State v. Dixon

545 P.3d 1040

TATE of Kansas, Appellee,

v.Erik Nahshon DIXON, Appellant.

No. 125,992

Court of Appeals of Kansas.

Oral Argument Held March 5, 2024.

Opinion Filed March 29, 2024.

Appeal from Sedgwick District Court; Jeffrey E. Goering, judge.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, attorney general, for appellee.

Before Gardner, P.J., Malone, J., and Timothy G. Lahey, S.J.

Malone, J.:

Erik Nahshon Dixon began committing crimes with his street gang, the Insane Crips, as a juvenile, and he continued as he grew into adulthood. Eventually, the State charged Dixon with violating the Kansas Racketeer Influenced and Corrupt Organization (RICO) Act, K.S.A. 21-6327 et seq., due to his pattern of criminal activity, some of which was committed as a juvenile and some as an adult. A jury convicted Dixon as charged, and the district court sentenced him to 138 months’ imprisonment.

On appeal, Dixon raises statutory and constitutional arguments, including: (1) juvenile adjudications do not qualify as racketeering activities under the Kansas RICO statutes; (2) the State needed to charge him in juvenile court because his pattern of racketeering activities began when he was a juvenile; (3) the Double Jeopardy Clause prohibits the use of prior adjudications and convictions to prove a RICO offense; (4) the predicate offenses that established his pattern of racketeering activity were lesser included crimes of the RICO offense; and (5) the compulsory joinder rule required the State to bring the Kansas RICO charge when it brought the predicate charges. Dixon also challenges the sufficiency of the evidence to support his conviction. This case raises issues of first impression in Kansas as no prior appellate court decision has addressed a defendant’s conviction under the Kansas RICO Act. For the reasons explained below, we reject Dixon’s claims and affirm the district court’s judgment.

Factual and Procedural Background

Dixon, born in 1996, became a documented member of the Insane Crips in 2012 after he was arrested with other gang members six times and then self-identified as a member of the gang. Dixon continued to be involved in criminal activity associated with the gang over the next several years. Dixon turned 18 in 2014.

By 2016, the Wichita Police Department’s gang unit began investigating Dixon and several others in connection with a series of gang related shootings that had occurred in the city. The investigation disclosed that Dixon’s house had been the target of two shootings earlier that year. In between those two shootings, Dixon and several of his fellow gang members were suspected of being involved in a retaliatory shooting of a rival gang member’s house. As part of the investigation, law enforcement obtained search warrants for Dixon’s Facebook account and phones. These searches provided law enforcement with information suggesting that Dixon was looking to find and retaliate against those responsible for the shootings at his house.

Within the Insane Crips organization, Dixon was considered by police to be at the top of the pecking order when it came to the business side of the enterprise, specifically, selling drugs. In November 2016, law enforcement executed a search warrant at Dixon’s apartment, finding many drugs, a ledger, firearms, and cash. Another search warrant, executed in April 2017, yielded more drugs, firearms, and cash. These discoveries led to a federal case against Dixon, in which he pled guilty to possession of a firearm in furtherance of a drug trafficking crime and was sentenced to 120 months’ incarceration.

In July 2019, the State charged Dixon and eight others with violating the Kansas RICO Act. The State alleged that Dixon, while a member of a criminal street gang, the Insane Crips, conducted or participated directly or indirectly in a pattern of racketeering activity. The State alleged that the pattern of activity included:

"Racketeering Activity A: Use of Guns

"1. Criminal Use of Weapons Pursuant to K.S.A 21-6301(a)(14)(b)(5)(A), adjudicated in the 18th Judicial District Court in 13JV1062 on 12/13/13;

"2. Criminal Use of Weapons Pursuant to K.S.A. 21-6301(a)(14)(b)(5)(A), adjudicated in the 18th Judicial District Court in 14JV248 on 5/22/14;

"Racketeering Activity B: Distribution of Drugs

"1. Possession of Marijuana pursuant to K.S.A. 21-5706, convicted in the 18th Judicial District Court in 14CR3189 on 1/7/15;

"2. Carrying a Concealed Weapon pursuant to K.S.A 21-6302, convicted in the 18th Judicial District Court in 14CR3189 on 1/7/15; (left in distribution of drugs since same case and had 9 individual bags of marijuana, scale and money and the gun[.]"

Relevant to this appeal, two of the predicate offenses included in "Racketeering Activity A: Use of Guns" were juvenile adjudications. In 2013, Dixon pled guilty to one count of criminal use of a weapon in violation of K.S.A. 21-6301(a)(14). In 2014, Dixon pled guilty to another count of criminal use of a weapon under the same statute.

Before trial, Dixon moved to dismiss the State’s case on several grounds. First, he claimed that the Double Jeopardy Clause required dismissal because he had already been prosecuted for the predicate offenses listed in the charging document. Second, he asserted that the case should be dismissed under the compulsory joinder rule, as he alleged that the State "had to bring the RICO charge" when it prosecuted the predicate offenses. Finally, Dixon claimed that the State should not be allowed to use the two juvenile adjudications as predicate offenses, noting that the State had not moved to prosecute him as an adult in the juvenile cases. The State filed a detailed response addressing each claim.

The district court denied the motion to dismiss in a ruling announced from the bench. As to double jeopardy, the district court ruled that there was no unitary conduct because the "pattern offenses all stem from events that occurred at different dates in different locations" and that there was no "same offense" at issue because there are different elements in the Kansas RICO crime when compared to the prior adjudications and convictions. As to the compulsory joinder claim, the district court found that the State could not have presented evidence of any Kansas RICO violation at the prior proceedings. And lastly, the district court found that the State properly brought the Kansas RICO charge in adult court because the RICO charge was a continuing crime and at least one of Dixon’s predicate offenses occurred when he was an adult.

Dixon’s case proceeded to a jury trial and he was tried alone. The State offered into evidence, without objection from Dixon, the journal entries from Dixon’s prior adjudications and convictions. The parties agreed that Dixon’s two adult convictions in 14CR3189 would count as one predicate offense and for that predicate offense the State would need to prove that Dixon carried a concealed weapon or possessed marijuana. The State presented testimony from many Kansas and federal law enforcement officers who had helped investigate Dixon and his gang as well as an informant from a rival gang. The State’s witnesses also testified to Dixon’s alleged involvement in several gang related shootings in Wichita and his arrests while in possession of guns and narcotics with fellow gang members. The crux of the State’s case centered on Dixon’s involvement as a member of the Insane Crips and his participation in both drug dealing and violent crimes for the gang. Dixon did not testify at trial and did not contest his membership in the Insane Crips. The theme of defense counsel’s closing argument was that the predicate offenses were isolated incidents unrelated to gang membership and did not meet the statutory definition of a pattern of racketeering activity.

The jury found Dixon guilty as charged. The district court sentenced him to 138 months’ imprisonment. Dixon timely appealed the district court’s judgment.

Overview of the Kansas RICO Act and Comparison to Federal Law

[1] The Kansas RICO Act is substantially similar to the federal Racketeer Influenced and Corrupt Organization (RICO) Act, 18 U.S.C. § 1961 et seq., both in its purpose and the specific conduct it proscribes. Anti-racketeering statutes target organized crime and the individuals who participate in criminal enterprises in a broad spectrum of illegal activities. They present tools for law enforcement to combat the negative effects of patterns of criminal activities conducted by criminal groups. In enacting the federal RICO Act, Congress stated: "It is the purpose of this Act to seek the eradication of organized crime … by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." Organized Crime Control Act of 1970, Statement of Findings and Purpose, 84 Stat. 922, reprinted in 1970 U.S. Code Cong. & Ad. News at 1073.

In 2013, the Kansas Legislature passed a similar antiracketeering statute, providing similar tools for Kansas law enforcement to combat organized crime. As explained in testimony presented to the Legislature when it considered enacting the Kansas RICO Act, the successful use of the federal RICO Act by the federal government was a motivating factor for the Kansas Act’s passage:

"[R]acketeering laws are based on the notion that with some criminal enterprises, the whole is greater than the sum of the parts—and, therefore, should be subject to greater penalties. A criminal street gang, for example, may commit numerous low-level crimes, but the pattern of criminal activity has a much greater negative effect on the community and on innocent residents than does any individual crime taken by itself. The federal government has successfully used the federal RICO st

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