State v. Young

406 N.E.2d 499, 62 Ohio St. 2d 370, 16 Ohio Op. 3d 416, 1980 Ohio LEXIS 760

• Court: Ohio Supreme Court
• Decided: June 18, 1980
• Docket: Nos. 79-728 and 79-1124
• Status: Published

Opinions

Paul W. Brown, J.

In recent years the growing problem 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 Assembly 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 Fourteenth Amendment to the United States Constitution. It is well established that criminal statutes are void for vagueness 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 determining 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 Supreme 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. Rockford, 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 enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly 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.¹ R. C. 2923.04 provides that:

“(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 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 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.

“(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 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 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 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.”

The complexity of R. C. 2923.04 is readily apparent, and it is therefore necessary to analyze individually the various components of this statute to determine its constitutionality as a whole. For reasons stated hereinafter, it is our considered opinion that such an examination results in the inescapable conclusion that the statute is deficient in at least five respects and, thus, cannot pass constitutional muster.

While this court will attempt to construe the language of a statute in order to sustain its validity, “it must be recognized 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 criminal 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, unconstitutional,² aptly pointing out that:

“The scienter element in R. C. 2923.04 does little to 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 requirement 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 this 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 written. 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 conduct 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 a fundamental 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 syndicate. An individual involved in the legal activities of a group, unaware of and with no connection to the unlawful side of the organization, 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 manages 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 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 syndicate.³

The vague language of the statute, which subjects an individual 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 definition 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]) to a 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 encompass minor misdemeanors 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 Criminal Code proscribes offenses committed for financial gain. Additionally, it is also difficult in some instances to determine 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 normally be considered to be conduct engaged in by organized crime. Five persons who participate in a betting pool each time they attend a football game would fall within this definition of a criminal syndicate because their conduct constitutes a violation of R. C. 2915.04, governing public gaming. These 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 possible jail sentence 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 regardless of the nature and gravity of the underlying offense. In viewing this situation it is clear that the statute’s requirements are simply not sufficient to limit its application to established criminal operations.⁵

In addition, the General Assembly has delegated a great deal of discretion to prosecutors who may choose to treat these individuals as if they are engaging in organized crime or who may simply prosecute them for a minor misdemeanor, 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 situation to compare with the discretion given here, with two possible offenses on opposite ends of the penological spectrum, chargeable from the same conduct.

We note these shortcomings of R. C. 2923.04 not to question the wisdom of the legislation’s provisions, but to demonstrate 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 persons 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 magnitude. We are requiring significant precision in this context, 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 render 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 syndicate. One trying to ascertain whether his conduct is unlawful under this provision must guess at the meaning of the statute, contrary to the demands of due process of law.

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 a felony.⁷ 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 support a conviction for aiding and abetting. The statute, however, nowhere indicates the degree to which an individual’s conduct must tie him to a particular criminal venture.

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 syndicate 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 subsection (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 requirement appears intended to limit the statute’s reach to established criminal operations, but this provision apparently applies with equal force to a group which kidnaps an individual and detains him for several weeks or, indeed, 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 maximum 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 “continuing basis” this basic policy decision is impermissibly delegated 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 imposes 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 standard of guilt. The offense which the provision seeks to prohibit is not defined. Further, the creation of boundaries of the conduct sought to be prohibited by this subsection 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 exemplifies the vagueness that renders this statute unconstitutional.

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 activities [R. C. 2923.04(A) ] of five or more persons, collaborating 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 continuing 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 unconstitutional, 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 offenses 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 terminology 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.

Celebrezze, C. J., W. Brown and Sweeney, JJ., concur. Herbert, Locher and Holmes, JJ., dissent.

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.

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 subsequently 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.

3 As the United States Supreme Court has recognized in another context, “[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:

“ * * * [W] hile 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 withstand a vagueness challenge.” Amusement Devices Assn. v. Ohio, supra, at page 1051.

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 criminal activity in this state. ‘Organized criminal activity’ means any combination or conspiracy to engage 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 statutory 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 application. 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.

6 See Comment, The Disparate Sentencing Provision of Ohio’s Organized Crime Statute, 46 Univ. of Cinn. L. Rev. 583.

7 See, Note, The Proposed Federal Penal Code, 47 N.Y.U. L. Rev. 320, 341.