the family of five who return home from their va-

cation each year with an unpurchased towel from their favorite motel”

and “the two-table bridge club composed of suburban housewives who,

once a month, travel downtown for a one-hour luncheon and fail to

deposit dimes in the parking meter.”

13 The cases currently awaiting this decision and the Young case herein

reflect the seriousness of the crimes that are to be prohibited by R. C.

2923.04.

In State v. Young, the net from the criminal activities in a seven-

28a

“* * * ‘Organized criminal activity’ means any combina-

tion or conspiracy to engage in criminal activity as a signifi-

cant source of income or livelihood * * *.” (Emphasis

added.)

Thus, even by definition, R. C. 2923.04 is limited to

those activities which result in “a significant source of

income or livelihood.”

As noted herein, the federal anti-racketeering statute is

much akin to the Ohio statute in language, purpose and

design. The federal courts, when faced with similar argu-

ments, dismissed them by noting that the anti-racketeering

statute was not intended to include an occasional “floating

crap game” or every “sporadic poker game.” United

States v. Teemer, supra (214 F. Supp. 952). See United

States v. Harris (D.C. Va. 1967) , 275 F. Supp. 161. Rather,

the statute at bar is primarily designed to stem the clandes-

tine flow of illegal profits of complicated networks of crime.

Accordingly, I find that R. C. 2923.04 is not overbroad

in its scope in this instance.

III,

Appellees further assert that R. C. 2923.04 violates the

Eighth Amendment’s prohibition against cruel and unusual

month period assertedly exceeded $100,000. State v. Houlihan, supra,

involved a gambling operation where, as the Court of Appeals therein

stated, “there would be $500.00 riding on every roll of the dice” and

“this would make the house take $200.00 per hour and a six-hour

night take-home of $1200 for the house.” State v. Byars, supra, involved

an organized syndicate of nine persons engaged in trafficking of drugs.

Another series of cases, currently pending in the First District Court of

Appeals, involved syndicated organizations of car thieves, i.e., persons

who would strip stolen cars and sell the parts to certain used car dealers

who then would sell the parts to the general public, which operation

involved several hundred thousand dollars over a relatively short period

of time.

Thus, the statute is directed and applied toward limiting the highly

29a

punishment. A violation of the statute at bar constitutes

a first-degree felony.

It is axiomatic that the General Assembly is lodged with

the power to define, classify and prescribe punishment for

crimes committed within the state. State v. O’Mara

(1922), 105 Ohio St. 94, paragraph one of the syllabus,

and Ex Parte Fleming (1930), 123 Ohio St. 16, 20.

The court, in United States, ex rel. Bongiorno, v. Ragen

(D.C. Ill. 1944), 54 F. Supp. 973, referred to the earlier

case of Weems v. United States (1910), 217 US. 349,

wherein the United States Supreme Court stated that the

Eighth Amendment is progressive and should be regarded

as a precept that punishment for crime should be graduated

and proportioned to the offense committed.

In Rummel v. kstelle (1980), 48 U.S. L.W. 4261, the

United States Supreme Court stated, at pages 4263-4264:

“Given the unique nature of the punishments considered

in Weems" and in the death-penalty cases, one could argue

without fear of contradiction by any decision of this Court

that for crimes concededly classified and classifiable as

felonies, that is, as punishable by significant terms of im-

sophisticated and widespread phenomenon, best described as “organized

crime.”

14In Weems, supra, the petitioner therein successfully attacked the

imposition of punishment known as “cadena temporal” for the crime

of falsifying a public and official document. The United States Supreme

Court explicitly described the penalty meted out in Weems, at page

366, when it stated:

“e * * Its minimum degree is confinement in a penal institution for

twelve years and one day, a chain at the ankle and wrist of the of-

fender, hard and painful labor, no assistance from friend or relative, no

marital authority or parental rights or rights of property, no participation

even in the family council. These parts of his penalty endure for the

term of imprisonment. For other parts there is no intermission. His

30a

prisonment in a state penitentiary, the length of the sen-

tence actually imposed is purely a legislative prerogative.”

(Emphasis added.)

A violation of the statute at bar, a felony of the first de-

gree, results in an indeterminate sentence with a penalty

(R. C. 2929.11). Each of the unlawful activities pro-

hibited by R. C. 2923.04 constitutes a crime when com-

mitted by a single individual. The statute at bar upgrades

the sentence in accordance with the gravity of the crime,

when the unlawful activities are performed by five or more

individuals who, on a coutinuing basis, derive significant

income or gain therefrom. i

The General Assembly recognized the state’s compelling

interest in preventing any furtherance of these pervasive

criminal syndicates which continue to grow and yield lu-

crative financial gain.'8 Accordingly, the punishment

meted out for violations of this statute is reasonable and

not violative of the Eighth Amendment.

Accordingly, the judgments of the Courts of Appeals

should be reversed.

prison bars and chains are removed, it is true, after twelve years, but he

goes from them to a perpetual limitation of his liberty. He is forever

kept under the shadow of his crime, forever kept within voice and

view of the criminal magistrate, not being able to change his domicile

without giving notice to the ‘authority immediately in charge of his sur-

veillance,’ and without permission in writing.”

but because it desperately preserves its invisibility many, perhaps most,

Americans are not aware how they are affected, or even that they are

affected at all. The price of a loaf of bread may go up one cent as the

result of an organized crime conspiracy, but a housewife has no way

of knowing why she is paying more. If organized criminals paid income

tax on every cent of their vast earnings everybody's tax bill would go

down, but no one knows how much.” Conklin, ed., The Crime Estab-

lishment, Organized Crime and American Society (1973), 29.

$la

APPENDIX B

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY. OHIO

No. C-780309

STATE OF OHIO,

Plaintiff-Appellee,

vs.

CAROLYN YOUNG

Defendant-Appellant.

DECISION

(Filed April 4, 1979)

Messrs. Simon L. Leis and Thomas P. Longano, 420 Hamil-

ton County Court House, Court & Main Streets, Cincin-

nati, Ohio 45202, for Plaintiff-Appellee,

Mr. Brett Goodson, 222 East Central Parkway, Cincinnati,

Ohio 45202, for Defendant-Appellant.

PER CURIAM.

This cause came to be heard upon the appeal, the tran-

script of the docket, journal entries and original papers

from the Court of Common Pleas of Hamilton County,

Ohio, the transcript of the proceedings, the briefs and the

arguments of counsel.

$2a

Appellant was indicted with twenty-three others under

pellant moved to dismiss the indictment on the basis that

R. C. 2923.04 was unconstitutional, which motion was

overruled by the trial court, appellant entered a plea of

no contest to the charge of engaging in organized crime.

Appellant was found guilty, sentenced, and subsequently

filed a timely notice of appeal.

Appellant’s only assignment of error, that the trial court

erred in overruling her motion to dismiss, presents us

squarely with the issue of the constitutionality of R. C.

2923.04. ‘That statute reads as follows:

§ 2923.04 Engaging in organized crime.

(A) No person, with purpose to establish or maintain

a criminal syndicate or to facilitate any of its activities,

shall do any of the following:

(1) Organize or partecipate in organizing a criminal

syndicate or any of its activities;

(2) Provide material aid to a criminal syndicate or

any of its activities, whether such aid is in the form of

money or other property, or credit;

(3) Manage, supervise, or direct any of the activities

of a criminal syndicate, at any level of responsibility;

(4) Furnish legal, accounting, or other managerial

services to a criminal syndicate;

(5) Commit, or conspire or attempt to commit, or act

as an accomplice in the commission of, any offense of

a type in which a criminal syndicate engages on a

continuing basis;

(6) Commit, or conspire or attempt to commit, or act

33a

as an accomplice in the commission of, any offense

of violence;

(7) Commit, or conspire or attempt to commit, or act

as an accomplice in the commission of bribery in vio-

lation of section 2921.02 of the Revised Code.

(B) Whoever violates this section is guilty of engaging

in organized crime, a felony of the first degree.

means five or more persons collaborating to promote

or engage in any of the following on a continuing

basis:

(1) Extortion or coercion in violation of section

2905.11 or 2905.12 of the Revised Code;

(2) Compelling or promoting prostitution, or pro-

curing in violation of 2907.21, 2907.22, or 2907.23

oi the Revised Code;

(3) Any theft offense as defined in section 2913.01 of

the Revised Code;

(4) Any gambling offense as defined in section 2915.01

of the Revised Code;

(5) Illegal trafficking in drugs of abuse, in intoxicating

or spirituous liquor, or in deadly weapons or dan-

gerous ordnance as defined in section 2923.11 of the

Revised Code;

(6) Lending at usurious interest, and enforcing re-

payment by illegal means;

(7) Any offense, for the purpose of gain.

(D) A criminal syndicate retains its character as such

even though one or more of its members does not

34a

know the identity of one or more other members, and

even though its membership changes from time to

time.

Under the language of the indictment, appellant was

charged under R. C. 2923.04 (A) (1), (2), (3), and (5).

We will examine those subsections to determine their

constitutionality. As our examination is limited to a

discussion of whether these subsections are facially uncon-

stitutional, we find no need to look at the language of the

indictment. If a challenged provision is repugnant to the

due process clause of the Fourteenth Amendment, specifica-

tion of details of the offense intended to be charged will

not serve to validate it. Lanzetia v. New Jersey (1939),

306 U.S. 451.

To determine whether these subsections are indeed vio-

lative of the due process clause, there are certain broad

principles of law which we must consider. The first essen-

tial of due process of law is that a criminal statute give

fair warning of the conduct which it prohibits. If the

terms of a penal statute are not sufficiently explicit to in-

form those who are subject to it what conduct on their

part will render them liable to its penalties, it is too vague

to meet the notice requirements of due process. Connally

v. General Construction Co. (1926), 269 U.S. 385, 46 S.

Ct. 126. No one may be required at peril of life, liberty

or property to speculate as to the meaning of a penal stat-

ute. Lazetta v. New Jersey, supra. ‘Thus, due process re-

quires criminal laws to be explicit for several reasons: to

avoid trapping the innocent by providing fair warning of

what is prohibited so that one may act accordingly; to pre-

vent impermissible delegation of basic policy matters to

policemen, judges and juries for resolution on an ad hoc

and subjective basis; and, to avoid arbitration and discrim-

35a

inatory enforcements. Grayned v. City of Rockford 408

U.S. 104, 92 S. Ct. 2294.

What conduct is proscribed by subsections (A) (1), (2),

(3) and (5)? These sections all prohibit certain action

in connection with any activities of a criminal syndicate.

The legislature has defined a ‘criminal syndicate” as five

or more persons, one or more of whom need not know

the identity of one or more others, yet who collaborate to

promote or engage on a continuing basis in extortion, pros-

titution, theft, gambling, illegal traffic in drugs, liquor,

or weapons, or in any offense for the purpose of gain. R. C.

2923.04 (C) (7) and (D). This broad definition of ‘‘crim-

inal syndicate’’ encompasses every imaginable offense which

is committed on a continuing basis and in which at least five

people are involved in some capacity. While this language

would certainly include the established operations thought

of as “‘organized crime’”’ we find it does nothing to exclude

other groups of people who would be astonished to learn

that R. C. 2923.04 has designated them a member of a

criminal syndicate. What of the five people who work

together at a federal courthouse and who arrange to supply

alcoholic beverages for their office parties? What of the

family of five who every year cuts a Christmas tree from the

property of another without permission? Can it be said

that ‘“‘criminal syndicate” is defined with such specificity as

to give a man of ordinary intelligence notice of what a

“criminal syndicate” is? We think not. Even if we temp-

orarily put aside the difficulties inherent in the definition

of ‘criminal syndicate,’”’ the notice problem becomes even

more apparent when one considers that, under the language

of the statute one need not participate in the offense com-

mitted by the syndicate, or be one of the five people that

comprise the syndicate, to be found guilty of engaging in

organized crime.

36a

Let us consider R.C. 2923.04 (A) (1), which forbids one

to organize or to participate in organizing a criminal syn-

dicate or any of its activities (emphasis added). Organiza-

tions which may well fall within the ambit of the broad

definition of criminal syndicate in R.C. 2923.04 are never-

theless capable of carrying on numerous activities which

may be perfectly legal. Those established operations more

commonly thought of as “organized crime’’ may have

more than one legitimate business operation in addition to

whatever illegal activities they may promote. One who

participates in organizing one of these legal activities, even

one who has no connection with the unlawful side of the

organization, has, under the statute, performed the requi-

site guilty act. The same situation exists with respect to

R.C. 2923.04 subsections (A) (2) and (A) (3), which pro-

hibit providing material aid to any of the activities of

a criminal syndicate and managing, supervising, or di-

recting any of the activities of a criminal syndicate. It is

perfectly conceivable that under such vague language one

engaging in an otherwise lawful occupation has performed

an act prohibited by the wide sweep of the organized crime

statute. Consider the banker who authorizes credit to a

“criminal syndicate” for the purpose of purchasing prop-

erty to be used for a legitimate apartment complex, the

real estate broker who locates and organizes the purchase

of the necessary real estate, and the person who manages

the complex once it is completed. It is our opinion that

language which subjects one to criminal penalties for con-

duct which would normally, and except for the statute,

be considered lawful oversteps the bounds of due process.

Men of ordinary intelligence have no way of ascertaining

what conduct on their part may subject them to arrest and

prosecution.

The lack of notice of what constitutes criminal conduct

37a

under R.C. 2923.04 becomes even more obvious when one

considers that the exceptionally broad language of the

scienter element is not limited to a purpose to facilitate only

illegal activities of a criminal syndicate. One need only

have a purpose to facilitate any of the activities of such

an organization. As pointed out by the United States

District Court for the Southern District of Ohio, Eastern

Division, in striking down R.C. 2923.04 (A) (4) as un-

constitutional, “[W]hile the Supreme Court has held that

the presence of a scienter element may save a statute

which would otherwise be unconstitutionally vague, (cita-

tions omitted), the Supreme Court has never . . . held

that the imposition of a scienter element upon a statute

necessarily renders the statute’s prohibitions sufficiently pre-

cise to withstand a vaguenes challenge.’”’ Amusement De-

vices Ass'n. v. State of Ohio (S. Dist., Ohio, E.D., 1977),

443 F. Supp. 1040, 1051. Certainly a scienter element as

vague as that in R.C. 2923.04 does nothing to help clari-

fy the conduct proscribed under the catch-all definition of

engaging in organized crime.

We find that the statement by the court in Ricks v.

District of Columbia (D.C. Cir., 1968), 414 F.2d 1097,

1101, aptly describes the situation we encounter in dealing

with R.C. 2923.04:

. . . [A] criminal statute perishes on constitutional

grounds when it leaves speculative the task for ascer-

taining the line separating guilty from innocent acts.

It is our decision that because of the statute’s ill-defined

concept of what constitutes a criminal syndicate, and the

statute’s prohibition against otherwise lawful courses of

conduct, unlimited by a scienter element, R.C. 2923.04

(A) (1) (2) (3) and (5) are unconstitutionally void for

vagueness in violation of the Due Process Clause of the

38a

Fourteenth Amendment to the United States Constitution.

We note also that governmental regulation for the public

welfare must be accomplished by methods consistent with

due process. A law which is unreasonable, arbitrary and

capricious and which selects means that have no real or

substantial relation to the result sought to be attained is

inconsistent with due process standards. Nebbia v. People

of State of New York (1934), 291 U.S. 502, 54 S. Ct. 505.

We do not find that a statute so sweeping in its reach

as R. C. 2923.04 is reasonably related to the legislature's

object in controlling organized crime on a small or large

scale. Nor do we see a rational basis for the number five

as a borderline for the purpose of denominating activities

as “engaging in organized crime’’ which otherwise would

be classified as misdemeanors. These activities have sud-

denly been elevated to first degree felonies carrying pen-

alties of a possible sentence of 7 to 25 years in prison and

up to a ten thousand dollar fine when five or more people

are involved. We find it nothing less than capricious, for

instance, that someone engaging in “public gaming,” a

gambling offense encompassed by R. C. 2915.01 which is

ordinarily a minor misdemeanor carrying a maximum fine

of $100.00 and no possibility of imprisonment, may now

be subject to the same punishment as one convicted of

aggravated robbery, kidnapping, or rape, if the public

gaming is done in concert with four other persons. R.C.

2923.04 (C) (4).

Appellant’s assignment of error is sustained. The judg-

ment of the trial court is reversed, and appellant is dis-

charged.

SHANNON and CASTLE, J. J.

1 State v. Houlihan, No. 11-CA-78 (5th Dist. Nov. 1, 1978), State v.

Byars, No. CA 8543 (9th Dist. 21, 1977).

39a

KEEFE, P. J.. CONCURS.

KEEFE, P. J. CONCURRING.

I agree with the result enunciated in the decision.

However I do not join in the determination that the use

of the number five in the subject statute has no rational

basis. The legislature’s selection of that particular number

of persons is not in any way unreasonable as I see it. More-

over, I have no problem whatsoever with the subject stat-

ute’s elevation of penalty for the commission of a crime

or crimes by five or more persons, over and above the

penalty if such are committed by fewer than five. The

true fatal infirmities of R.C. 2923.04 are its vagueness

and its overbreadth.

I include a word about the penalty provision of R.C.

2923.04. Because of the great number of possible activities

to which a proper criminal syndicate law may apply —

differing in their anti-social impact and seriousness — such

a criminal statute could well include a range of penalties

instead of only one. As punishment for the commission

of certain serious crimes, the present penalty could well

be appropriate.

PLEASE NOTE:

The Court has placed of record its own entry in this

case on the date of the release of this Decision.

40a

APPENDIX C

18 U.S.C. 1961

RACKETEER INFLUENCED AND

CORRUPT ORGANIZATIONS

“Section 1961. Definitions

As used in this chapter—

(1) ‘Racketeering activity’ means (A) any act or

threat involving murder, kidnapping, gambling, arson,

robbery, bribery, extortion, or dealing in narcotic or

other dangerous drugs, which is chargeable 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 (re-

lating to theft from interstate shipment) if the act in-

dictable under section 659 is felonious, section 664

(relating to embezzlement from pension and welfare

funds) , sections 891-894 (relating to extortionate cred-

it transactions) , section 1084 (relating to the trans-

mission of gambling information) , section 1341 (re-

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

fraud), section 1503 (relating to obstruction of jus-

tice) , section 1510 (relating to obstruction of criminal

investigations) , section 1511 (relating to the obstruc-

tion of State or local law enforcement) , 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

4la

unlawful welfare fund payraents) , section 1955 (relat-

ing to the prohibition of illegal gambling businesses) ,

sections 2314 and 2315 (relating to interstate trans-

portation of stolen property) , sections 2341-2346 (re-

lating to trafficking in contraband cigarettes) , sections

2421-24 (relating to white slave traffic), (C) any

act which is indictable under title 29, United States

Code, section 186 (dealing with restrictions on pay-

ments and loans to labor organizations) or section

501 (c) (relating to embezzlement from union funds) ,

or (D) any offense involving bankruptcy fraud, fraud

in the sale of securities, or the felonious manufacture,

importation, receiving, concealment, buying, selling,

or otherwise dealing in narcotic or other dangerous

drugs, punishable under any law of the United States;

(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;

(3) ‘person’ includes any individual or entity cap-

able of holding a legal or beneficial interest in prop-

erty;

(4) ‘enterprise’ includes any individual, partnership,

corporation, association, or other legal entity, and any

union or group of individuals associated in fact al-

though not a legal entity;

(5) ‘pattern of racketeering activity’ requires at least

two acts of racketeering activity, one of which oc-

curred 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;

42a

(6) ‘unlawful debt’ means a debt (A) incurred or

contracted in gambling activity which was in viola-

tion of the law of the United States, a State or political

subdivision thereof, or which is unenforceable under

State or Federal law in whole or in part as to principal

or interest because of the laws relating to usury, and

(B) which was incurred in connection with the busi-

ness of gambling in violation of the law of the United

States, a State or political subdivision thereof, o1 the.

business of lending money or a thing of value at a rate

usurious under State or Federal law, where the usuri-

ous rate is at least twice the enforceable rate;

(7) ‘racketeering investigator’ means any attorney

or investigator so designated by the Attorney General

and charged with the duty of enforcing or carrying

into effect this chapter;

(8) ‘racketeering investigation’ means any inquiry

conducted by any racketeering investigator for the

purpose of ascertaining whether any person has been

involved in any violation of this chapter or of any

final order, judgment, or decree of any court of the

United States, duly entered in any case or proceeding

arising under this chapter;

(9) ‘documentary material’ includes any book, paper,

document, record, recording, or other material; and

(10) ‘Attorney General’ includes the Attorney Gen-

eral of the United States, the Deputy Attorney Gen-

eral of the United States, any Assistant Attorney Gen-

eral of the United States, or any employee of the De-

partment of Justice or any employee of any depart-

ment or agency of the United States so designated by

the Attorney General to carry out the powers conferred

on the Attorney General by this chapter. Any depart-

43a

ment or agency so designated may use in investiga-

tions authorized by this chapter either the investiga-

tive provisions of this chapter or the investigative pow-

er of such department or agency otherwise conferred

by law.

44a

APPENDIX D

18 U.S.C. 1962

“Section 1962. Prohibited activities

(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 col-

lection 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 in-

vest, 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 pur-

chase 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 as-

sisting 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 racke-

teering activity of 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 en-

terprise which is engaged in, or the activities of which

affect, interstate or foreign commerce.

45a

by or associated with any enterprise engaged in, or

the activities of which affect, interstate or foreign com-

merce, to conduct or participate, directly or indirectly,

in the conduct of such enterprise’s affairs through a

pattern of racketeering activity or collection of un-

lawful debt.

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

to violate any of the provisions of subsections (a),

(b), or (c) of this section.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.