What are Racketeering Charges?  Organized Crime, Gangs and Cartels, and Overcharging RICO

Most people think of movies like “The Untouchables” or “the Godfather” when asked about “racketeering” charges and arrests on R.I.C.O. violations.  Makes sense; RICO was designed to combat “organized crime” in this country, and as a general rule that has meant the Mafia.  The Cosa Nostra was its original target.

RICO Act: Racketeering Charges Expand Over Time

Back in 1970, Congress passed the Organized Crime Control Act of 1970, with a section (Title IX) of that Act becoming known as “RICO” statutes.  Formally, these are the “Racketeer Influenced and Corrupt Organizations” laws found in  18 U.S.C. §§ 1961-1968.

When the OCCA was passed, its aim was to control Organized Crime in the United States.  Legislative history explained the intent as getting rid of criminal organizations that had infiltrated legitimated organizations doing business across state lines (i.e., the Mafia and its crime families.)

Thing is, over time the Act, and specifically its RICO statutes, have been read by prosecutors and interpreted by courts to apply much more broadly than to Mafia family activities.  Today, RICO charges can be filed pretty much anytime a federal prosecutor thinks he or she has found illegal activities in any enterprise connected to or impacting commerce across state lines or across international borders.

See, e.g., Novotny, David J. “Title IX of the Organized Crime Control Act of 1970: An Analysis of Issues Arising in Its Interpretation.” DePaul L. Rev. 27 (1977): 89.

Crimes under RICO

There is a list of 35 actions that are defined as crimes under RICO (18 USC 1861).  These are racketeering in its various forms as long as they are committed as part of the “enterprise” – which is the operation of the criminal organization.

They include:

• Arson;
• Bankruptcy fraud;
• Bribery;
• Counterfeiting;
• Criminal copyright infringement;
• Dealing drugs (controlled substances or chemicals outlawed under the Controlled Substances Act);
• Drug trafficking;
• Embezzlement;
• Embezzlement of union funds;
• Extortion;
• Fraud;
• Gambling;
• Human Trafficking Illegally bringing aliens into the country for profit );
• Kidnapping;
• Mail fraud;
• Money laundering;
• Murder;
• Murder for Hire (Hit man; commission of murder-for-hire);
• Obstruction of justice;
• Dealing pornography (Dealing in obscene matter);
• Robbery;
• Securities fraud;
• Slavery;
• Terrorism;
• Theft;
• Wire fraud.

If the accused is proven to have committed at least two of these activities within the past ten years, then he or she can face RICO charges.  (They are called “predicate offenses” because (1) they have to have happened (2) within the time limit before there can be a RICO charge.)

The prosecutor has to show these acts as being connected for the nefarious criminal enterprise.  The prosecutor must do this in one of four ways as defined under the law.

Those who are found guilty of violating RICO can face up to 20 years imprisonment for each count.  So, if you are a member of an active crime family and you face lots of RICO charges, it’s possible for these counts to add up fast – and have you facing spending the rest of your life behind bars.

RICO is a powerful tool for prosecutors, which is why they like to use it whenever they can.   

Example of RICO Indictment: May 2017 Lucchese Family Arrests

For instance, this spring federal prosecutors announced their indictment of nineteen (19) people alleged to be member of the famed New York Lucchese Crime Family.  The Luccheses are known as being one of the “Five Families” of the Cosa Nostra.

If you have seen the film “Goodfellas,” then you’ve heard about the Lucchese Family.  (The others include the Genovese Family; the Gambino Family; the Colombo Family; and the Bonanno Family.)

Read the complaint, and you get a feel for the intent of the RICO statutes.  First, the federal prosecutors name those accused of committing crimes, with defendants including

• Steven Crea, Sr., aka “Wonder Boy,”
• John Castelucci aka “Big John,”
• Joseph Datello aka “Big Joe,” aka “Joey Glasses,”
• Paul Cassano aka “Paulie Roast Beef,” and
• Carmine Garcia aka “Spanish Carmine.”

Then, you read the charges (counts) made against these men.  They include the following “predicate offenses” for a RICO action involving an “organized criminal enterprise known as La Cosa Nostra”:

• Murder, “including but not limited to the murder of Michael Meldish on or about November 15, 2013;”
• Importation and Distribution of Controlled Substances, “including but not limited to cocaine, heroin, oxycodone and similar prescription opiates….”
• Money Laundering “…series of financial transactions designed to further the unlawful activities of the Enterprise ….”
• Gambling a “…unlawful betting on sporting events and the operation of unlawful “joker poker” type gambling machines ….”
• Robbery, “committed acts of robbery with the aim of enriching themselves and other members and associates of the Enterprise….”

Here is the full text of the indictment with all the details, saved in the Michael Lowe Digital Library as the Matthew Madonna Et Al Indictment :

What’s A Criminal Enterprise for RICO Charges These Days?

RICO cannot be charged against any individual unless there is a connection between that person and some sort of criminal enterprise.

Years ago, that meant connecting the accused to a Mafia crime family or maybe a notorious gang, like the Hell’s Angels.   Today, it can mean a connection with a Mexican Drug Cartel, or a national corporation doing business in several states that looks to be legit.   Even police officers have been indicted on RICO charges.

And sometimes, this means that individuals get caught up in zealous prosecutions where RICO is charged in ways that legislators arguably never intended.  See, e.g., the February 2017 HuffPo op-ed piece by Heidi Boghosian and Zachary Wolfe entitled “Prosecutors Overreach in RICO Gang Arrests.”

Overcharging RICO: Defending Against RICO Charges

Prosecutors are using RICO to charge young men (and women) and get harsh sentences by loosely tying them to gang affiliations, among other things.  Reaching very far away from the type of allegations you can read about in the Lucchese Family Indictment.

It is up to their criminal defense team to fight against the application of RICO to these individuals, who may be totally innocent.  Or if they have committed some criminal offenses, have not done so with the approval and involvement of a “criminal enterprise” intertwined in the manner of a Mafia family or criminal organization which was the clear focus of the RICO statutes when they were passed.

Prosecutors will overcharge.  This happens.  See, e.g., Graham, Kyle. “Overcharging.” (2013).

The defense must fight back, using evidentiary challenges as well as legal arguments to shield the accused from the excessiveness.

RICO is beloved by prosecutors – but it is used in indictments much too freely.  And those being investigated, arrested, or charged need to be aware of this reality. 

_____________________________________

For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”