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

 

What Constitutes “Enterprise” Under the UPUAA?

In order to sustain a conviction under the UPUAA, the State must prove 1) the defendant is engaged in a pattern of unlawful activity and 2) the defendant is involved in an enterprise.

Decorative Scales Of Justice In The CourtroomIn order to sustain a conviction under the UPUAA, the State must prove 1) the defendant is engaged in a pattern of unlawful activity and 2) the defendant is involved in an enterprise. Often times the pattern of unlawful activity is easily proven, but proving the existence of an “enterprise” can be more challenging for the State. The UPUAA comprehensively defines “enterprise” as:

[A]ny 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.

Thus, an “enterprise” for purposes of the UPUAA can be anything from an individual to a group of individuals to a corporation or association, whether legal or illegal. Even still, the question of what constitutes an entity under the various sections of the UPUAA isn’t as easily answered.

In 1988, the Utah Supreme Court, while the issue was not squarely before it, implicitly ruled that the same set of facts could be used to prove the pattern of unlawful activity as well as used to prove the existence of an enterprise. In State v. McGrath, the court rejected the defendant’s argument that there was insufficient evidence to prove the existence of an enterprise under the RICE Act, the predecessor to the UPUAA. In so ruling, the evidence relied on by the court to find a pattern of unlawful activity and the existence of an enterprise was the same, the defendant’s cocaine trafficking. According to the court’s opinion:

These facts show an ongoing enterprise the purpose of which was to traffic in controlled substances. Defendant’s participation in this enterprise, when combined with his acts constituting a pattern of racketeering activity, establishes the necessary elements to convict….

Almost ten years later in 1997, in State v. Hutchings, the Utah Court of Appeals clarified the supreme court’s previous statements in McGrath. In Hutchings, the court of appeals was squarely tasked with answering the question of whether a UPUAA defendant can also constitute a UPUAA enterprise under section 76-10-1603(1), (2), or (3). The court began by examining U.S. Supreme Court and federal circuit court precedent on the issue, which generally found that “the same set of facts used to prove a pattern of racketeering activity may be used to prove a RICO enterprise.” The court then turned to Utah law, which it determined had already “implicitly ruled [in McGrath] that the same set of facts used to prove the pattern of unlawful activity can be used to prove the existence of an enterprise.” As such, the court of appeals agreed with the majority of federal courts and the Utah Supreme Court’s previous implicit holding in McGrath and found that the same set of facts could be used to prove a pattern of unlawful activity and an enterprise.

The court of appeals next turned to the various provisions of the UPUAA to determine whether the whether the “person” under section 76-10-1603(1), (2), or (3) can be the same entity as the “enterprise.” The court held that, for purposes of section 76-10-1603(1), “the liable ‘person’ and the ‘enterprise’ can be the same entity,” under section 76-10-1603(1), as long as the “person” is “actually… the direct beneficiary of the pattern of racketeering activity.” Similarly, the court held that with respect to subsection (2) “the ‘person’ and ‘enterprise’ within section 76-10-1603(2) need not be separate and distinct.” However, the court wasn’t willing to extend the same reasoning to subsection (3). According to the court:

[We] hold that for the purposes of section 76-10-1603(3), the “person” and “enterprise” must be separate and distinct entities. We, too, would be stretching the interpretation of the language in section 76-10-1603(3) to impose liability on both the culpable person and the enterprise. “The enterprise is mentioned in the section only as the instrument of the person doing the racketeering, and there is no suggestion that the enterprise also may be liable, even if it is a wholly illegitimate operation.”

As a result, under Utah law in order to sustain a conviction under subsection (3), the State must prove the existence of an “enterprise” that is distinct from the defendant themselves. Furthermore, the court went on to examine whether the sole proprietorship at issue in this case could constitute an “enterprise” for purposes of subsection (3). The court of appeals determined that as it related to the sole proprietorship at issue in in this case, “the man and the proprietorship really are the same entity in law and fact.” As result the State had failed to pass the distinction test.

While the Utah Supreme Court has declined to require distinction between the individual and the entity under subsections (1) and (2), it does require the state to prove the existence of more than a one-man show under subsection (3). Defendants facing charges under the UPUAA need to be cognizant of this fact, and must take steps to ensure their counsel argues that point to the court, and that the jury is properly instructed on the issue at trial.