## Facts

- David S. Morris operated a skip-tracing business that located debtors for collection-agency clients, using debtor identifiers including Social Security numbers.
- The Illinois Department of Employment Security (IDES) maintained a confidential wage-report database containing employees’ names, Social Security numbers, employers, and wage information, with access restricted to authorized uses.
- Morris paid four IDES employees, including Brenda J. Cummings, to query the IDES database using their work access.
- Morris sent the employees lists of names and identifiers; the employees retrieved employment and wage information from IDES systems and provided it to Morris.
- Morris used and resold the information in his skip-tracing services and compensated the employees for each search or batch of information.

## Issues

1. Whether evidence supported convictions for RICO conspiracy under 18 U.S.C. § 1962(d) by proving an agreement to conduct or participate in an enterprise’s affairs through a pattern of racketeering activity, as measured by the Reves “operation or management” standard.
2. Whether the defendants’ sentences, imposed as undifferentiated aggregate terms with downward departures, required vacatur and remand in light of the reversal of one count and post-*Blakely*/*Booker* sentencing law.

## Decision

- The court reversed the defendants’ RICO conspiracy convictions under 18 U.S.C. § 1962(d).
- The court left intact the conspiracy conviction under 18 U.S.C. § 1029(a)(2) (unauthorized access device fraud conspiracy).
- The court vacated the sentences and remanded for resentencing on the remaining count because the district court imposed aggregate sentences not allocated by count and sentencing had to be redone after the RICO count was vacated, consistent with *Booker*’s advisory-guidelines framework.
- Because resentencing was required, the court did not finally resolve all challenges to the district court’s downward departures in the prior sentencing.

## Legal Principles

- RICO liability for “conduct[ing] or participat[ing]” in an enterprise’s affairs requires involvement in the enterprise’s “operation or management,” not merely providing services or engaging in repeated commercial dealings with enterprise participants.
- A RICO conspiracy conviction under § 1962(d) requires proof of an agreement to further a scheme that, if carried out, would satisfy the substantive enterprise-participation requirement; an agreement to commit related criminal acts alone is insufficient.
- Evidence is insufficient for RICO conspiracy where it shows a buyer–seller or service relationship among independent actors, without proof that defendants directed, controlled, or managed the affairs of the alleged enterprise as a continuing unit.
- When a multi-count sentence is imposed as an undifferentiated aggregate term and one count is later vacated, resentencing is required to impose a lawful sentence on the surviving count(s), applying current sentencing law.

## Conclusion

The Seventh Circuit held that an illicit information-selling arrangement between IDES employees, a private skip-tracing operator, and collection-agency customers did not establish an agreement to operate or manage a RICO enterprise, reversed the RICO conspiracy convictions, and vacated and remanded for resentencing on the remaining access-device fraud conspiracy count under the post-*Booker* sentencing regime.


United States v. Cummings, 395 F.3d 392 (7th Cir. 2005)