UPUAA charges against ‘Titanic Crip Society’ find probable cause

An Ogden judge this week ruled that six criminal cases targeting alleged members of a small northern Utah gang can move forward to trial.  The six men were charged in June of 2016 with engaging in a pattern of unlawful activity under the Utah Pattern of Unlawful Activity Act (“UPUAA”), as well as other charges including assault, aggravated assault, and aggravated robbery.  The UPUAA charges are similar to charges under the UPUAA’s federal counterpart, the Racketeer Influenced and Corrupt Organizations Act, better known as RICO.

UPUAA charges against gang ruled to be supported by probable cause

This fall, Second District Judge Ernie Jones on Tuesday ruled there was enough evidence for the case to move forward against the six men: Tamer Ahmed Hebeishy, 33, Sharif Ahmed Hebeishy, 36, Sadat Ahmed Hebeishy, 35, Daniel Ray Lopez, 26, Brock Adam Pickett, 29, and Jaron Michael Sadler, 22.  All defendants have pled innocence and a trial has been set for January of 2018.

The defense attorneys representing these men have argued that their clients were no longer gang members, or that their crimes were not committed to appease gang leaders.  They also attacked the credibility of witnesses who described the gang’s structure and denied that the gang was an “enterprise under the UPUAA statute.  Section 76-10-1602 of the Utah Code describes the term “enterprise” and “pattern of unlawful activity as follows:

(1) “Enterprise” means any individual, sole proprietorship, partnership, corporation, business
trust, association, or other legal entity, and any union or group of individuals associated in fact
although not a legal entity, and includes illicit as well as licit entities.
(2) “Pattern of unlawful activity” means engaging in conduct which constitutes the commission of
at least three episodes of unlawful activity, which episodes are not isolated, but have the same
or similar purposes, results, participants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics. Taken together, the episodes shall demonstrate
continuing unlawful conduct and be related either to each other or to the enterprise.

According to a recent article in the Salt Lake Tribune, the Titanic Crip Society has had a presence in northern Utah since the 1990s, and that their membership has fluctuated between 10 and 20 members.  Weber County prosecutors have said that they hope the new UPUAA charges will help to curb activities of the gang.  If convicted of all charges, the men would face five-to-life prison sentences.

Deputy Weber County Attorney Branden Miles spoke of the charges against six members of the Titanic Crip Society last year: “We believe a targeted prosecution of their leadership has the potential to disrupt their activities and terminate their existence as a criminal street gang.”  Miles also said that the new UPUAA charges represent “a new approach” for Weber County prosecutors in response to gang crime.

UPUAA charges are the first racketeering case against gang leaders in Utah

The charges against the six men represent the first such charges targeted at a street gang as a whole since the Utah Supreme Court dissolved a city-wide gang injunction in Ogden against the main rivals of the Titanic Crip Society, the Ogden Trece, in 2013.

According to the charging documents, the six men charged were Titanic Crip Society leaders, which the gang refers to as “Big Homies.”  As “Big Homies,” the gang’s leaders are removed from the day-to-day criminal activity of the gang that is carried out by younger members (“Little Homies”) on the directions of the leaders.  Prosecutors have said that the three Hebeishy brothers charged under the UPUAA are most likely the longest-standing members of the Titanic Crip Society, and that, because of the way the gang is structured, the leaders “are able to observe/portray a ‘gangster’ lifestyle while not fully exposing themselves to the risks of criminal charges.”  However, that has all changed with the new charges filed by the Weber County District Attorney’s Office.

Currently, all six of the men charged under the UPUAA are behind bars, most serving time at the Utah State Prison for other crimes.  The Tribune has reported that “Sharif and Tamer Hebeishy are in prison for drug crimes, while Sadler is serving a prison sentence for obstructing justice, unlawful sexual activity with a minor and attempted assault of a police officer.  Lopez is in prison for discharging a firearm, and Pickett is serving a sentence for attempted assault of a prisoner and aggravated assault.  Sadat Hebeishy is the only named defendant who is currently being held at the Weber County Jail.”

UPUAA charges are the result of a 2015 investigation

The UPUAA charges are the result of an investigation initiated in 2015 by the Ogden-Metro Gang Unit and Weber-Morgan Narcotics Strike Force, with help from the local FBI Violent Crimes Task Force.  The investigation began after law enforcement noticed a “troubling increase” in crimes being committed by the members of the Titanic Crip Society.  The investigation involved the use of confidential informants, wiretapped telephones and otherwise, to sustain the charges under the UPUAA.

FBI Salt Lake City Supervisory Special Agent John Barrett has said of the investigation: “Those involved in this case spent countless investigative hours, assets and expertise in an effort to combat a problem that poses a significant threat to our communities.  Violent gangs plague our streets with drugs, violence and other criminal activity and the FBI remains dedicated to disrupt and dismantle such groups.”

A “New Approach” to Gang Violence

While prosecutors have said they would not rule out bringing back the gang injunction abrogated by the Utah Supreme Court in 2013, they’ve said they intend to focus on the Titanic Crip Society leaders under the new UPUAA charges for now.  “With the Supreme Court’s guidance, we know how to properly serve a gang,”  Deputy Weber County Attorney Branden Miles said.  “We have just been focused on the gang that has recently given us the most significant criminal activity.”

Miles also noted that the new UPUAA charges against the six men are the first such charges targeting gang leaders for racketeering, although Miles did say that there had been several federal RICO cases filed against local gang leaders.  The most recent of those federal RICO cases targeted the Tongan Crip Gang in 2010, which sent many of them to federal prison, and left one Tongan Crip Member dead after he was shot by a federal marshal at the federal courthouse in Salt Lake City.  The other three previous cases, one in 2006, one in 2003, and one in 2002 saw 15 members of the Tiny Oriental Posse, as well members of the Soldiers of Aryan Culture and members of the King Mafia Disciples all charged under RICO.

Penalties accompanying UPUAA charges

Under the UPUAA, “any person who violates any provision of [the UPUAA] is guilty of a second-degree felony,” which carries a potential penalty of one to 15 years in prison and up to a $5,000 fine.  In addition to the aforementioned punishments, a person convicted under the UPUAA may be ordered to pay the state, if the case was brought by the attorney general, or to the county, if the county attorney or district attorney brought case, “the costs of investigating and prosecuting the offense and the costs of securing the forfeitures provided for” by the statute.  In lieu of any fine otherwise authorized by law, a defendant may not be fined more than twice the amount of the net proceeds the defendant received from his or her unlawful activity.  A court may also: 1) order restitution; 2) order the person to divest him or herself of any interest or control in any enterprise (as defined by the statute); 3) impose reasonable restrictions on the future activities of the person; and 4) order dissolution or reorganization of any enterprise.

UPUAA charges vs. gang injunction?

Aside from the punishments that the six men will face, the change in tactics by the Weber County Attorney’s Office is what is most noteworthy about this case.  Stymied by the Utah Supreme Court’s decision to overturn the Ogden Trece gang injunction, Weber County prosecutors have turned to the state version of RICO for the first time to do their bidding.  If successful, other gangs and/or their leaders may be targeted through state UPUAA prosecutions, adding to the strong authority already wielded by federal prosecutors under RICO.  However, if unsuccessful, prosecutors have already intimated that they may try to renew the formerly overruled gang injunction, which may accomplish the same objective as the UPUAA prosecutions, but with an injunction comes the threat that a Utah court will again find the injunction unconstitutional.  Until then, prosecutors will watch intently over the proceedings in the Titanic Crip Society case.

* Photo Cred.: sltrib.com

Copyright 2017


The unauthorized practice of law: woman posing as lawyer sentenced to jail and banned from legal profession

lawyer2n-2-webIn late December 2014, a woman was arrested in Summit County on allegations that she had been impersonating a Utah attorney and handling cases in court, representing actual clients under another attorney’s name.  The woman, identified as Karla Carbo, then 29 and residing in South Jordan, was arrested and booked into the Summit County Jail on suspicion of felony fraud, forgery and identity theft.

Carbo Held Self Out as an Attorney, Using Real Attorney’s Bar Information

Investigators said that Carbo had held herself out as an attorney in several jurisdictions, including impersonating an attorney at least times in the six months before her arrest.  Carbo was arrested within a week negotiating felony counts down to misdemeanors on behalf of her client in Summit County.  In fact it was that exact plea deal that garnered the attention of the Utah Bar Association.  The Bar told police that Carbo had been using a legitimate attorney’s name and bar number to represent clients without a license.

Police said that Carbo had represented to the courts that her name was Karla Stirling Fierro, but that the bar number Carbo gave as her own actually belonged to Utah attorney Karla Stirling.  In an interview, Stirling said, “It’s been shocking to hear that there’s been somebody else whose doing this with my name and my bar number.  I mean, who would take it that far to full-on impersonate someone and use a legitimate bar number?”

Stirling Was Completely Unaware Carbo Was Posing as Her

Stirling said that she found out about Carbo’s impersonation of her when she was contacted by the Draper City Justice Court about a pending hearing.  Stirling told the court she had no idea what they were talking about, and that she did not even practice criminal law.  “I said, ‘I don’t know what this is. There must be some mistake.’ And they went back and checked and said, ‘Oh no, this is no mistake,'” Stirling said.

“I don’t do any criminal work. I’ve never done any criminal work or immigration or personal injury. I’ve done business contracts, real estate,” Stirling said.  “I have not done any litigation matters in Utah.  There shouldn’t be any court files with my name or my bar number in Utah whatsoever.”

Soon after the court contacted Stirling, the Summit County Attorney’s Office got a call from the Utah State Bar telling them “that Fierro was not an attorney.”

Utah AG’s Office Takes Over Prosecution

In April 2015, the Utah Attorney General’s Office took over the prosecution of Carbo’s case.  That meant that Summit County prosecutor’s agreed to dismiss the charges pending against Carbo there, while new charges would be filed by the State in 3rd District Court.  The State charged Carbo with 12 felony counts, including one count each of second-degree felony engaging in a pattern of unlawful activity and identity fraud, along with five counts of second-degree felony communications fraud.  The charges also include five counts of third-degree felony forgery, court records show.

Carbo Pleads Guilty to Felony Counts, Including UPUAA Count

In July 2015, Carbo accepted a plea deal from State prosecutors, which required her to plead guilty to second-degree felony counts of pattern of unlawful activity, identity fraud, communication fraud, and one third-degree felony count of forgery.  In exchange for Carbo’s pleas, prosecutors dismissed eight other counts.  As part of the plea deal, Carbo agreed to pay more than $7,000 in restitution – money she earned as legal fees for her misrepresented services.  As it related to sentencing, prosecutors told Judge Keith Kelly at the plea hearing that they would be asking the court to impose a 90-day jail sentence with probation to follow that.

Carbo Sentenced to 62 Days in Jail, Ordered to Pay Restitution, and Banished From Legal Profession

At the sentencing hearing in September 2015, Judge Kelly sentenced Carbo to 62 days in jail.  Judge Kelly suspended potential prison terms of up to 15 years and, per a plea agreement negotiated by attorneys, ordered her to serve 90 days in jail, but gave her credit for 28 days already served.  Judge Kelly also imposed 36 months of probation, which required Carbo to complete 75 hours of community service, as well as obtain treatment to address theft issues.  Carbo was also ordered to pay approximately $7,274 in restitution to five clients wo paid for her fraudulent legal services.  Finally, Judge Kelly ordered that Carbo not engage in any legal-related employment.

Carbo’s attorney said of the sentence, “She understands she has harmed these people. She understands she has harmed the legal system.”  “She’s a hardworking mother and she just wants to put this behind her,” her attorney added.

Carbo Victims Offered “Do-Over”

As it relates to the plea deal Carbo negotiated just prior to her arrest, Summit County attorney Matthew Bates said, “This is a very serious matter because we know of at least one person out there now who has pled guilty to a crime without having a competent attorney.”  Further, Bates said that the judge in that case had sent a notice to the defendant telling him what had happened and scheduled a new court date, at which time the defendant will be allowed to be appointed a real attorney as well as withdraw his guilty plea if he wants to, and that Bates’ office would not object to a “do-over.”

“Legally, he has pretty solid grounds to withdraw his plea if he wanted to because the plea was essentially uncounseled and an uncounseled plea is a violation of the Constitution,” Bates said.

While, Carbo’s criminal matter may have been resolved, the Utah Pattern of Unlawful Activity Act (“UPUAA”) allows persons harmed by a pattern of unlawful activity to file a civil suit against the wrongdoer.  That portion of the UPUAA allows a person injured through a pattern of unlawful activity to recover “twice the damages” he or she “sustains,” as well as “the costs of suit, including reasonable attorney fees” if they prevail.  A civil action under the UPUAA must be commenced “within three years after the conduct prohibited by Section 76-10-1603 terminates or the cause of action accrues, whichever is later.”

Contact Our UPUAA Team Today

To date it does not appear that any of Carbo’s victims have filed suit against her under the civil prong of the UPUAA, but they still have time.  If you or someone you know has been a victim of a pattern of unlawful activity, do not hesitate to call our UPUAA attorney team for a consultation.  Conversely, if you have been arrested and charged with a violation of the UPUAA, which is a second-degree felony, please contact our UPUAA attorneys for a consultation as well.  Our UPUAA attorneys can be reached by telephone at (801) 323-5000 or by email at Karra.Porter@chisjen.com.

* Photo Cred.: nydailynews.com

Ex-Utah County Commissioner charged with communications fraud and engaging in a pattern of unlawful activity after he allegedly posed as LDS Church leader

1661897Former Utah County Commissioner Gary Jay Anderson and businessman Alan McKee have been charged with three counts of communications fraud and one count of engaging in a pattern of unlawful activity for allegedly posing as LDS Church leaders in an attempt to defraud a construction company out of $1.2 million.

All four charges filed against Mr. Anderson and Mr. McKee in 3rd District Court by the Utah Attorney General’s Office are second-degree felonies, which carry the potential penalties of one to 15 years in prison.

Anderson and McKee Posed as LDS Church Officials From 2011 to 2015

According to an article from the Salt Lake Tribune, investigators wrote in the charging documents that Mr. Anderson and Mr. McKee impersonated LDS Church officials from 2011 to 2015 in order to attract investors to what the pair said was a plan to establish a rail line and an industrial park on LDS Church land in Elberta, Utah.

Apparently, employees of the LDS Church’s land management corporation have acknowledged that they discussed a potential rail service with Mr. McKee, but that the proposal stalled in 2013 after Mr. McKee failed to follow through.  Mr. McKee had been introduced to the Church’s officials by several Utah County commissioners, including Mr. Anderson.

McKee and Anderson Defraud Ames Construction

During the same time Mr. McKee was in talks with the LDS Church, he was also corresponding with Ames Construction.  According to investigators, Mr. McKee sent Ames letters on LDS Church letterhead, which purported to be from people connected to the Church and its land management corporation.  The letters allegedly discussed the industrial park and showed support for Mr. McKee’s involvement in the project, even going so far as to praise Mr. McKee’s earlier work on the project.

As part of the correspondence with Ames was a 2013 email from a Yahoo account that Mr. McKee claimed belonged to “Eric Peling,” who supposedly worked for the Church’s land management company.  The email apologized that the substance of the communication was not on official letterhead, but that the LDS Church was “making financial payouts” in connection to the rail line and set meetings to finalize a $4 million payout from the Church to Ames Construction and Mr. McKee.

Ames’ regional vice president, Mark Brennan, met with Mr. McKee and someone who identified himself as “Mr. Peling,” but LDS Church officials later said there is no church employee by that name, investigators claimed.

While Mr. McKee was trying to garner Ames participation in the rail line and industrial park, Mr. McKee was also speaking with Mr. Brennan about a personal business deal to purchase the LDS Church’s surplus farm equipment at a discount.  Mr. McKee claimed to be a “preferred buyer” for the Church’s equipment and said he could act as a go-between for Mr. Brennan and the Church.  Mr. Brennan paid Mr. McKee $110,000 for the equipment, but it was never delivered.

Throughout the negotiations with Mr. McKee, Mr. Brennan received numerous phone calls from a man identifying himself as “Stevenson,” which continually reassured Mr. Brennan that the Church was committed to the pending rail line project and the equipment deal.  However, after listening to two of the recorded conversations between Mr. Brennan and “Stevenson,” investigators determined that the voice of the caller was actually Mr. Anderson.

Anderson and McKee Defraud McKee’s Friend and Fellow Churchgoer

In addition to defrauding Ames, investigators claim that Mr. McKee also defrauded a fellow churchgoer out of $750,000 after Mr. McKee claimed to be a “preferred buyer” of foreclosed farm and construction equipment.  However, the business that Mr. McKee said he could buy the equipment from never existed.  Even still, someone claiming to be the president of the company called Mr. McKee’s friend and sent him numerous text messages regarding the purchase of the equipment.  Again, investigators determined that the purported president was in fact Mr. Anderson.

Investigators seized the cellphones of Mr. McKee and Mr. Anderson and found text messages between them, coordinating communications with the alleged victims.  Mr. Anderson at times told the victims he was Mr. McKee’s attorney; he later told investigators he was not Mr. McKee’s attorney, but received $10,000 per month from Mr. McKee for “consulting” services.

Investigators reviewed Mr. McKee and Mr. Anderson’s finances and found several transactions between them.  They found that Mr. McKee was shifting money around his accounts and accounts to his business, Ophir Minerals and Aggregate, LLC.  The company was named by the Utah County Commission as “business of the year” in 2011, while Mr.  Anderson was serving on the Utah County Commission.

LDS Church Releases Statement on Charges

LDS Church spokesman Eric Hawkins released a prepared statement Monday regarding the charges.

“Two individuals have been charged with fraud for claiming to be or represent (former) Bishop Gary E. Stevenson during their business dealings.  Elder Stevenson was serving as the presiding bishop of the church at that time.  He does not know these individuals, has never spoken with them, and was completely unaware of their activities,” Hawkins said in the statement.  “The church alerted authorities as soon as it learned of the matter, and Elder Stevenson has provided a statement to prosecutors confirming he was not involved in this brazen scheme, which attempted to misuse the good name of the church and the office of the presiding bishop,” Hawkins said.

* Photo cred.: deseretnews.com

Putting a Defendant on Adequate Notice Under the UPUAA

The Utah Supreme Court has previously explained that Article I, section 12 requires “that the accused be given sufficient information ‘so that he [or she] can know the particulars of the alleged wrongful conduct and can adequately prepare his [or her] defense.'”

UPUAA NoticeUnder Article I, section 12 of the Utah Constitution, “In criminal prosecutions the accused shall have the right … to demand the nature and cause of the accusation against him [and] to have a copy thereof.” The Utah Supreme Court has previously explained that Article I, section 12 requires “that the accused be given sufficient information ‘so that he [or she] can know the particulars of the alleged wrongful conduct and can adequately prepare his [or her] defense.'” The requirements of Article I, section 12 naturally extend to UPUAA charges, and defendants charged under the UPUAA must be given sufficient notice of the charges against them.

In State v. Bell, the Utah Supreme Court determined that the State had failed to give Mr. Bell sufficient notice of the particulars of the RICE (the UPUAA’s predecessor) charges against him. The first question facing the court was “whether the indictment was itself detailed enough to give Bell sufficient notice of the charges.” To this the court responded:

The indictment merely repeated verbatim the broad, vague language of the RICE statute without describing any facts or circumstances constituting the crime charged other than a statement that the crime had been committed during a ten-month period. This indictment met the minimal standards 105*105 of rule 4(b) … but by no stretch of the imagination did it provide Bell with sufficient notice of the facts underlying the charges to enable him to prepare an adequate defense.

The next question was whether Mr. Bell had “exercised his right to seek more particular notice by requesting a bill of particulars under rule 4(e) and , this preserved his claim for error. There the court determined:

Bell did submit a timely request that the State provide a bill of particulars describing the factual basis for the element of racketeering activity and specifically explaining “what enterprise is alleged as being involved.” Therefore, under rule 4(e), the State had the burden of providing an adequate bill of particulars.

Finally, the court was left to answer whether the State had met its burden, and if the State had not whether trial court’s failure to enforce the notice requirement was prejudicial. The court started by addressing the State’s conduct, finding that the State had not met its burden:

Although Bell persistently objected to the inadequacy of the bill of particulars, the State refused to amend or supplement the bill as it would have been permitted to do under rule 4(e). The State failed to meet the burden of notice imposed on it by rule 4(e), and the trial court’s failure to enforce this requirement was clearly error under the plain language of rule 4(e), as well as the standards described in Fulton.

Satisfied that the State had not met its burden and that it was error for the trial to court not to enforce the notice requirement upon the State, the court turned to the question of whether the trial court’s error was harmless or prejudicial. There the court determined:

Our review of the record leaves us unconvinced that Bell did in fact receive adequate notice through these convoluted means. None of the sources pointed to by the State explicitly laid out the three enterprise theories later presented at trial. Nor do we think that the three allegations are necessarily implicit in these sources of information, even when they are taken as a whole. Thus, the State has failed to meet its burden.

Also, we think it important to clarify that we reject the implication of the State’s argument: that the State, having failed to provide even a minimally adequate bill of particulars despite persistent requests from Bell, can excuse that failure under the guise of harmless error by claiming that Bell had pretrial access to a mass of various items of information from which, one can conclude in hindsight, Bell could have gleaned the State’s theories for the essential elements of the crimes charged. For this Court to accept such an argument would not only vitiate the specific requirements of rule 4(e), it would negate the accused’s constitutional right, implemented by rule 4(e), to “have a copy” of a document setting out in clear terms “the nature and cause of the accusation.”. A defendant, having complied with the procedural requirements of rule 4(e) in requesting a bill of particulars, ought not to have to look beyond the indictment or information and the bill of particulars to obtain sufficient notice of the specific allegations to be faced at trial.

The State has not met its Knight burden of persuading this Court that the failure to provide an adequate bill of particulars did not unfairly prejudice Bell’s ability to prepare and present a defense. Therefore, we reverse Bell’s conviction and remand for a new trial with instructions that Bell be given an adequate bill of particulars.

The court’s decision in Bell makes clear that a UPUAA defendant needs to be put on sufficient notice of the charges against him or her, and that the State may not just simply repeat the UPUAA verbatim in its charging documents. In addition to the notice requirements placed on the State, the UPUAA also requires civil plaintiffs to plead their claims with particularity. This means that civil plaintiffs must also give defendants sufficient notice of the claims against them, and may not rely on merely conclusory allegations of racketeering activity.

When are you Entitled to Attorney Fees Under the UPUAA?

Under the UPUAA, a successful civil plaintiff is entitled to recover double damages. In addition to the damages recovered, a successful plaintiff may also recover the costs of suit.

UPUAA Attorney FeesUnder the UPUAA, a successful civil plaintiff is entitled to recover double damages. In addition to the damages recovered, a successful plaintiff may also recover the costs of suit, including reasonable attorney fees. However, if a defendant prevails against a private party and the claim “is dismissed prior to trial or disposed of on summary judgment, or if it is determined at trial that there is no liability, the prevailing party shall recover from the party who brought the action or asserted the claim or counterclaim the amount of its reasonable expenses incurred because of the defense against the action, claim, or counterclaim, including a reasonable attorney’s fee.” Thus, any prevailing party in a civil UPUAA action is entitled not only to the costs of suit, but are also entitled to a reasonable attorney’s fee.

In Albright v. Attorneys Title Ins. Fund, the United States District Court for the District of Utah was faced with a motion for attorney’s fees made by a prevailing a defendant in a civil UPUAA case. Plaintiffs’ claim arose out of alleged racketeering conspiracy between the Florida Fund and Cohen Cox. Plaintiffs’ complaint contained eighteen different causes of action, including claims under RICO and the UPUAA. Defendants defended against Plaintiffs’ claims, and ultimately Plaintiffs’ entire case was dismissed on summary judgment.

Following the entry of summary judgment, defendants sought to recover attorneys’ fees and other expenses incurred in defending against the racketeering claims pursuant to the UPUAA. Defendants argued that while the federal RICO statute does not provide a means for a prevailing party to recover attorney fees, the court should still permit defendants to recover their entire attorney fees in this case under the UPUAA “because the state and federal racketeering claims were factually and legally related.” Plaintiffs responded by arguing that the court shouldn’t award any of the fees and costs requested by defendant because the federal RICO statute prevents an award to defendants in this case. According to plaintiffs, the federal statute only allows for recovery of attorneys’ fees by a prevailing plaintiff and not a defendant. Alternatively, plaintiffs argued that even if defendants were entitled to recover fees and expenses for prevailing on the UPUAA claims, the court should still deny their motions because defendants have failed to allocate between time and expenses spent on the UPUAA claims versus the other non-UPUAA claims.

The district court disagreed with the plaintiffs’ contentions, finding that “pursuant to Utah Code Ann. § 76-10-1605(8), Defendants are entitled to ‘recover from the party who brought the claim[s]’ their reasonable expenses and attorneys’ fees.” The court was not persuaded by the plaintiffs’ arguments that the federal RICO statute somehow precluded recovery of attorney fees by a defendant where a plaintiff asserted both state and federal racketeering claims. The district court wrote in its opinion that:

There is nothing on the face of the federal RICO statute that preempts state racketeering fee provisions. See 18 U.S.C. § 1964(c). And, although the federal statute expressly allows prevailing plaintiffs to recover attorneys’ fees, the statute is merely silent with regard to a prevailing defendant’s right to recover attorneys’ fees. Had Congress intended to preempt state law in this area, it certainly knew how, and would have done so explicitly. Moreover, as Defendants point out, courts that have been confronted with this very issue, including the Tenth Circuit Court of Appeals, have uniformly held that a defendant can recover fees and costs under a state racketeering statute even where the plaintiff asserted both state and federal racketeering claims.

After rejecting plaintiff’s arguments that defendants were not entitled to attorney fees, the court turned its attention to determining a reasonable attorneys’ fee under the circumstances of the case. However, this time the court accepted plaintiff’s arguments that defendants shouldn’t be entitled to recover their entire requested attorneys’ fees. As the court pointed out:

Having presided over this case for several years, and having a thorough knowledge of the manner in which this case was presented and ultimately resolved, the Court is of the opinion that it would be unreasonable to allow the Defendants to recover the overwhelming majority of their fees and expenses based on claims that played a somewhat minor role in the proceedings. However, the Court also recognizes that the Plaintiffs’ decision to include the state racketeering claims required the Defendants to conduct additional research, explore the different parameters of the state and federal statutes and address those differences in order to mount an appropriate defense.

As a result, defendants were precluded from recovering their entire fees. Even still the court concluded that defendants were still entitled to a reasonable fee under the UPUAA:

Accordingly, the Court is of the opinion that it is fair and equitable to award the Defendants twenty percent of the attorneys’ fees and expenses they have presented to the Court, which the Court has reviewed and has determined were reasonably incurred. The Court believes that awarding fees and expenses in this amount serves to honor the state statute, which provides for the recovery of fees and costs, while at the same time recognizing that the UPUAA claims in this case played a relatively minor role in comparison to the federal racketeering claims.

The court’s decision in Albright is significant for several reasons. First, the court’s decision gives teeth to the UPUAA’s provisions regarding attorney fees, allowing successful defendants to recover attorney fees the same as successful plaintiffs. Second, the court made clear that even if a plaintiff asserts federal RICO claims against a defendant, it makes no difference as to whether a successful defendant may recover attorney fees under the UPUAA. Finally, although the court ultimately awarded fees to the prevailing defendants, the court determined that defendants were not entitled to their entire fee request. Rather, defendants were only entitled to a reasonable attorneys’ fee, which in the court’s opinion was 20% of the entire fee requested.