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Corrupt Business Influence
To prove corrupt business influence, the State was required to show that Jackson, through a pattern of racketeering activity, knowingly or intentionally acquired or maintained, either directly or indirectly, an interest in or control of United States currency from multiple armed robberies. Ind. Code § 35-45-6- 2(2).… A “pattern of racketeering” activity means engaging in at least two incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics that are not isolated incidents. I.C. § 35-45-6-1(d).…
Jackson contends that the State was also required to prove that his criminal acts posed a threat of continued criminal activity, but that the State presented no such evidence. While Indiana’s statute for corrupt business influence does not expressly include an element of continuing the criminal conduct into the future, the statute is patterned after the federal RICO statute, and we look to relevant federal case law for guidance in interpreting the Indiana version of the statute. Waldon v. State, 829 N.E.2d 168, 176 (Ind. Ct. App. 2005), trans. denied. In H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), the United States Supreme Court observed that, with respect to federal RICO law, “to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” (Emphasis added).…
In Waldon, the defendant was convicted of five counts of burglary, five counts of theft, and corrupt business influence related to offenses committed “within the span of a few days[.]” 829 N.E.2d at 175. On appeal, the defendant contended that the State had presented insufficient evidence to support his corrupt business influence conviction because there was no evidence that he had planned to continue his crime spree into the future. We acknowledged the continuity element as set out in H.J., Inc. and held as follows:
In this case, Waldon and his cohorts were apprehended before the crime spree could cover a substantial period of time. Nonetheless, the facts that it extended for a short time and there was no direct evidence of planning for future crimes are not fatal. The pattern which was developing shows regular, almost daily, attempts at burglary. The testimony from trial reveals a plan for ongoing criminal activity as once the conduct was set in motion, it only took a phone call to organize the group and get them into action. From this evidence, the jury could infer that the crimes were to continue into the future.
Id. at 177 (emphasis added).
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Here, the State did not argue or present evidence to show that there was any threatened future criminal conduct related to the robberies Jackson had committed. Still, on appeal the State maintains that
the evidence in this case permits a reasonable inference that if [Jackson] and his accomplices had not been identified and apprehended quickly after the bank robbery, their criminal activity threatened to continue into the future. They were a well organized group employing sophisticated means to regularly perpetrate armed robberies of businesses in Anderson. As in Waldon, the evidence was sufficient to support the jury’s determination that [Jackson] engaged in a pattern of racketeering activity.
[Citation omitted.]
We decline the State’s invitation to analogize this case to Waldon. First, in Waldon the defendant committed five burglaries over the course of a few days. Here, Jackson committed three burglaries over the course of a month. Second, and significantly, the State does not direct us to evidence in the record showing that Jackson and his cohorts, like the defendants in Waldon, were well organized and had any particular method to carry out the burglaries, like a simple “phone call” to “get them into action.” Waldon, 829 N.E.2d at 177. While the State characterizes Jackson, Ricard, and Reed as “a well-organized group employing sophisticated means” to commit the robberies, the State does not point to any evidence to support that characterization. [Citation omitted.] Indeed, under the State’s characterization of these facts, virtually any series of robberies would constitute a pattern of racketeering activity. We hold that the evidence is insufficient to support an inference that Jackson intended to continue robbing businesses in Anderson into the future, and we reverse his conviction for corrupt business influence. [Citation omitted.]
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[Footnote 1:] We disagree with the dissent’s assertion that we are improperly engrafting new words onto the corrupt business influence statute. Rather, again, because our statute is patterned after the federal statute, we follow federal case law to aid in our interpretation of the Indiana statute.
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Affirmed in part, reversed in part, and remanded with instructions.
Friedlander, J., concurs.
Baker, J., concurs in part and dissents in part with separate opinion.
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Baker, Judge, concurring in part and dissenting in part.
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The majority concludes that there is insufficient evidence supporting a conclusion that the racketeering activity amounts to or poses a threat of continued criminal activity—an element that appears nowhere in the statute defining the crime. As noted by the majority, however, our Supreme Court has noted the many differences between the Indiana act and the federal act. See Keesling [v. Beegle], 880 N.E.2d [1202,] 1203-06 (Ind. 2008) (emphasizing that the Indiana statute “uses language significantly broader than” its federal counterpart).
In writing a continuity requirement into the federal RICO statutes, the United States Supreme Court focused heavily on legislative history and Congressional intent. H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238-39 (1989). There is no such legislative history to examine in Indiana. And the General Assembly has had the benefit of the United States Supreme Court’s opinion in H.J. for over two decades but has never elected to adopt the continuity requirement announced in that case.
It is axiomatic that when engaging in statutory interpretation, “Courts may not ‘engraft new words’ onto a statute or add restrictions where none exist.” [Citations omitted.] I believe that to reverse a conviction for failure to prove an element that is nowhere to be found in the statute defining the crime requires us to engraft new words onto a statute. I do not believe it is our place to do so. As a result, I would affirm Jackson’s conviction for corrupt business influence. In all other respects, I concur with the majority.