Federal Murder in Aid of Racketeering: RICO Violence.

The federal crime known as murder in aid of racketeering (or “VICAR murder”) is charged under 18 U.S.C. § 1959. This statute is commonly referred to as the federal “Violent Crimes in Aid of Racketeering” or “VICAR” statute.

At its basic level, in order to call a killing VICAR murder, prosecutors must show that:

• There is an enterprise that is engaged in racketeering activity;
• The defendant has committed, attempted to commit, or conspired to commit a qualifying violent crime; and,
• The defendant’s violent conduct satisfies the applicable federal or state definition of murder.

Under 18 U.S.C. § 1959, the qualifying offenses are murder, kidnapping, maiming, assault with a dangerous weapon, assault resulting in serious bodily injury, and threatening to commit a crime of violence against an individual, as well as specified attempts and conspiracies to commit those offenses in violation of state or federal law.

Crucially, however, this is just the baseline. In order to distinguish between any murder that occurs within the context of a racketeering organization and a “VICAR murder,” prosecutors must establish the statutory purpose or pecuniary-value connection. According to 18 U.S.C. § 1959(a), the government must show that the defendant committed the murder for the purpose of gaining entrance to, maintaining, or increasing his or her position in an enterprise engaged in racketeering activity, or as consideration for receiving or agreeing to receive something of pecuniary value from such an enterprise.

This creates a distinction between “VICAR murder” and what is often referred to as a “RICO predicate murder.”

A RICO predicate murder is a murder that merely serves as one of the two or more racketeering predicate acts that are required to support a charge for a RICO enterprise under 18 U.S.C. § 1962(c). In such a case, it is the status of the criminal as a “racketeer” who is the central focus.

With a VICAR murder, however, it is the nature of the crime that is at issue. VICAR murders specifically target violence that is intended to bolster the standing of the enterprise or advance its goals. Because of this, federal prosecutors will frequently attempt to pursue both RICO and VICAR charges in the same case, charging individuals with both RICO violations and VICAR offenses.

When Can Personal Violence Escape the Enterprise-Purpose Requirement?

The underlying violent crime at issue in VICAR cases can violate either state or federal law. This can be a crime such as a homicide or a rape; kidnapping or an assault; or torture or drug-related violence. If a murder, kidnapping, or other violent crime is prosecuted under federal law, the charge may carry a federal life or death penalty. If state law applies, the sentencing will be based on federal law.

Under the VICAR statute, violence that is the result of a personal dispute between the perpetrator and the victim may not be a VICAR crime. Of course, in those cases it still could be a RICO predicate crime. But, if the violence was not intended to support the racketeering enterprise, and it does not satisfy the other elements of the VICAR definition, it should not be considered as federal VICAR violence, which carries an enhanced penalties.

But, here is what a defense lawyer will carefully consider when defending against a VICAR charge: if the violence that occurred is so clearly connected to the enterprise in question, it will probably be deemed “enterprise-related violence” regardless of what the defendant’s motives were.

For example, if a drug trafficking syndicate is accused of sending its hitmen to kill a former member of the organization, then a jury is likely to infer that the killing is related to the advancement of the organization. But, conversely, the act of killing must be “violent” and the killing must carry with it the “intent” required under the VICAR definition. If a murder occurs suddenly, without a lot of intent, then this will give the defendant a chance to challenge the motive.

Under the VICAR statute, the listed offenses include murder, kidnapping, maiming, assault with a dangerous weapon, assault resulting in serious bodily injury, and threatening to commit a crime of violence; the statute separately specifies penalties for attempts or conspiracies to commit murder, kidnapping, maiming, or certain assaults. If these acts can be tied to racketeering enterprises, they are prosecuted under 18 U.S.C. § 1959 as VICAR offenses, which carry enhanced federal penalties.

“I am a straight shooter,” Todd Spodek says of his own practice. “I tell clients exactly where their case stands.”

Why Is a VICAR Murder Charge Not the Same as a RICO Predicate?

As established above, a RICO conviction under 18 U.S.C. § 1962(c) requires proof of a “pattern,” which means that at least two racketeering-related offenses occurred within a 10-year period. This pattern can be established by committing the offenses together, or in sequence, and each offense must be related to at least one other offense in the pattern.

In order for a defendant to be convicted of a substantive RICO offense under the statute’s prohibition on conducting an “enterprise’s affairs,” the federal government must establish the defendant’s participation in the conduct of the alleged criminal enterprise. This is where a good defense lawyer can raise the issue that simply being acquainted with members of a criminal syndicate or associated with the racketeering organization does not necessarily mean that the defendant contributed to the criminal enterprise in a way that warrants criminal charges.

Furthermore, RICO charges can involve a variety of related activities and offenses, and even though this includes murder as a predicate act of racketeering, prosecutors are not required to establish that the individual defendant at the center of a RICO case personally committed the murder. They instead have to prove that the defendant conducted or participated in the conduct of the enterprise’s affairs through a pattern of racketeering activity.

The VICAR statute is different. While RICO and VICAR offenses are closely related, and both address criminal conduct in related contexts, they impose different statutory requirements. This is why showing a murder as a RICO predicate does not itself prove the elements that trigger federal VICAR murder liability under Section 1959(a)(1), although the federal government will often try to convince a judge and jury of this inference.

Finally, the VICAR statute is different from the RICO statute because it does not impose any requirements regarding a “pattern” of racketeering activity. Instead, under the VICAR statute, federal charges rely on establishing a clear connection between a violent act or acts and the advancement of the criminal organization.

Because these two charges are different and target different elements, we advise clients who are being charged under both statutes not to assume that these charges are the same. And, while it does not cost the federal government extra to charge a criminal defendant for both a substantive RICO violation and VICAR violence, in many cases this presents good opportunities for defense lawyers to argue the case.

Which Defenses, Evidence, and Sentence Exposure Matter After a VICAR Charge?

If federal prosecutors successfully prove a federal VICAR murder charge under 18 U.S.C. § 1959(a)(1), the sentencing options are extremely severe. This federal crime carries life imprisonment or the death penalty. If sentenced to life, the defendant will serve the rest of their life in federal prison. If the death penalty is applied, the Attorney General shall release the person sentenced to death to the custody of a United States marshal, who shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed.

Given these potential life or death penalties, individuals who are charged with murder in aid of racketeering need to seek legal counsel from a defense attorney with significant experience on both sides of the system. A criminal defense lawyer with federal prosecutorial experience can help individuals who face a VICAR charge build comprehensive defenses that leverage a deep understanding of the unique aspects of these cases.

A defense attorney can use the evidence and the issues raised to challenge the federal government’s case at several different points.

The evidence used in VICAR murder cases is quite common. Due to the fact that many VICAR investigations rely on informants who are paid for their information, a defense lawyer will likely try to discredit any informant witnesses. This may be possible by pointing out any bias on the informant’s part, or by showing that the informant has a history of lying and mistake. If no informants are involved, proving a case of mistaken identification is a viable defense. If a federal indictment is based on the law enforcement evidence from illegal wiretaps, searches, or other illegal forms of surveillance, this is an a alternative defense that can lead to dismissal.

Because VICAR investigations are often handled at the same time as the larger RICO investigation, their indictment may not be swift. The RICO investigation may take months or years before any specific defendant is indicted.

Along with seeking to convict defendants with VICAR charges, federal prosecutors may also request pretrial restraints against properties that are subject to forfeiture. This means the defendant can potentially lose properties owned, like their home or vehicle, if the properties were involved in the enterprise’s racketeering activity.

This is where experienced federal criminal defense lawyer can make the most difference for their clients. From negotiating with the federal government during the investigation for any possible plea bargain, to challenging the legality of any federal search or arrest, and to challenging any criminal charge and evidence used against them at trial, defense lawyers work to protect their clients’ liberty and livelihoods.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.