Judge turns down 'financial gain' argument raised by defense attorneys in gang racketeering case

Judge turns down 'financial gain' argument raised by defense attorneys in gang racketeering case

January 15th, 2019 by Zack Peterson in Local Regional News

A Chattanooga judge's order Monday helped prosecutors clear a hurdle in their gang racketeering case against 55 alleged members of the Athens Park Bloods. But up next are more challenging legal issues that could dismiss a handful of people from the prosecution.

Prosecutors don't have to prove defendants made money from each crime they allegedly committed on behalf of the street gang, per a 17-page ruling from Hamilton County Criminal Court Judge Tom Greenholtz. That's a position state attorneys have taken since March 2018, when Hamilton County District Attorney General Neal Pinkston brought this first-of-its-kind prosecution.

But some defense attorneys countered that a state law making racketeering prosecutions possible required prosecutors to do the opposite: Prove that individuals made money from each crime. Partly because prosecutors did not include explicit proof of that in their indictment, defense attorneys asked Greenholtz to dismiss the case and declare the law unconstitutional. The defense attorneys also argued the Tennessee Legislature understood that limitation based on a failed 2013 bill that would've changed the "financial gain" language.

After reviewing the full legislative history of the roughly 30-year-old racketeering law, Greenholtz shot those arguments down. The judge said legislators discussed numerous topics that could've killed the bill, including a high fiscal note for projected incarceration costs. He ultimately decided legislators edited the law over the years, including a 2012 amendment to add gangs, but did not intend for the financial-gain argument to apply to individual crimes.

"Read in conjunction with the legislature's full intention in applying the [racketeering law] to criminal gangs, it seems clear that the 2012 amendments reflect a legislative assumption that financial gain is the raison d'etre of criminal gangs," Greenholtz wrote. "Even when financial gain is not the immediate motive for the commission of an individual criminal gang offense, financial gain may be the effect on the ongoing existence and operations of the criminal gang as a [racketeering group]."

Greenholtz next has to rule on another issue on which prosecutors and defense attorneys differ. If he rules in the defense's favor, it could dismiss some people from the case.

The vast majority of defendants in this case committed prior crimes that are also defined as "gang offenses" under Tennessee law. Because the state says these crimes show a "pattern of racketeering enterprise," prosecutors have charged all 55 people with one count of racketeering activity and one count of racketeering conspiracy on behalf of the street gang. The consequences are severe: These are Class B felonies with a 12-year-minimum punishment and no probation. About a dozen others also face murder or helping set up murder charges in a handful of previously unsolved homicides, most notably the 2016 slaying of state's witness Bianca Horton.

But defense attorneys say the law calls on prosecutors to prove a few things for these racketeering charges: First, each person must have two prior crimes. Second, those crimes must occur within two years of each other. Prosecutors didn't fulfill those requirements for a handful of defendants, attorneys say.

In a Nov. 30 motion, for instance, defense attorney Michael Holloway said prosecutors included only one prior crime for his client and therefore didn't prove a pattern of racketeering. The prosecution has not yet responded to that " two prior crimes" argument. But in response to other defense motions raising similar issues, prosecutors said they don't need two years within each crime for each individual; they are instead relying on all of the gang's activity taken together, which easily fulfills the time requirement.

If that's true, some defense attorneys say, then prosecutors have to fall back on everyone being a gang member to connect the dots between all of the crimes. And if they do that, they could run afoul of a 2016 appeals court decision that says prosecutors can't enhance a gang member's sentence solely because they're a gang member.

Pinkston didn't use that sentencing enhancement statute and didn't fight the appeals court's opinion. At the time, he said gangs should be prosecuted as businesses, which he can do under state racketeering laws that haven't been struck down or declared unconstitutional.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.