State v. Schlosser

681 N.E.2d 911, 79 Ohio St. 3d 329, 1997 Ohio LEXIS 1994
Ohio Supreme Court·Decided August 6, 1997·No. Nos. 96-1389 and 96-1390·Published·Cited by 98 cases

Opinion

Lundberg Stratton, J.

The issue in this appeal involves the mental state required for a conviction under Ohio’s Racketeer Influenced and Corrupt Organizations (“RICO”) statute. In particular, the issue certified to this court by the Court of Appeals for Montgomery County is, “Is any culpable mental state required for a violation of R.C. 2923.32(A)(1) and, if so, what culpable mental state is required?” We hold that Ohio’s RICO statute, R.C. 2923.32(A)(1), plainly indicates a purpose to impose strict liability.

Formerly, legislative silence as to mens rea in a statute defining an offense was interpreted as an indication of the purpose to impose strict liability. See, e.g., State v. Lisbon Sales Book Co. (1964), 176 Ohio St. 482, 27 O.O.2d 443, 200 N.E.2d 590, paragraph two of the syllabus. However, R.C. 2901.21(B) modified this rule so that “[w]hen the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.” (Emphasis added.) Id.

R.C. 2923.32(A)(1), Ohio’s RICO statute, provides: “No person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt.” With the exception of R.C. 2923.32(A)(3),1 which sets forth a “knowingly” mental state, R.C. 2923.32 is silent as to what culpable mental state a defendant must possess in order to be convicted.

The appellate court based its decision on its own previous holdings which found that R.C. 2923.32(A)(1) neither specifies culpability nor plainly indicates a purpose to impose strict liability. Thus, the court interpreted R.C. 2901.21(B) to require recklessness as the mens rea element for a violation of R.C. 2923.32(A)(1). We find, however, that the plain language of the statute, the [332] legislative intent and public policy considerations behind the statute, and the varying culpable mental states necessary for the predicate offenses, unequivocally indicate a purpose to impose strict liability for the conduct described in the section.

In general, R.C. 2923.32 is based on the federal RICO statute, Section 1962, Title 18, U.S.Code. Thus, a review of the purpose behind the federal statute is instructive. Congress, in enacting the Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 941 (codified at Section 1961 et seq., Title 18, U.S.Code) stated:

“The Congress finds that (1) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud, and corruption; (2) organized crime derives a major portion of its power through money obtained from such illegal endeavors as syndicated gambling, loan sharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs, and other forms of social exploitation; (3) this money and power are increasingly used to infiltrate and corrupt legitimate business and labor unions and to subvert and corrupt our democratic processes; (4) organized crime activities in the United States weaken the stability of the Nation’s economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten the domestic security, and undermine the general welfare of the Nation and its citizens; and (5) organized crime continues to grow because of defects in the evidence-gathering process of the law inhibiting the development of the legally admissible evidence necessary to bring criminal and other sanctions or remedies to bear on the unlawful activities of those engaged in organized crime and because the sanctions and remedies available to the Government are unnecessarily limited in scope and impact.

“It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” Organized Crime Control Act of 1970, Statement of Findings and Purpose, 84 Stat. 922, reprinted in 1970 U.S.Code Cong. & Adm. News at 1073.

Interpreting the mens rea requirement of the federal RICO statute, United States v. Scotto (C.A.2, 1980), 641 F.2d 47, 55-56, held that the RICO statute does not require any specific intent to engage in an unlawful pattern of racketeering. The United States Supreme Court has also held that it is clearly within Congressional power to create a strict liability offense which dispenses with any element of intent. United States v. Dotterweich (1943), 320 U.S. 277, 64 S.Ct. [333]*333134, 88 L.Ed. 48. Further, the failure to require mens rea, standing alone, does not violate due process. United States v. Greenbaum (C.A.3, 1943), 138 F.2d 437.

Looking to Ohio’s statutory history, the Ohio General Assembly unanimously passed the Ohio RICO Act in 1985. 141 Appendices and General Index to the Journals of the Senate and House of Representatives (1985) 236. There is little legislative history regarding the enactment. Senator Eugene Watts, the statute’s Senate sponsor, described the Ohio RICO Act as “the toughest and most comprehensive [RICO] Act in the nation” and “state-of-the-art legislation.” 57 Ohio Report No. 117, Gongwer News Serv. (June 18, 1985) 3. These comments indicate an intent to impose the greatest level of accountability, ie., strict liability.

Offenses under RICO, R.C. 2923.32, are mala prohibita, ie., the acts are made unlawful for the good of the public welfare regardless of the state of mind. Thus, we agree with the Twelfth District’s reasoning in State v. Haddix (1994), 93 Ohio App.3d 470, 638 N.E.2d 1096, which stated, “Whether a defendant knowingly, recklessly or otherwise engages in a pattern of corrupt activity, the effect of his activities on the local and national economy is the same. Requiring the finding of a specific culpable mental state for a RICO violation obstructs the purpose of the statute * * Id. at 477, 638 N.E.2d at 1101. Given these goals, we believe that the General Assembly intended to enhance the government’s ability to quell organized crime by imposing strict liability for such acts.

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State v. Schlosser, 681 N.E.2d 911, 79 Ohio St. 3d 329, 1997 Ohio LEXIS 1994 (Ohio 1997).

681 N.E.2d 911 (State v. Schlosser) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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