# Opposition Brief — Mississippi v. Roderick > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2438%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 926 ## Text In The beeoeeerrr™ Supreme Court of the United States October Term, 1997 ¢ THE STATE OF MISSISSIPPI, Petitioner, BYRON RODERICK, BILLY SAXTON and CYNTHIA SAXTON, Respondents. + On Petition For Writ Of Certiorari To The Supreme Court Of Mississippi + RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI 2 a Eart L. DENHAM Counsel of Record Levi & DennaoM, Ltp. Post Office Box 580 Ocean Springs, MS 39568-0580 Telephone: (228) 875-1234 Counsel for Respondents Byron Roderick, Billy Saxton and Cynthia Saxton COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-283! QUESTIONS PRESENTED FOR REVIEW Is there any jurisdiction for this Court to hear this case, a case involving the Mississippi Supreme Court's interpretation of Mississippi law and its holding of a Mississippi statute unconstitutionally void for vague- ness? If there is jurisdiction, did the Mississippi Supreme Court err in determining that the Racketeer Influenced Corrupt Organizations Act (RICO), Miss. Code Ann. 8§ 97-43-3(b) and 97-43-5(3, 4) (1972) are unconstitu- tionally vague as applied to Mississippi's civil usury statute thus invoking the jurisdiction of this Court? il LIST OF INTERESTED PARTIES 1. State of Mississippi, Petitioner 2. Hon. Jean Smith Vaughan, Consumer Protection Division, Office of the Attorney General of the State of Mississippi, and Counsel for Petitioner WwW Hon. Leslie Staehle, Consumer Protection Division, Office of the Attorney General of the State of Missis- siIppl 3. Byron Roderick, Respondent ~ Billy Saxton and Cynthia Saxton, Respondents cl Hon. Earl L. Denham, Counsel for Respondents 6. Hon. Robert H. Walker, Circuit Court Judge (ther Interested Parties: 7. Hon. Mike Moore, Attorney General of the State of Mississippi 8. City of Gulfport, Mayor Ken Combs 9. Hon. James B. Halliday, Gulfport Assistant City Attorney 10. Harrison County, Mississippi and the Harrison County Board of Supervisors, Bobby Eleuterius, President, Larry Benefield, David LaRosa, Sr., Robin Alfreda Midcalf, and C. T. Switzer, Jr. 11. Hon. Steve Simpson, Harrison County Assistant Dis- trict Attorney hN Hon. Edward O’Neal, Harrison County Assistant District Attorney . ee 18. ill LIST OF INTERESTED PARTIES —- Continued Ed Twomey, Detective, Gulfport Police Department George H. Payne, Jr., Chief of Police, Gulfport Police Department Hon. William H. Jones, Attorney representing sev- eral “check cashing” businesses in Mississippi Elvin J. Roberts, Check Cashing, Incorporated Mississippi Check Cashing Association, Elvin J. Roberts, President, Todd Broom, Vice-President, Jackie Peterson, Secretary, Dan Robinson, Treasurer, Danny King, former president Hon. Mike Frascogna, Attorney for Mississippi Check Cashing Association iV TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW ........... i Lit CF INT RARO Fes PAREIEO 6s cise ies es euneden ii SPs SIE. aR Rs Ks 64S bin hee hae ga eakcke iv EER ns ATE GRE EUG TE BAO 6 06 1.0 PKs pe weeeenaeD Vv PLS) fA to Se POR ee Dern ae eid Ae ere rye” hd eMer per l CONSTITUTIONAL AND STATUTORY PROVI- SNS SecA LACK ERATE REN OR ETOP ES eS sabia tees 2 DIAEROIME GIR, CTE Mh eri vel iavcdthaveteva’. Oo CORRECTION OF MISSTATEMENTS IN THE PETI- c 2 2, ERE Cg re ee ey Peek cary eee te pee a mere 6 REASONS FOR DENYING THE WRIT............. ) |. Review is not required as no federal question was presented in the courts below........... 10 NM The Mississippi Supreme Court was not required to rely upon case law from other juris- dictions in its analysis of this matter......... 1] 3. The failure of the Mississippi RICO statutes and the indictment to afford due process notice iat Of OCUIVIEY 86 CFIMNEMIBE 2 o oie cc cc wieas ss 12 4. The Petitioner’s claim that intent is proved by Sas * enema = rE ig Sid ha 14 CXR CRE Ges bos od DEGRA S ae RAEN ORES eee en A TABLE OF AUTHORITIES Page Cases-FEDERAL: Adams v. Robertson, 117 S.Ct. 1028, 520 U.S. 83, 137 ae ae i ORS ee a ah cc ae 18 Connally v. General Construction Co., 269 U.S. 385, 6:65: 396776 6G Fe OS ok ck 11 U.S. v. Aucoin, 964 F.2d 1492 (5th Cir. 1992), cert. denied, 121 L.kd.2d 587, 113 S.Ct. 661 (1992) ...... 15 U.S. v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. SF CRE cor PCE uae ek Pade ee Cen SG Ook, 15, 16 United States v. Addonizio, 451 F.2d 49, 58 n. 7 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, = ge FE 2 Se | MLE» ge 3 RD RO tg Page Sh I A 12 United States v. Biasucci, 786 F.2d 504 (C.A. 2 1986), cert. denied, 479 U.S. 827, 107 S.Ct. 104 (1986)..... 16 United States v. Eufrasio, 935 F.2d 553 (C.A. 3 1991), cert. denied, 502 U.S. 925, 112 S.Ct. 340, 116 Di ME A I NE a oe Nn I ST i a 12 United States v. Pepe, 747 F.2d 632 (C.A. 11 1984) ...16, 17 Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, ey Ren ae NE i een Wena ee a yy aud 15 CASES-STATE: Polakoff v. State of Florida, 586 So.2d 385 (Fl. 1991).... 17 Ahmad v. State, 603 So.2d 843 (1992) ................ 13 Huntley v. State, 524 So.2d 572 (Miss. 1988).......... 13 Hydrick v. State, 150 So.2d 423, 246 Miss. 448 (Miss. DES oa che NAA Soa ih as 6 ns Palys BEE 4 hose ee 8 17 Vi TABLE OF AUTHORITIES — Continued Page Nichols v. City of Gulfport, 589 So.2d 1280 (Miss. 1991) . ..... 0's os:s'e wile ateate tiie eile anata aimee oh aall 13 Pearl River Valley Water Supply Dist. v. Hinds County, 445 So.2d 1330 (Miss. 1984) (2987) . . oc 00 wa.c0.ib 6a ane ene ae 15, 16 State v. Thrower, 62 Ohio App.3d 359, 575 N.E.2d $63 (1989) Sunburst Bank v. Keith, 648 So.2d 1147 (Miss. 1995) .... 17 STATUTES: i8 U.S.C. § 1962... 0. 53.4485 ee a aes 2 28 USC. § 1237. .5<.c 5k ee AS herr eat FCCP awe Miss. Code Ann. & /2-47=2 40min cbus st bntcehsheeeuns 17 Miss. Code Ann. § 75-17-5 (1972) ..... PED GU aais ae Miss. Code Ann. § 97-43-3(b) (1972)...... ag ay Stas Se 2 Miss. Code Ann. § 97-43-5(3, 4) (1972) .............2.. 2 OTHER AUTHORITIES: 62 Harv. L.R. 77. (3968S sic ke ee ee eere a 14 ; ii a JURISDICTION Petitioner relies upon 28 U.S.C. § 1275 to invoke the jurisdiction of this Court. Respondent assumes that Peti- tioner has committed a scrivener’s error in attempting to cite 28 U.S.C. § 1257. (App. - 1.) According to 28 U.S.C. § 1257, jurisdiction of this Court is granted after final judgment or decree is ren- dered by the highest court of a state in the following instances: (a) where the validity of a treaty or statute of the United States is drawn in question; (b) where the validity of a statute of any State is drawn into question as being repugnant to the Constitution, treaties or laws of the United States; or (c) where any title, right, privilege, or immunity is specially set up or claimed under the Constitution, treaties, statutes, or any commission or _ authority of the United States. In the instant case, there is no dispute regarding the validity of a treaty or statute of the United States. As to the validity of a state statute, the Mississippi Supreme Court examined the use of Mississippi's civil usury law as the predicate “crime” for an indictment under the Mississippi RICO statute and held that the application of the Mississippi RICO statute to the Mississippi civil usury law would criminalize activity not previously criminal under Mississippi statutes without fair notice and defi- nite warning of the prohibited conduct. Such a finding is clearly not repugnant to the Constitution, treaties or laws of the United States. Finally the record is clear that this matter does not involve any title, right, privilege, or immunity protected by the Constitution, treaties, statutes, or any commission or authority of the United States. This Court does not have jurisdiction in this matter. CONSTITUTIONAL AND STATUTORY PROVISIONS Petitioner sets forth 18 U.S.C. § 1962 in its declaration of the constitutional and statutory provisions which are to be reviewed by this Court. This citation, however, is also erroneous as the Respondents were not indicted under the federal RICO Act, nor did the Mississippi Supreme Court or the trial court find it necessary to rely upon the federal RICO Act for guidance to determine the constitutionality of Petitioner’s utilizing Mississippi's civil usury law as the basis for a criminal indictment of Respondents under Mississippi's RICO Act. As the record clearly demonstrates, the Petitioner’s sole reference to federal RICO during argument before the lower court was to inform the iower court that Mississippi RICO i: similar to federal RICO. No federal statute played any role in the history of this case. The decision turned on state law as interpreted by the Mississippi Supreme Court, which held that under the peculiar circumstances of this case and given the interpretation of Mississippi statutes concerning usury, the state RICO statutes, Miss. Code Ann. §§ 97-43-3(b) and 97-43-5(3, 4) (1972), are constitutionally void for vagueness when used by the State to attempt to criminalize usury, a civil offense in Mississippi. (Pet. App. - 43.) —— —¢ — STATEMENT OF THE CASE Respondent, BYRON RODERICK, a businessman from Jackson, Mississippi, opened a check cashing service in Gulfport, Mississippi. He leased a location, raised the necessary start-up cash, and hired Respondents, BILLY SAXTON and CYNTHIA SAXTON, to open and manage the business which was known as “We Cash It”. The business purchased a license from the City of Gulfport in September of 1993 and advertised itself. The purpose of the business was to provide discounted cash for a cus- tomer’s check with the customer allowed fourteen to sixteen days to redeem the check. If the customer chose not to redeem the check, then “We Cash It” would deposit the customer’s check. Although customers were not required to pay interest, a one-time fee was charged for the service. Customers sometimes post-dated checks which they tendered to the business. The check cashing industry was at the time of the alleged crime unregulated by the State of Mississippi but flourishing statewide. The Mississippi Attorney General's office (including Leslie Staehle and Jean Smith Vaughan in their capacities as Special Assistant Attorneys Gen- eral), the Legislature, and the Check Cashing Association were meeting regularly to discuss and negotiate legisla- tive regulation of the fledgling industry prior to and during the time Respondents were in business. (R - 20-21, 110-112, 114-115.) Testimony from various witnesses was presented to the lower court regarding conversations and meetings with the Check Cashing Association, the district attorney, various members of the Attorney General’s office, the legislative Banking Committee, and Attorney General Mike Moore. (R - 71, 83-85, 108-111, 114, 118-126.) During cross-examination, Special Assistant Attorney General Jean Smith Vaughan acknowledged that the meetings occurred. Because of the State’s interest in regu- lating check cashing, Roderick and others in the business repeatedly tried to obtain and did obtain guidance from the Attorney General's office regarding the legality of the business prior to opening. However, after “We Cash It” opened for business an investigation by the City of Gulfport Police Department ensued utilizing information and testimony provided by, of all people, Special Assistant Attorney General Leslie Staehle. On October 22, 1993, eight police officers raided the premises of “We Cash It” with a search warrant based on Staehle’s “interpretation” of Mississippi’s RICO stat- ute. The police officers meticulously went through every- thing on the premises, including a fast food lunch bag containing a hamburger. Except for a few large pieces of furniture, the police seized nearly everything on the premises, including all checks, business documents, video tape machines, calculators, telephones, filing cabi- nets, and even the hamburger, causing a total shutdown of the business. Roderick and the Saxtons could not con- tinue to operate the business without their business records. The destruction of the business was one obvious intent of the search. Despite numerous telephone calls by Respondents’ counsel during which the police maintained that there was no ongoing investigation in progress, the confiscated property was not returned until November 9, 1993, when furnishings and equipment of the office, minus the nego- tiable instruments, were returned to the Respondents. Without the checks the business completely failed. On August 19, 1994, Respondents, Byron Roderick, Billy Saxton, and Cynthia Saxton were indicted by the Grand Jury of Harrison County, Mississippi, on two counts of alleged violations of Mississippi RICO (not three counts as is alleged by the Petitioner). (Pet. - 3; Pet. App. - A-48 - A-52.) The statute upon which the underly- ing predicate “crime” of usury was based was not cited in the indictment. On March 23, 1995, the Petitioner filed a Motion In Limine requesting the court to “exclude any evidence or testimony by the Defendants (Respondents) of any offi- cial or unofficial action or lack of action by the Office of the Attorney General, its agents or employees, relating to the business of check cashing in the State of Missis- sippi...” (CP - 17-22. Quoting from p. 17.) Defendants / Respondents filed a Suggestion of Conflict of Interest and Motion for Counsel to Withdraw on or about March 28, 1995. During a hearing held on May 12, 1995, arguments of counsel were heard by the Circuit Court, and the pre- arrest conduct of Leslie Staehle and Jean Smith Vaughan, who were now representing the State in its prosecution of this case, was presented to the Circuit Court. The court was informed that these two attorneys, while acting in their official capacities as Special Assistant Attorneys General and other state officials, had represented to Roderick and other agents and representatives of check cashing businesses that check cashing as a business in Mississippi is legal. Further, these same two attorneys were intimately involved in negotiations, conferences and legislative committee meetings regarding proposed legis- lation to regulate check cashing businesses in Mississippi. (R - 21-23, 28, 30, 71-73, 83-84, 96, 108-112, 119-121.) According to the record, Special Assistant Attorney Gen- eral Staehle gave a verbal opinion to the Gulfport Police Department wnich precipitated the arrests of the Respon- dents for the same alleged “criminal activity” to which on the other hand she was referring before the legislature as a business activity which should be regulated. Respondents filed a Motion to Quash and Dismiss Indictment and Demurrer and supporting brief on May 30, 1995. On June 5, 1995, the date set for the trial, a hearing was held on the motion, and three days later the Circuit Court entered its Order dismissing the indict- ment. (Pet. App. A-31 - A-42.) The Petitioner then appealed the matter to the Mississippi Supreme Court. After briefs were submitted by all parties, the Mississippi Supreme Court affirmed the Circuit Court’s order. State v. Roderick, 704 So.2d 49, 54-55 (Miss. 1997). Being aggrieved with the decision of the Mississippi Supreme Court, the Petitioner filed its Petition for Writ of Certiorari to which Respondents now reply. CORRECTION OF MISSTATEMENTS IN THE PETITION The Petitioner complains that the Mississippi Supreme Court erred in accepting testimony presented in the Circuit Court regarding the Respondents’ efforts to obtain information from the Attorney General’s office regarding the law and check cashing business prior to beginning a new venture in this fledgling industry. The testimony clearly established a lack of criminal intent and was properly offered for that purpose as well as to dem- onstrate prosecutorial misconduct. The Petitioner, although admitting that meetings occurred and contact was made with various individuals in the check cashing industry, refused to acknowledge its own participation in the Respondents’ efforts to follow state law. During the hearing before the Circuit Court undisputed testimony was offered that check cashing is unregulated in Missis- sippi and that -he Attorney General’s office met on numerous occasions with representatives of the check cashing industry to formulate proposed regulations for submission to the Legislature. In any case no federal issue exists in regard to the Petitioner’s concerns. The Petitioner has made unsubstantiated and unproven allegations that the Respondents advanced funds for fees up to 900% interest. Testimony before the Circuit Court established that those in the check cashing industry were discounting negotiable instruments and charging a one time fee to cash each check. Again, no federal issue is presented. Petitioner’s argument that the purpose of RICO is to eradicate organized crime implies that the Respondents are involved with organized crime. During briefing before the Mississippi Supreme Court, the Petitioner’s numerous references to “loansharking” were made in the State’s desperate attempt to raise a stigma of mafia con- nections and underworld dealing which are nothing short of pathetic. These implications were never raised before the Circuit Court and are not supported by the record, the facts, or the indictment. The record clearly demonstrated the following: (a) Byron Roderick was a respected busi- nessman in Jackson, Mississippi, who has owned and a operated a vacuum cleaner sales and service business for over twenty-two years (R - 17, 109); (b) Billy Saxton is a retired City of Gulfport police officer (R - 16-17); (c) Cynthia Saxton is a therapist in a hospital. (R - 16-17); and (d) “We Cash It” was the first venture by any of these parties in a check cashing business. There is no evidence to support the Petitioner’s allegation that these parties have any history of involvement with organized crime. The Respondents would point out, arguendo, that if the Respondents are involved with organized crime, then the Attorney General was knowingly meeting with the mafia to regulate and profit by its nefarious activities. Again, there is no federal issue. The record does not support the Petitioner’s claim that Respondents have “claimed to be outside the law” or stated “that no law applied to them.” (Pet. - 20.) Since Mississippi has no regulatory guidelines for check cash- ing businesses, Roderick, along with numerous others in the business, contacted and met with the Attorney Gen- eral’s office to seek guidance and to discuss proposed legislative regulation. Based upon information obtained from the Attorney General’s office, and in particular from the very same Special Assistant Attorneys General who are currently prosecuting this matter, the Respondents opened for business. This was only one of many similar check cashing businesses which operated in Mississippi at the time. After the State seized nearly every asset in the business, “We Cash It” ceased operation and went out of business. If Respondents had truly believed that “no law applied to them,” they would not have made such a diligent effort to obtain guidance from the State prior to beginning operations. Respondents were advised that there was no law governing check cashing in Mississippi, but it is clearly improper to attempt to put a cynical spin onto what is a mere statement of fact. Lack of regulation by the State of Mississippi does not confer the specter of illegality upon the industry. Thus, lack of criminal intent is apparent from the record, but this is hardly an issue which this Court should review. REASONS FOR DENYING THE WRIT The Petition- for Writ of Certiorari should be denied as no federal question was raised in the courts below and none can be raised here. The validity of the indictment in the instant case is solely dependent upon an interpreta- tion of Mississippi’s RICO Act as it applies to Missis- sippi’s civil usury statute as interpreted by Mississippi's Supreme Court. There is no interpretation or application of federal law in the record. The Mississippi Supreme Court in affirming the lower court’s dismissal of the indictment against the Respondents, held that the Mississippi RICO statute as it was applied in this matter to an allegation of usury is unconstitutional in Mississippi as it failed to meet the notice requirements of the Fourteenth Amendment. The Mississippi Supreme Court’s finding of unconstitu- tionality pertains only to that portion of the Mississippi RICO Act which applies to usury as defined under state law. 10 1. Review is not required as no federal question was presented in the courts below: The Mississippi Supreme Court’s decision was a plainly correct analysis of the law of the State of Missis- sippi. Here there is no conflict between state and federal law or between the decision of the Mississippi Supreme Court and that of any federal court. Petitioners’ primary concern distills down to the fact that the Mississippi Supreme Court did not rely upon federal RICO cases when making its analysis of Mississippi RICO and Missis- sippi’s usury statute. In fact, no such reliance is possible in a case based solely on state court interpretation of state usury statuies. Although the wording of Mississippi RICO statutes may be based upon that of the federal RICO statutes, the indictment specifically cites Missis- sippi RICO. Neither the trial court nor the Mississippi Supreme Court were required to rely upon federal RICO in their interpretation of state law. (Pet. App. - A-48 - A-52.) The indictment does not cite the Mississippi usury statute which is relied upon by the State as the underly- ing predicate crime. This would trouble any court, but here there was an obvious reason. It did not cite the only statute applicable to Respondents because it is civil — not criminal in nature. After Respondents were indicted, the Petitioner verbally informed them that the indictment was based upon Mississippi's civil usury statute. The Mississippi Supreme Court wryly noted the “legal gym- nastics.” State v. Roderick, supra, at 54 (Miss. 1997). 1] Petitioner alleges that the Mississippi Supreme Court misapplied the test for constitutionality set forth in Con- nally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), but a review of the Mississippi Supreme Court's decision clearly indicates otherwise. State v. Roderick, supra, at 52-55. The Mississippi Supreme Court’s decision was a plainly correct application of the Connally test to the facts and law in the instant case. 2. The Mississippi Supreme Court was not required to rely upon case law from other jurisdictions in its analysis of this matter: The lower court was asked to determine whether Mississippi RICO was correctly applied to the facts in this particular case, not whether federal RICO or another state’s RICO statutes are constitutional or even applica- ble. The lower court was also asked to determine whether the Respondents were given sufficient constitutional notice that their business activities could be construed as criminal acts forbidden by usury statutes of the State of Mississippi, not by usury statutes of Florida, Ohio, New Jersey, New York, or those of any other state. Although, arguendo, RICO state statutes may generally differ little from state to state they do differ, and the usury statutes of each state significantly differ. Some states have crimi- nal usury statutes, but in Mississippi the only criminal statute governs Small Loan Regulatory licensees and even the Petitioner has never charged its applicability to the Respondents. The Petitioner has repeatedly stated that the statute upon which the RICO indictment is based is the civil usury statute. 12 The case law from other jurisdictions that was cited by Petitioner discussed RICO indictments which were based upon criminal statutes, not a civil statute as exists in Mississippi. The Mississippi Supreme Court speci- fically addressed this point in its decision: Also, all crimes used as bases for a RICO pros- ecution are outlined in the RICO Act, and there are cross-references between RICO and the underlying criminal statutes. There do not appear to be any other cases in which Mississippi or any other state has tried to prosecute under RICO with a civil statute as the underlying offense. [Emphasis added.] No reference to RICO is made in the usury statute or the other statutes on interest and finance charges, other than in the previ- ously discussed § 75-67-119. A person of ordi- nary intelligence reading the laws governing interest rates, finance charges, and usury would not be given fair warning that usury is a pros- ecutable offense. State v. Roderick, supra, at 54. 3. The failure of the Mississippi RICO statutes and the indictment to afford due process notice that an activity is criminal. Pursuant to case law cited by the Petitioner, “an indictment charging a statutory crime is sufficient if it substantially follows the language of the criminal statute...” {Emphasis added.] United States v. Eufrasio, 935 F.2d 553, 575 (C.A. 3 1991), cert. denied, 502 U.S. 925, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991). See also United States v. Addonizio, 451 F.2d 49, 58 n. 7 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972). In Eufrasio, the court stated that the indictment must track the language of the criminal statute in order to allow the defendant adequate knowledge to develop a defense against the charge. Id. at 13 575-576. In the instant case, the indictment against the Respondents did not cite any criminal statute other than RICO; it merely refers in the abstract to the civil usury statute. According to the Petitioner, “[d]ue process will not invalidate a statute if assistance [is] necessary to give the words of the statute a reasonable meaning,” one may merely refer to the dictionary for enlightenment. (Pet. - 16.) However, in a criminal matter due process requires notice of the elements of the alleged crime, not just a definition of the word “usury.” A penal statute must be sufficiently explicit so as to inform those subject to its mandates that conduct will be penalized. Huntley v. State, 524 So.2d 572 (Miss. 1988). See also Nichols v. City of Gulfport, 589 So.2d 1280 (Miss. 1991) [Penalties of the law cannot rest upon subjective guidelines, nor can the law subject individuals to penal consequences without first providing sufficiently definite notice of warning of what is prohibited. ] Without a clear understanding of the elements of the underlying predicate crime upon which the RICO indict- ment is based, the Respondents had no way of knowing with what they have been charged. Since the statute upon which the Petitioner relied for the indictment is a civil usury statute, the Respondents had no way of knowing that their acts could be considered criminal in nature. Words of a statute or act should be ascribed their ordinary and usual meaning absent legislative guidance to. the contrary. Ahmad v. State, 603 So.2d 843, 845 (1992), citing Pearl River Valley Water Supply Dist. v. Hinds County, 445 So.2d 1330, 1334 (Miss. 1984). The “ordinary and 14 usual meaning” of a violation of the usury statute relied upon by the Petitioner has been interpreted by the Missis- sippi Supreme Court as a civil offense not a criminal offense. See State v. Roderick, supra, 53-55. Therefore, there was no notice that a violation of the usury statute, if in fact such occurred, was subject to criminal prosecution. The Petitioner argues that due process does not require a finding that a statute is void for vagueness because the average person must seek legal counsel to interpret the statute. Citing 62 Harv. L.R. 77, 78 (1948). Respondents are entitled to notice of the crime with which they have been charged. The requirement of notice is not an attempt to place the Respondents outside the law but to enable them to prepare a defense against the charges contained in the indictment. Testimony and evi- dence presented during a hearing before the lower court clearly demonstrated that the Respondents and all other individuals interested in establishing check cashing busi- nesses in Mississippi were making every effort to comply with the law. The police had no idea a “crime” was occurring until the Special Assistant Attorney General explained matters. Even the Mississippi Supreme Court has been unable to explain to the Special Assistant Attor- ney General that no crime ever occurred. Given the con- fusion of the experts, the vagueness of the statute should be apparent. 4. The Petitioner’s claim that intent is proved by the indictment: Petitioner argues that the Mississippi “RICO statute adds an element of ‘criminal intent’ which must be read 15 in pari materi [sic] and applied to each of the prohibited acts in the statute.” (Pet. - 21, para. 2.) The Petitioner relied upon U.S. v. Aucoin, 964 F.2d 1492 (5th Cir. 1992), cert. denied, 121 L.Ed.2d 587, 113 S.Ct. 661 (1992), to claim that the element of intent is supplied by the indictment itself and argues: “The RICO statute must be construed so as to effectuate the legislative intent to eradicate orga- nized crime. When the language of the statute conveys sufficient definite warning of the proscribed conduct when measured by common understanding and practices, the Constitution requires no more.” (Pet. - 22-23, 25.) In Aucoin, the jury was instructed that proof of specific intent was required before a defendant could be con- victed of the crimes charged, but the court did not hold that one may look to the indictment to establish intent. Supra, at 1498. Here, the prohibited act is not contained within those statutes specifically set forth in RICO as prohibited acts but instead is an alleged violation of a civil usury statute, a statute subject exclusively to inter- pretation by the Mississippi Supreme Court. “In determining the sufficiency of the notice, a stat- ute must be examined in light of the conduct with which a defendant is charged. The test for vagueness is not whether there are marginal or remote cases in which its clarity may be in doubt, but whether it conveys an ade- quate warning in a specific situation. State v. Passante, 225 N.J. Super. 439, 542 A.2d 952, 956 (1987), citing Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); U.S. v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). The Passante court stated: “ ...2C Rico does not make conduct criminal that was not already prohibited 16 before its enactment. It was intended to serve as a reme- dial statute, providing enhanced criminal and civil sanc- tions for conduct prohibited by existing state and federal law.” [Emphasis added.] Passante, supra, at 957. Here the Petitioner is attempting by invoking RICO to make con- duct criminal that is not rendered criminal by state law. Respondents clearly did not have “sufficient definite warning of the proscribed conduct.” See U.S. v. Petrillo, supra. According to the Petitioner, the prosecution would never have to prove any defendant’s intent because the “intent” would always be established by the use of the term “willful” in the indictment. How can the Respon- dents prepare a defense if (1) the Petitioner does not have to specify the crime charged, and (2) the Petitioner is allowed to prove intent by the use of terminology such as “willful” in the indictment. Such manipulation of the true meaning of “due process” was surely never envisioned by the makers of the Constitution of the United States and the Constitution of the State of Mississippi. There can be no question that the applicabie mens rea of the predi- cate “crime,” in this case “usury,” is an essential which must be proved by the State. In United States v. Biasucci, 786 F.2d 504, 512 (C.A. 2 1986), cert. denied, 479 U.S. 827, 107 S.Ct. 104 (1986) the court stated that since “RICO imposes no additional mens rea requirement beyond that found in the predicate crimes” we must “look to the scienter elements found in the statutory definitions of the predicate crimes to deter- mine the degree of knowledge that must be proved to establish a RICO violation.” Id. at 512. See also United States v. Pepe, 747 F.2d 632, 675-76 (C.A. 11 1984); State v. 17 Thrower, 62 Ohio App.3d 359, 575 N.E.2d 863, 872 (1989). The court should define the mental state required by the predicate act, ie., “knowingly” and “willfully.” United States v. Pepe, supra, at 676. In the instant case, the “predi- cate crime” is alleged by the Petitioner to be a violation of the civil usury statute of the State of Mississippi, an act in Mississippi which is no “crime” at all. Respondents could only prepare a defense based upon the charges contained within the indictment. See also Polakoff v. State of Florida, 586 So.2d 385 (Fl. 1991). [A count charging a defendant with a state law violation of RICO which defines “an unlawful debt” only by reference to that term in the statute, which itself refers generally to many other statutes relating to many types of illegal usurious debts is invalid, as the information does not directly refer to the usury chapter generally or to a speci- fic usury statute.] Where a crime consists of an act combined with specific intent, intent is just as much an element of the crime as the act, thus mere general malice or criminal intent is insufficient as an element and specific intent must be shown as a matter of fact, either by direct or circumstantial evidence. Hydrick v. State, 150 So.2d 423, 246 Miss. 448 (Miss. 1963). In Mississippi, in order to establish a civil violation of the usury statute Miss. Code Ann. § 75-17-1 (1972), the creditor must intend to commit usurious acts. (App. - 1-2.) Sunburst Bank v. Keith, 648 So.2d 1147 (Miss. 1995). However, even if intent is established and it is found that the creditor exceeded the lawful interest rate, forfeiture of 18 “all interest” is the penalty. Id. at 1152. See also Miss. Code Ann. § 75-17-5 (1972). (App. - 2.) + CONCLUSION Evidence and testimony presented to the lower court demonstrates that the Respondents were involved in a legitimate, though unregulated, business which is a rela- tively new and growing industry in the State of Missis- sippi. Testimony established that various individuals contacted the office of the Attorney General regarding the business of “check cashing” in the State of Mississippi and were told that it is legal. (R - 21-23, 71-73, 83-84, 103, 108-112, 119-121, 125-126, 129.) After contacting the office of the Attorney General and various banking and finance officials throughout Mississippi ior instructions and advice, the Respondents began operating a “check cash- ing” business in Gulfport known as “We Cash It.” Respondents were then targeted for arrest and caused to be indicted by the same state officials to whom they had turned for advice. Respondents never had any intention of violating the laws of the State of Mississippi, never violated any state or federal law, and have never claimed “to be outside the law” or implied that “no law applied” to them. Respondents made diligent efforts to identify what laws applied to the “check cashing” industry and to abide by those laws. The Mississippi Supreme Court held that Missis- sippi’s usury statute is clearly civil not criminal, thus no matter how many lawyers review the statute and inter- pret its wording, the statute has no criminal penalty. The aA a 9 Wen SOT NT oe a Dinan PR ol OMEN, 5 NOL Ly