Decisions in Criminal and Civil RICO Cases - U.S. Tenth Circuit
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Decisions in Criminal and Civil RICO Cases

Today, the Tenth Circuit decided one civil RICO matter and one criminal sentencing case.

Bixler v. Foster, No. 09-2138, involved an action by minority shareholders of a corporation against its directors and lawyers, alleging that defendants violated the civil Racketeer Influenced and Corrupt Organizations Act (RICO), when they arranged to transfer the company's assets to an Australian corporation.  The district court dismissed the complaint.

As the Tenth Circuit wrote:  "The minority shareholders contend the defendants defrauded them of their share of the UKL stock and rendered their METCO investment virtually worthless. . . . Plaintiffs claim defendants conspired to deprive them of the value of their
METCO shares by a series of predicate acts based on the above-described
conduct, in violation of RICO."

The Tenth Circuit affirmed, holding that (1) plaintiffs lacked standing under RICO to assert shareholder derivative claims; (2) allegations of securities fraud did not establish predicate acts under RICO; and (3) the "continuity" requirement of RICO was not satisfied by the allegations in the complaint.

US v. Corber, No. 09-3006, involved a crack cocaine prosecution in which the district court dismissed defendant's motion to reduce his sentence under 18 U.S.C. section 3582(c)(2).

The Tenth Circuit affirmed on the ground that, for purposes of a sentence modification under section 3582(c)(2), the "applicable guideline range" and the range upon which a sentence was "based" was, as a matter of law, the range produced under the guidelines' sentencing table after a correct determination of the defendant's total offense level and criminal history category but prior to any discretionary variances.

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