State v. O'CONNELL

¶1(concurring), I concur in our mandate. However, I do so with some trepidation because the United States Supreme Court has clearly signalled that RICO's definition of "pattern of racketeering activity" may be void for vagueness. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 251 (1989) (Scalia, J., concurring). The definition of "pattern of racketeering activity" contained in sec. 946.82(3), Stats. (WOCCA), applies the same standard as RICO. See Brunswick Corp., Mercury Marine Div. v. E.A. Doyle Mfg. Co., 770 F. Supp. 1351, 1363 (E.D. Wis. 1991). See also State v. Judd, 147 Wis. 2d 398, 400-01, 433 N.W.2d 260, 261-62 (Ct. App. 1988).

¶2In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985), the Court gave lower courts the following four clues as to the meaning of the enigmatic term "pattern of racketeering activity" in RICO. First, the definition implies "that while two acts are necessary, they may not be sufficient." Sedima, 473 U.S. at 496 n.14. Second, "two isolated acts," "sporadic activity," and "proof of two acts of racketeering activity, without more" would not be enough to constitute a pattern. Id.Third, " [i] t is this factor of continuity plus relationship which combines to produce a pattern." Id.(emphasis in original). Finally, the Court directed lower courts' attention to 18 U.S.C. § 3575(e), which defined the term "pattern of conduct which was criminal," used in a different title of the same Act, and instructed that "[t]his language may be useful in interpreting other sections of the [RICO] Act." 473 U.S. at 496 n.14.1

¶3*621Justice Scalia points out in his concurrence in H.J. Inc. that the district courts and courts of appeals "promptly produced the widest and most persistent Circuit split on an issue of federal law in recent memory." 492 U.S. at 251. Justice Scalia stated that: "This [standard] seems to me about as helpful to the conduct of [the lower courts'] affairs as 'life is a fountain.'" Id. at 252. Justice Scalia concluded:

No constitutional challenge to this law has been raised in the present case, and so that issue is not before us. That the highest Court in the land has been unable to derive from this statute anything more than today's meager guidance bodes ill for the day when that challenge is presented.

¶4Id. at 255-56.

¶5That constitutional challenge to the clarity of "pattern of racketeering activity" has been raised in the present case. I do not believe that the fact that WOCCA requires three predicate acts rather than two can alter the constitutional result. See sec. 946.82(3), Stats.

¶6In a symposium on RICO, Robert D. Luskin, Vice-Chairman, RICO Committee, Criminal Justice Section of the American Bar Association, wrote an article titled Behold, The Day of Judgment: Is the RICO Pattern Requirement Void for Vagueness ?, 64 St. John's L. Rev. 779 (1990). He concluded: "It is difficult to escape the conclusion that the day of reckoning for vagueness challenges to RICO dawns." Id. at 796.

¶7However, in the foreword to the symposium, Professor G. Robert Blakey "debunked" Luskin's "myth" as follows:

*622At bottom,... the Luskin essay is unsatisfying .... Luskin conflates breadth, ambiguity, and vagueness. As such, he confuses that kind of uncertainty of application that stems from breadth of meaning caused by the use of broad terms, that kind of uncertainty of application that stems from multiplicity of meaning caused by ambiguity, and that kind of impossibility of application that stems from vagueness caused by the use of terms having no meaning at all. In fact, RICO is neither ambiguous nor vague; it is broad, and breadth raises a question of policy, not constitutionality.

¶8Debunking RICO's Myriad Myths, 64 St. John's L. Rev. 701, 718-19 (1990).

¶9The majority in H.J. Inc. concluded that a pattern of racketeering was established where there was "continuity plus relationship." The majority in H.J. Inc. did not reach the question whether RICO's "pattern" definition is void for vagueness. However, Justice Brennan stated that the definition of "pattern of racketeering activity" "places an outer limit on the concept of a pattern of racketeering activity that is broad indeed." 492 U.S. at 237. Thus, it appears possible that when a constitutional attack on RICO's pattern requirement reaches the U.S. Supreme Court, there may be more than the four concurring justices' votes to strike RICO's definition of "pattern of racketeering activity" for vagueness.2

¶10*623Justice Scalia may have intended to warn Congress that it should more precisely define "pattern of racketeering activity." Justice Brennan, speaking for the majority in H.J. Inc., said that: "RICO may be a poorly drafted statute; but rewriting it is a job for Congress, if it is so inclined, and not for this Court." 492 U.S. at 249. Thus, the majority in H.J. Inc. may likewise have intended to warn Congress that it had better redefine "pattern of racketeering activity." In another article in the St. John's RICO symposium, J. Nonna and M. Corrado, RICO Reform: "Weeding Out" Garden Variety Disputes Under the Racketeer Influenced and Corrupt Organizations Act, 64 St. John's L. Rev. 825, 843 (1990), the authors state that: "An amendment to RICO which codifies the relatedness and continuity requirements is necessary." In view of the serious danger that the U.S. Supreme Court will hold that RICO's definition of "pattern of racketeering activity" is void for vagueness, I suggest that the legislature may wish to consider an amendment to sec. 946.82(3), Stats., which will more precisely define "pattern of racketeering activity."