OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
This matter is before the Court on the motion to dismiss (DE 1410) count one of the superseding indictment filed by defendant Douglas C. Adams. For the following reasons, the motion will be denied.
The defendants are charged with various violations of federal law, all of which are related to their alleged participation in a vote-buying and vote-stealing scheme in Clay County, Kentucky that lasted from 2002 to 2007 and encompassed three election cycles - 2002, 2004, and 2006. There are now five defendants in this matter scheduled for trial: Adams, Freddy W. Thompson, Charles Wayne Jones, Russell Cletus Maricle, and William E. Stivers.
Trial is scheduled to begin November 4, 2013. This will be the second trial of these defendants. Their first trial occurred before U.S. District Judge Danny Reeves. After seven weeks, the jury found all of the defendants guilty of all counts. The Sixth Circuit vacated the defendants' convictions finding that that the cumulative effect of various errors during the trial warranted a new trial. United States v. Adams, et al., 722 F.3d 788 (6th Cir. 2013). Judge Reeves recused from the matter and reassigned it to the undersigned. (DE 1311.)
Following is a summary of the charges against each defendant:
Count Number Defendants Charged Charge Count 1 Maricle, Adams, Jones, Stivers, Conspiracy to violate RICO Thompson under 18 U.S.C. § 1962(d) Count 2 Maricle and Stivers Instructing a grand jury witness to testify falsely in violation of 18 U.S.C. § 1503 Count 3 Thompson Giving false grand jury testimony in violation of 18 U.S.C. § 1503 Count 4 Maricle, Jones, Stivers, and Conspiracy to oppress voting Thompson rights of citizens under 18 U.S.C. § 241 Count 5 Maricle, Jones, Stivers, and Conspiracy to buy votes in Thompson violation of 18 U.S.C. § 371 and 42 U.S.C. § 1973i
In count one of the superseding indictment, all five defendants are charged with conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO") under 18 U.S.C § 1962(d). After the defendant filed this motion, the grand jury issued a superseding indictment (DE 1530) that made no material changes to the RICO charge. Accordingly, the Court interprets the defendant's motion to be directed at the RICO charge contained in count one of the most recent superseding indictment.
RICO regulates enterprises "engaged in, or the activities of which affect, interstate or foreign commerce." 18 U.S.C. § 1962(c). The indictment alleges that the RICO enterprise in this action consisted of "the Defendants and their associates." The indictment further alleges that the enterprise was "engaged in" and that its activities "affected interstate commerce" as required under RICO.
With his motion, Adams argues that the indictment is fatally deficient because it does not allege that the activities of the RICO enterprise had a substantial effect on interstate commerce as required for federal jurisdiction.
The statute does not define precisely how much effect the individual enterprise's activities must have on interstate commerce. The Sixth Circuit has ruled that the answer to that question depends on whether the RICO enterprise engaged in "economic activity." If the enterprise did engage in such activity, then the jury need only find that its individual activities had a de minimus effect on interstate commerce in order to subject it to RICO regulation. Waucaush v. United States, 380 F.3d 251, 255 (6th Cir. 2004) (discussing United States v. Riddle, 249 F.3d 529 (6th Cir. 2001)). But, where the enterprise does not engage in economic activity, the government must show that the individual enterprise's activities had a substantial effect on interstate commerce in order for it to be regulated by RICO. Id. at 257-58.
An indictment containing a RICO charge is not required to allege that the enterprise's activities had a substantial or de minimis effect on interstate commerce. The Sixth Circuit holds the following with regard to the requirements of an indictment:
To pass constitutional muster, an indictment must meet a two-prong test: first, the indictment must set out all of the elements of the charged offense and must give notice to the defendant of the charges he faces; second, the indictment must be sufficiently specific to enable the defendant to plead double jeopardy in ...