Criminal Defense Lawyers

Defending Federal RICO Charges: An Overview for Defendants

The Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO, is a federal law that was originally designed to combat organized crime. Since being enacted in 1970, however, RICO has expanded far beyond its original purpose and is now frequently used by federal prosecutors in cases involving a wide range of criminal activity.For defendants, a RICO charge can be intimidating. RICO cases are often large, complex, and come with severe penalties. Successfully defending against RICO charges requires extensive experience with federal criminal law. This article provides an overview of RICO charges and strategies for defending against them.

What is RICO?

RICO makes it illegal to participate or invest in an “enterprise” through a “pattern of racketeering activity.” This requires prosecutors to prove five key elements:

• Enterprise – The existence of an enterprise, defined broadly as any individual, partnership, corporation, association, or other entity.
• Interstate Commerce – The enterprise engaged in or affected interstate commerce.
• Association – The defendant was associated with or employed by the enterprise.
• Pattern of Racketeering – The defendant engaged in at least two predicate acts of racketeering within 10 years of each other. Racketeering activities include a long list of state and federal crimes.
• Participation – The defendant participated in the enterprise through the pattern of racketeering activity.

Why do prosecutors use RICO?

RICO provides several key advantages for prosecutors:

• Allows charging multiple defendants who participated in the criminal enterprise, from leaders down to low-level associates.
• Broadens scope of criminal activity by linking together seemingly unrelated crimes committed over many years.
• Stiffer penalties – up to 20 years per racketeering count.
• Forfeiture provisions allow seizing assets connected to criminal activity.
• Lowers burden of proof by not requiring defendants to have direct knowledge of all aspects of the conspiracy.

Challenging a RICO Charge

While RICO may seem daunting, there are strategies criminal defense attorneys use to challenge RICO charges, including:

Dispute Enterprise or Interstate Commerce

These elements are usually easy for prosecutors to prove. But it’s worth verifying they have sufficient evidence. Look for weaknesses in proof of enterprise structure, hierarchy, organization, decision-making. Question if activities truly impacted interstate commerce.

Challenge Association

Argue the defendant was not actually associated with the enterprise, but had only insignificant, sporadic, or coerced interactions.

Attack Pattern of Racketeering

Argue the alleged predicate acts do not constitute racketeering activities under RICO. Dispute if they are sufficiently connected to each other and the enterprise to form a true pattern.

Dispute Participation

Mere association with an enterprise is not enough. The defendant must have knowingly and actively participated in the pattern of racketeering. Argue the defendant did not sufficiently participate.

Attack Credibility of Cooperators

Many RICO cases rely heavily on cooperating witnesses who testify in exchange for leniency. Vigorously challenge their credibility and motives for testifying.

Suppress Evidence

RICO cases often involve searches, wiretaps, and other investigative techniques. File suppression motions to exclude illegally obtained evidence.

Argue Lack of Criminal Intent

Prosecutors must prove the defendant knowingly agreed to participate in criminal activity. Argue the defendant did not have this criminal knowledge or intent.

Sentencing Considerations

If convicted under RICO, sentencing considerations include:

• Racketeering counts carry up to 20 years imprisonment. Fines and restitution may also be imposed.
• Sentences for the racketeering counts and underlying predicate offenses may run consecutively.
• Sentencing guidelines provide a framework, but judges have discretion. Argue for downward departures.
• Forfeiture provisions are expansive. Challenge forfeitures not sufficiently connected to criminal activity.
• Cooperating witnesses typically receive significant sentencing reductions. Consider cooperation as a strategy.

Conclusion

Facing RICO charges is undoubtedly serious, but not an automatic conviction. Skilled criminal defense attorneys have strategies to challenge the complex elements of RICO and hold prosecutors to their burden of proof. With an in-depth understanding of RICO law and a vigorous defense, it is possible to successfully defend against federal racketeering charges.

Information Corner

Useful Resources

• RICO Act Explained (Video)
• When the Feds Come Knocking: Defending RICO Cases
• Top 10 Ways to Beat a RICO Charge

Example RICO Cases

• US v. Anthony Salerno (Mafia Commission Trial)
• US v. John Gotti (Gambino Crime Family boss)
• US v. Fat Tony Salerno (Genovese Crime Family boss)
• US v. Jeffrey Skilling (Enron CEO)