July 21, 2015 – The Wisconsin Supreme Court has ruled that a conspiracy conviction under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) counted as a prior drug-related crime, allowing an increased penalty for cocaine possession.
In 2005, law enforcement officials indicted 49 members of the Latin Kings street gang in Milwaukee, including Rogelio Guarnero, who was charged with conspiring to distribute cocaine and marijuana, and to commit violent crimes in furtherance of the gang.
Guarnero pleaded guilty to the RICO conspiracy charge. The plea agreement noted that he committed criminal acts to further the conspiracy, but did not specify the crimes he committed. It also noted that police found pot in his apartment during a search, but marijuana and firearm possession charges were dismissed as part of the agreement.
In 2012, Guarnero was charged with possession of cocaine. In the complaint, the state argued that Guarnero was subject to increased penalties under Wis. Stat. section 961.41(3g)(c), which provides enhanced penalties for cocaine possession if a person has previous convictions, under state or federal law, “related to” controlled substances.
The state argued that Guarnero’s RICO conspiracy conviction was “related to controlled substances,” seeking enhanced penalties. Guarnero moved to dismiss under section 961.41(3g)(c), arguing that the RICO conviction did not count as a prior drug offense.
A circuit court denied Guarnero’s motion, concluding that Guarnero’s RICO conspiracy conviction was based on the distribution of controlled substances, among other crimes.
An appeals court affirmed.
In State v. Guarnero, 2015 WI 72 (July 9, 2015), a supreme court majority (5-2) affirmed the appeals court, concluding “Guarnero’s prior conviction, due to the manner in which Guarnero violated the RICO conspiracy statute, relates to controlled substances.”
The majority said the RICO conspiracy law can be violated through alternate methods, from gambling to drugs, but Guarnero’s plea agreement “shows that he was convicted of RICO conspiracy based on racketeering activity involving controlled substances.”
When alternative activities can support one conviction, the majority concluded, courts can consult a “limited class of documents” outside the statutory elements “to determine which statutory alternative formed the basis for the defendant’s prior conviction.”
“To explain further, Guarnero’s plea agreement contained his admission that as a member of the Latin Kings he engaged in acts that included that ‘extortion and distribution of controlled substances’ because Count Two of the indictment is attached to his plea agreement,” wrote Chief Justice Patience Roggensack for the majority.
The majority rejected Guarnero’s claim that courts cannot enhance penalties based on facts that are not submitted to a jury and proven beyond a reasonable doubt, concluding that Guarnero’s plea agreement documents could be used to make that determination.
Guarnero also claimed that “relating to controlled substances” is an ambiguous phrase and the ambiguity should thus be resolved in his favor under the “rule of lenity.”
But the majority concluded that the rule of lenity applies to “grievous ambiguities,” and the phrase “relating to controlled substances” does not rise to that level.
Dissent Says Rule of Lenity Applies
Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson. Bradley said this was an issue of first impression with “the potential to affect the interpretation of numerous criminal statutes,” and would have applied the rule of lenity in this case.
The dissenters highlighted two competing approaches to this issue, and suggested that the majority’s adopted approach conflicts with a recent U.S. Supreme Court decision, Mellouli v. Lynch, 135 S. Ct. 1980 (2015), a deportation case where the Court ruled that a state drug conviction did not count as a conviction “relating to controlled substances.”
The dissent noted that the majority essentially adopts a “modified categorical approach,” allowing courts to consider certain outside documents to determine whether a conviction is drug-related, even if the statute can be violated without drugs involved.
Guarnero had argued that a “categorical approach” applies; if a statute, like the RICO statute, does not require a drug-related offense in order to be violated, then a court cannot count it as a drug-related conviction unless a jury makes that finding of fact.
“Regardless if it is determined as a matter of first impression that the categorical approach or the modified approach controls, I determine that the rule of lenity should be applied here,” wrote Bradley, noting the competing approaches created an ambiguity.