United States v. Cain, 09-0707-cr (2d Cir. January 31, 2012) (Newman, Lynch, CJJ, Restani, JCIT)
This is a case, oddly enough, about trees. Appellant David Cain, Jr., proprietor of David’s Tree Service, assisted by his brother, Chris Cain, a cousin, Jamie Soha, and others, was trying to corner the tree service and logging market in northwestern New York State. To get there, they engaged in acts of violence, extortion and even arson, and were convicted of substantive and conspiracy RICO counts and of other, related crimes.
All convictions were affirmed except for Chris Cain’s on the RICO counts. The circuit found that the district court’s “pattern” instruction was erroneous and, as to Chris Cain, the error, although not flagged below, was plain.
The RICO statute requires proof of a “pattern of racketeering activity” – at least two acts, the last of which occurred within ten years after the commission of …