By Mike La Sorte, Professor Emeritus
"The FBI was looking for a witness. Who’d flip first? One day, I got a call from a guy who routed trucks. ‘Can we meet, somewhere outta the way?’ We met in the indoor parking garage at Queens Center Mall. "They scooped me off the street,’ he said. ‘They dragged me down to FBI headquarters, said I gave you a few tips’ [about some scores]. ‘What else did they say?’ ‘They didn’t want some punk willing to spill his guts behind closed doors. They need someone to take the stand [to testify in court]. They offered me the Witness Protection program. They said don’t worry about Big Lou [that is, Louis Ferrante, the narrator]. They’ll protect me and my family.’ I left the garage with a knot in my stomach. My jig was up….The indictment said that information from confidential informants demonstrated that [I] formulated the operational plans for a series of armed robberies and hijackings in Queens and Long Island." (Louis Ferrante, Unlocked. A Journey from Prison to Proust, 2008)
RICO, the federal racketeering statute, had become an indispensable tool of the criminal justice system. An acronym for "Racketeer-Influenced and Corrupt Organizations," RICO is one of the most controversial statutes in the federal criminal code.
RICO requires that the government prove that the defendant, through the commission of two or more acts constituting a pattern of racketeering activity, directly or indirectly invested or participated in an enterprise the activities of which affected interstate or foreign commerce.
Proof of RICO predicates could establish a pattern of racketeering activity. Predicate offenses can include state and federal crimes, among them bribery, murder and extortion.
The RICO statute had its origins in previous attempts to curtail organized crime’s infiltration into legitimate business. A broader purpose was directed at all forms of enterprise criminality.
The trial of the RICO indictment differs in no significant respect (save perhaps for the offering of evidence relating to a possible forfeiture verdict) from a trial of a hypothetical indictment charging on the predicate acts themselves.
In the 1960s, federal authorities wanted to take action to weaken organized crime by means other than prosecuting, convicting, and punishing individuals for discrete predicate crimes. The solution was RICO, a multi-faceted remedial statute whose criminal and civil provisions were aimed at convicting organized-crime members and eliminating their economic base.
The 1970 RICO statute created three new federal crimes, and a fourth that made criminal a conspiracy to violate any of the three. Under RICO it is a crime to invest the proceeds of racketeering activity or collection of an unlawful debt in an enterprise: any legal entity or an association in fact. As well, it is a crime to take an interest in any enterprise through a pattern of racketeering activity (that is, an organized illegal activity) or collection of an unlawful debt. And it is a crime to conduct or participate in the business of an enterprise through racketeering or collection of an unlawful debt.
To put it in simple terms, it is a federal crime to engage in a pattern of racketeering to buy into an enterprise with "dirty money," to use muscle for fraud to acquire an interest in an enterprise, or to use an enterprise as a means for engaging in racketeering schemes.
A pattern of racketeering could comprise as few as two of the thirty-four common state or federal crimes committed within a ten-year period. Also individuals could be convicted of both the predicate crime and conspiracy with a twenty-year maximum for each offense, and a life sentence if a murder is involved. Proof of RICO predicates could establish a pattern of racketeering activity.
Before RICO, evidence that defendants had been involved in crimes other than the specific ones they were charged with could not be introduced nor could it be alleged that the defendant was part of a criminal conspiracy. Under RICO, previous crimes could be cited to prove that the defendants were members of a racketeering organization, a mob. Accordingly, the FBI and federal prosecutors reorganized their operations to concentrate on the mob as an entity rather as simply a collection of individuals.
RICO was the inspiration of G. Robert Blakey, who began his government service, in 1960, as an attorney in the organized crime and racketeering section. In 1970, Blakey drafted the Organized Crime Control law, which included the RICO statute. The law was aimed at the Italian-American mafia (at that time officially defined as a "single invisible empire, analogous to a criminal corporation or cartel, indeed to a private government"), and also at white-collar crime and political corruption. The RICO statute contained provisions authorizing civil suits for damages and the freezing of defendants’ assets before trial.
At first, most law enforcement officers either did not understand RICO or were reluctant to consider using it. Some legal experts did not feel it could possibly be constitutional.
Ten years and many RICO seminars would pass before Blakey could persuade prosecutors to see beyond the complexities of RICO.
Before RICO, the usual federal sentence for gangsters was five years or so. Once RICO was in place, suddenly there were terms of multiple decades. If someone committing federal crimes, together with other tough guys, as part of an ongoing criminal enterprise, you got RICO. But RICO also comes with a five-year statute of limitations. The indictment must be handed down no more than five years after the last criminal act in the conspiracy was committed. Anything more than that and, as far as RICO was concerned, it never happened.
With such harsh sentences, convicted persons are more likely to turn state’s witnesses and inform on their former colleagues rather than suffer the indignities of a long prison term. As a result, the once immutable code of keeping your lips sealed and doing your time like a "wiseguy" has practically been rendered moot, thereby prying the mob open to the harsh glare of public inspection. What happens in the mob no long stays in the mob. The no-snitching rule has become a quaint historical artifact. Once the gates opened, a trickle has become a flood of informants and indictments.
RICO prosecutions have been directed at the operations of criminal enterprises themselves. Action is taken against the concept of "organized crime." In such cases, defendants are tried for engaging, with others, in a series of crimes having looser connections than have traditionally been permitted, even in conspiracy prosecutions. Albeit specific predicate acts must be proven, such prosecutions tend to focus not on the defendant’s particular anti-social acts, but on whether an examination of the defendant’s criminal career (and those of his associates) shows that he is a member of a criminal combine. The charges made include that a particular defendant engaged in not just one but several, often very loosely related, crimes as well as frequently presenting an equally ill-assorted set of charges against co-defendants.
An early demonstration of the effectiveness of RICO was shown in the so-named Pizza Connection trials of the 1980s in New York City. The defendants were charged with RICO conspiracy and managing a continuing criminal enterprise (in addition to drug and money-laundering infractions). The six-month trial ended with a jury finding all but one defendant guilty. Ten of the defendants were sentence to twenty or more years in prison; the others twelve to fifteen. (See, Shana Alexander, The Pizza Connection, 1988)
Since the 1980s, RICO has widened its scope and sharpened its tools against a growing variety of criminal groups. In a recent example, San Diego authorities using RICO for the first time indicted thirty-six alleged members of the Mexican-American mafia.
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