What RICO prohibits
The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, makes four things unlawful when they involve an enterprise affecting interstate or foreign commerce:
- Investing racketeering income. Using or investing income from a pattern of racketeering activity in an enterprise.
- Acquiring control. Gaining or keeping an interest in or control of an enterprise through racketeering activity.
- Conducting the enterprise. Taking part, directly or indirectly, in the conduct of an enterprise’s affairs through a pattern of racketeering activity. Most criminal RICO cases are charged this way.
- Conspiracy. Agreeing to violate any of the other three provisions.
RICO turns charges like fraud or bribery into a case about an enterprise.
The building blocks: enterprise, racketeering and pattern
An enterprise under 18 U.S.C. § 1961 includes any individual, partnership, corporation, association or other legal entity, and any group of people associated in fact even if they are not a legal entity. A business, a public office or an informal group can qualify.
Racketeering activity covers certain state crimes punishable by more than a year, including murder, kidnapping, gambling, arson, robbery, bribery, extortion and drug dealing, and a long list of federal offenses such as mail fraud, wire fraud, bank fraud, money laundering, obstruction of justice and witness tampering.
A pattern requires at least two acts of racketeering activity, with the last occurring within ten years of a prior act, not counting time in prison.
RICO penalties and forfeiture
| Charge | What it covers | Maximum prison term |
|---|---|---|
| RICO, 18 U.S.C. § 1962(a), (b) or (c) | Investing in, acquiring or conducting an enterprise through a pattern of racketeering activity | 20 years, or life if based on racketeering activity that carries life |
| RICO conspiracy, 18 U.S.C. § 1962(d) | Agreeing to violate the RICO statute | 20 years, or life if based on racketeering activity that carries life |
| Criminal forfeiture, 18 U.S.C. § 1963(a) | Interests acquired through the violation, interests in the enterprise and property derived from racketeering proceeds | Imposed in addition to any prison term |
Instead of the standard fine, a person who profited may be fined up to twice the gross profits or other proceeds. Forfeiture can reach business interests and other property, so it should be addressed early.
How RICO cases are approved and built
Under the Justice Manual, a federal prosecutor cannot file a RICO indictment or information without prior approval from the Criminal Division in Washington, based on a written prosecution memorandum. The Manual states a policy that RICO be used selectively and uniformly.
- InvestigationAgents gather records, recordings and cooperating witness accounts, often over years.
- Department reviewProsecutors seek Criminal Division approval before charging RICO.
- IndictmentA grand jury returns charges, often against many defendants at once.
- Discovery and motionsThe defense reviews the evidence and challenges the charges where the law allows.
- Plea or trialEach defendant resolves the case by agreement or goes to trial.
Where these cases are often defended
Every case turns on its own facts. Issues that frequently matter include:
- The enterprise. Whether the group the government describes actually existed as an enterprise.
- The pattern. Whether the alleged acts qualify as racketeering activity and form a pattern.
- The person’s role. Whether the person took part in conducting the enterprise’s affairs, or was on the edges of it.
- The predicate acts. Whether each underlying fraud, bribery or other crime can be proven.
- Forfeiture. Whether property the government seeks is actually connected to the alleged violation.
How Kaufman Legal Group can help
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985 and spent decades on the CJA panel in the Southern and Middle Districts of Florida, and Victor E. Rocha, who was admitted to The Florida Bar in 1983, practices in federal courts including the Eleventh Circuit and the Southern District of Florida, and speaks Spanish. Together they bring more than 100 years of combined experience.
RICO cases involve large volumes of evidence and several defendants. The team focuses on the client’s actual role, contests forfeiture where the facts support it and prepares the case to be tried. The first consultation is free and confidential.