Each Defendant "United States of America CRIMINAL LAW
"RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS," 18 U.S.C.
§§ 1961-68 void, fraudulent, has no remedy on behalf of Slave Plaintiffs" the 13th
Amendment ending "Slavery" "RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS," 18 U.S.C.
§§ 1961-68 was not in-place, activite, or having any legal merit, within the defendant "United States of America et al on behalf of said "sLAVE pLAINTIFFS" until "SLAVERY ACTUALLY LEGALLY ENDING in "United States of America" upon the official ratified 13th Amendment ending said (USA) Slavery by defendant "Mississippi" on Feb 7th 2013 U.S. Docket No. 3:16-MC-00016
On appeal
before the “Fifth Circuit Court of Appeals
"Notice of Motion to Strike"
CRIMINAL LAW
"RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS," 18 U.S.C.
§§ 1961-68: BROADEST OF THE FEDERAL CRIMINAL STATUTES
JEFF ATKINSON*
I. INTRODUCTION
Title IX of the Organized Crime Control Act
of 1970, "Racketeer Influenced and Corrupt Organizations
(RICO),"' is the most sweeping criminal
statute ever passed by Congress.2 It incorporates
by reference twenty-four separate types of
federal crimes and eight types of state felonies.3
RICO prohibits "racketeering activities," which
are defined by the incorporated federal and state
crimes.4 RICO does not create a new type of
* Member, Illinois Bar; B.S., Northwestern University;
J.D. summa cun laude, DePaul University. Mr. Atkinson
is an attorney with the firm of Jenner & Block, Chicago.
1 18 U.S.C. §§ 1961-68 (1970).
2 Title IX is one of 12 substantive titles of the Organized
Crime Control Act of 1970. The purpose of the
act is to eliminate organized crime "by establishing new
penal prohibitions, and by providing enhanced sanctions
and new remedies to deal with the unlawful activities of
those engaged in organized crime." 84 Stat. 923. The
other titles are: Title I, Special Grand Jury, 18 U.S.C.
§§ 3331-34; Title II, General Immunity, id. at
§§ 6001-05; Title III, Recalcitrant Witnesses, 28 U.S.C.
§ 1826; Title IV, False Declarations, 18 U.S.C. § 1623;
Title V, Protected Facilities for Housing Government
Witnesses, id at § 3481; Title VI, Depositions, 18 U.S.C.
3503; Title VII, Litigation Concerning Sources of Evidence,
18 U.S.C. § 3504; Title VIII, Syndicated Gambling,
18 U.S.C. § 1511; Title X, Dangerous Special
Offender Sentencing, id. at §§ 3575-78; Title XI, Regulation
of Explosives, id. at §§ 841-48; Title XII, National
Commission on Individual Rights, id. at § 3331 note, 84
Stat. 960.
' For a list of the crimes, see the definition of "racketeering
activity," note 4 infra.
4 "Racketeering activity" is defined as:
(A) any act or threat involving murder, kidnaping,
gambling, arson, robbery, bribery, extortion,
or dealing in narcotic or other dangerous drugs,
which is chargeable under State law and punishable
by imprisonment or more than one year: (B) any
act which is indictable under any of the following
provisions of title 18, United States Code: Section
201 (relating to bribery), section 224 (relating to
sports bribery), sections 471, 472, and 473 (relating
to counterfeiting), section 659 (relating to theft from
interstate shipment) if the act indictable under section
659 is felonious, section 664 (relating to embezzlement
from pension and welfare funds), sections
891-894 (relating to extortionate credit transactions),
section 1084 (relating to the transmission of
gambling information), section 1341 (relating to
substantive crime since any acts which are punishable
under RICO also are punishable under existing
federal and state statutes. The statute instead
takes a variety of state and federal crimes and
declares that if a person commits two of these
offenses, the person is then guilty of "racketeering
activity" and is subject to severe penalties.
Often the penalties for a violation of RICO are
more severe than the penalties for the crimes which
constitute the definition of "racketeering activity."
The RICO penalties include fines of up to $25,000,
imprisonment for as long as twenty years and
forfeiture of interests acquired or maintained in
violation of RICO.' In addition, the statute promail
fraud), section 1343 (relating to wire fraud),
section 1503 (relating to obstruction of justice),
section 1510 (relating to obstruction of criminal
investigations), section 1511 (relating to the obstruction
of State or local law enforcement), section 1951
(relating to interference with commerce, robbery,
or extortion), section 1952 (relating to racketeering),
section 1953 (relating to interstate transportation
of wagering paraphernalia), section 1954 (relating
to unlawful welfare fund payments), section 1955
(relating to the prohibition of illegal gambling businesses),
sections 2314 and 2315 (relating to interstate
transportation of stolen property), sections 2421-24
(relating to white slave traffic); (C) any act which
is indictable under title 29, United States Code,
section 186 (dealing with restrictions on payments
and loans to labor organizations) or section 501(c)
(relating to embezzlement from union funds), or
(D) any offense involving bankruptcy fraud, fraud
in the sale of securities, or the felonious manufacture,
importation, receiving, concealment, buying,
selling, or otherwise dealing in narcotic or other
dangerous drugs, punishable under any law of the
United States....
18 U.S.C. § 1961(1) (1970).
' (a) Whoever violates any provision of section
1962 of this chapter shall be fined not more than
S25,000 or imprisoned not more than twenty years,
or both, and shall forfeit to the United States (I)
any interest he has acquired or maintained in violation
of section 1962, and (2) any interest in, security
of, claim against, or property or contractual right
of any kind affording a source of influence over,
any enterprise which he has established, operated,
controlled, conducted, or participated in the conduct
of, in violation of section "1962.
18 U.S.C. § 1963(a) (1970).
JEFF A TKINSON
vides broad civil remedies, modeled after the antitrust
laws. Although prosecutors maintain they
only will indict a person under RICO for major
crimes,7 minor offenses also fall within the scope
of the law. For example, the manufacture or delivery
of ten grams of marijuana, the taking by threat
of property valued at less than $150, or the holding
of a poker party where money is gambled in one's
own home are all chargeable under RICO.'
RICO separately lists four types of offenses involving
racketeering activity.9 In summary form,
the elements of the RICO offenses are:
6 See text accompanying notes 143-49 infra.
See text accompanying notes 131-32 infra.
'The section on "Criminal Penalties" will discuss how
these offenses meet the definition of "racketeering activity."
See text accompanying notes 127-30 infra.
9 18 U.S.C. § 1962 (1970) provides:
(a) It shall be unlawful for any person who has
received any income derived, directly or indirectly,
from a pattern of racketeering activity or through
collection of an unlawful debt in which such person
has participated as a principal within the meaning
of section 2, title 18, United States Code, to use or
invest, directly or indirectly, any part of such income,
or the proceeds of such income, in acquisition
of any interest in, or the establishment or operation
of, any enterprise which is engaged in, or the activities
of which affect, interstate or foreign commerce.
A purchase of securities on the open market for
purposes of investment, and without the intention
of controlling or participating in the control of the
issuer, or of assisting another to do so, shall not be
unlawful under this subsection if the securities of
the issuer held by the purchaser, the members of
his immediate family, and his or their accomplices
in any pattern or racketeering activity or the collection
of an unlawful debt after such purchase do
not amount in the aggregate to one percent of the
outstanding securities of any one class, and do not
confer, either in law or in fact, the power to elect
one or more directors of the issuer.
(b) It shall be unlawful for any person through
a pattern of racketeering activity or through collection
of an unlawful debt to acquire or maintain,
directly or indirectly, any interest in or control of
any enterprise which is engaged in, or the activities
of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed
by or associated with any enterprise engaged in, or
the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection
of unlawful debt.
(d) It shall be unlawful for any person to conspire
to violate any of the provisions of subsections (a),
(b), or (c) of this section.
1. That a person"°
2. through a pattern"
3. of racketeering activity 12
collection of unlawful debt 3
4. directly or indirectly-
(a) invests in, or
(b) maintains an interest in, or
(c) participates in
5. an enterprise 4
6. the activities ofwhich affect interstate commerce.
All elements of a RICO offense, including the
two or more state or federal offenses which constitute
"racketeering activity," must be proved beyond
a reasonable doubt."5
The main purpose of RICO and the Organized
Crime Control Act was "to seek the eradication of
organized crime in the United States.""8 As will
"O"P erson" is defined as "any individual or entity
capable of holding a legal or beneficial interest in property."
Id. at § 1961(3).
" "Pattern of racketeering activity" is defined as "at
least two acts of racketeering activity, one of which
occurred after the effective date of this chapter and the
last of which occurred within ten years (excluding any
period of imprisonment) after the commission of a prior
act of racketeering activity." Id. at § 1961(5).
12 For definition of "racketeering activity," see note 4
supra.
i" "Collection of unlawful debt" is defined as:
[A] debt (A) incurred or contracted in gambling
activity which was in violation of the law of the
United States', a State or political subdivision
thereof, or which is unenforceable under State or
Federal law in whole or in part as to principal or
interest because of the laws relating to usury, and
(B) which was incurred in connection with the
business of gambling in violation of the law of the
United States, a State or political subdivision
thereof, or the business of lending money or a thing
of value at a rate usurious under State or Federal
law, where the usurious rate is at least twice the
enforceable rate....
18 U.S.C. at § 1961(6).
14 "Enterprise" is defined as "any individual, partnership,
corporation, association, or other legal entity, and
any union or group of individuals associated in fact
although not a legal entity." Id. at § 1961(4).
" No case has specifically held that all elements of a
criminal RICO offence must be proved beyond a reasonable
doubt, but since it is a criminal statute, that standard
of proof can be assumed. Cf United States v. Kaye, 556
F.2d 855, 860 (7th Cir. 1977) (quoting United States v.
White, 386 F. Supp. 882, 883-84 (E.D. Wis. 1974))
(holding that the interrelationship between predicate acts
of racketeering activity must be proved beyond a reasonable
doubt).
16 Statement of Findings and Purpose of the Organized
Crime Control Act, 84 Stat. 923.
[Vol. 69
RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
be shown, however, the statute applies to anyone
who commits the proscribed acts, regardless of
whether or not the individual is a member of
"organized crime." 7 Indeed, few of the cases specifically
indicate whether the defendants were
members of this difficult to define group.'8
The statute is exceptional in many respects. It
is unusual not only because of its sweeping nature,
its incursions into state law and its severe penalties,
but also because it attempts to alter a traditional
principle of statutory construction. This principle
is that penal statutes shall be subject to strict
interpretation, or, at very least, that their words
be given no more than their normal meaning. 9
"7 In selecting the offenses which make up the definition
of "racketeering activity," the drafters of the statute
tried to include all crimes which are commonly engaged
in by members of "organized crime." Telephone interview
with G. Robert Blakey, Chief Counsel to the Senate
Sub-Committee on Criminal Laws and Procedures
(Washington, D.C., July, 1976). Mr. Blakey is one of the
main drafters of the Organized Crime Control Act. Of
course, the crimes which make up the definition of "racketeering
activity" also are commonly committed by persons
who are not members of "organized crime."
I In three recent cases, the courts' comments on the
facts of the case imply possible involvement with organized
crime. United States v. Frumento, 563 F.2d 1083,
1090 n.14 (3d Cir. 1977) (involving cigarette bootlegging);
United States v. McLaurin, 557 F.2d 1064,
1067-68 (5th Cir. 1977) (involving a prostitution ring);
United States v. Brown, 555 F.2d 407, 413-14 (5th Cir.
1977) (involving gambling, prostitution and illicit whiskey).
'" "[T]his being a criminal statute, it must be strictly
construed, and any ambiguity resolved in favor of lenity."
United States v. Emmons, 410 U.S. 396, 411 (1973)
(holding the Hobbs Act does not reach the use of violence
to achieve legitimate union objectives such as higher
wages). See also United States v. Campos-Serrano, 404
U.S. 293, 297 (1971) (holding that possession of a counterfeit
alien registration receipt is not punishable under
a law which prohibits possession of documents required
for entry into the United States); Rewis v. United States,
401 U.S. 808, 812 (1971) (holding that conducting of a
gambling operation frequented by out-of-state bettors
does not, without more, constitute a violation of the
Travel Act); J. HALL, GENERAL PRINCIPLES OF CRIMINAL
LAw 38-41 (2d ed. 1947). In a district court decision
construing RICO in which it was held that a state
government was not an "enterprise" as defined by RICO,
the court said: "In the absence of clear Congressional
intent, courts traditionally should be reluctant to give a
broad construction to a criminal statute which would
transform matters primarily of local concern into federal
felonies." United States v. Mandel, 415 F. Supp. 997,
1021 (D. Md. 1976). Contra, U.S. v. Frumento, 46
U.S.L.W. 1042 (Sept. 20, 1977) (holding that a state
agency is an "enterprise" for the purposes of 18 U.S.C.
§ 1962(c)).
RICO, on the other hand, specifically provides
that "provisions of this title shall be liberally construed
to effectuate its remedial purpose."20 How
far this liberal construction can be stretched remains
to be seen. Regardless of the eventual application
of this clause, its language is an ominous
and imprecise way in which to draft a criminal
statute.
As of this writing between 100 and 200 cases
have been decided under RICO, and thirty-seven
have been reported. Several have been decided by
circuit courts of appeals, but none has been heard
by the Supreme Court. This article will discuss
the developing law under RICO and the issues
which remain to be resolved. I will argue that the
terms and history of RICO generally support its
broad construction, but if the statute is stretched
too far, it will exceed constitutional limitations.
The article will conclude with a recommendation
for a modification of the statute which will help
prevent unnecessary incursions into state power
and abusive application against individual defendants.
II. CONSTITUTIONALITY
RICO has been subject to four constitutional
challenges: vagueness, lack of authority under the
commerce clause, violation of the prohibition
against ex post facto laws, and violation of the
protection against double jeopardy. None of the
challenges has been sustained. A fifth possible constitutional
challenge-that the penalties, at least
in some circumstances, are violative of the eighth
20 Title IX § 904(a), 84 Stat. 947.
" Telephone interview with John Dowd, Attorney in
Charge of Department of Justice Strike Force 18 (Washington
D.C., Oct. 4, 1977) [hereinafter cited as Dowd
Interview]. Mr. Dowd's Task Force specializes in RICO
cases and he reviews all RICO indictments before they
are issued. Although RICO became effective- in 1970,
very few cases were brought under the act until 1975.
RICO was a complicated new statute with which prosecutors
were apparently unfamiliar. Beginning in 1975,
Mr. Dowd began a 20 month trip around the country,
lecturing to United States Attorneys and their assistants
on the use of RICO. Since then, indictments under RICO
have increased markedly. Id. The following is a list of
the number of RICO cases reported each year since
passage of the statute:
1970-0 1974 - 3
1971-0 1975 - 7
1972-1 1976 -10
1973-2 1977"-14
* As of December 12, 1977.
JEFF A TKINSON
amendment's proscription of cruel and unusual
punishments-will be considered in the section on
Criminal Penallies. 2
A. Vagueness
If one of the key elements of a RICO violation,
"pattern of racketeering activity," were left undefined,
the statute probably would be void for vagueness.'
s That, however, is not the case. "Racketeering
activity," as noted, is defined as any offense
chargeable under thirty-two separate types
of state and federal felonies,a2 and a "pattern of
racketeering activity" is defined as two acts of
racketeering activity which occurred within ten
years of each other.2s Thus, those terms have specific
definitions which place persons on notice as
to what conduct is prohibited. All courts which
have considered challenges on vagueness, including
four circuit courts of appeals, have upheld the
statute.
26
2 See notes 133-38 infra and accompanying text. Arguments
that RICO has been improperly used to circumvent
statutes of limitations are discussed in text accompanying
notes 44-58 infra.
' United States v. Campanale, 518 F.2d 352, 364 (9th
Cir. 1975), cert. denied sub nor., Grancich v. United States,
423 U.S. 1050 (1976).
The standard for unconstitutional vagueness is that a
penal statute "must be sufficiently explicit to inform
those who are subject to it what conduct will render
them liable to its penalties- and that if"'men of common
intelligence' must guess at the meaning of the statute,
the statute violates due process of law." Connally v.
General Construction Co., 269 U.S. 385, 391 (1926). See
also Palmer v. Euclid, 402 U.S. 544, 545 (1971).
24 For definition of "racketeering activity," see note 4
supra.
' For full definition of "pattern of racketeering activity,"
see note 11 supra.
26 United States v. Hawes, 529 F.2d 472, 479 (5th Cir.
1976) (holding that RICO gives adequate notice that
"enterprise" includes persons who participate in their
own organization); United States v. Campanale, 518
F.2d 352, 364 (9th Cir. 1975), cert. deniedsub nor., Grancich
v. United States, 423 U.S. 1050 (1976) (construing "pattern
of racketeering activity"); United States v. Cappetto,
502 F.2d 1351, 1357-58 (7th Cir. 1974), cert. denied, 420
U.S. 925 (1975) (construing § 1964); United States v.
Parness, 503 F.2d 430, 441-42 (2d Cir. 1974), cert. denied,
419 U.S. 1105 (1975) (construing § 1962): United States
v. Castellano, 416 F. Supp. 125, 128 (E.D.N.Y. 1975)
(holding that RICO gives adequate notice that "enterprise"
includes legitimate as well as illegitimate enterprises);
United States v. Scalzitti, 408 F. Supp. 1014,
1015-16 (W.D. Pa. 1975) (construing § 1962(c)); United
States v. White, 386 F. Supp. 883-84 (E.D. Wis. 1974)
(construing §§ 1961-62); United States v. Stofsky, 409
F. Supp. 609, 612-13 (S.D.N.Y. 1973), affrd, 527 F.2d
237 (2d Cir. 1975), cert. dented, 429 U.S. 819 (1976)
Although no decisions have found the statute
unconstitutionally vague on its face, RICO still
could be unconstitutionally applied in individual
instances. Three of the four types of RICO offenses
contain numerous disjunctives. This results in a
variety of combinations of conduct which are prohibited
by RICO. By selecting a certain combination
of "or's," the prohibited activity can be quite
specific and provide adequate notice. For example:
"It shall be unlawful for any person employed by
... any enterprise ... to conduct, directly ... such
enterprise's affairs. ... "" On the other hand, a
different combination of "or's" can result in a very
indefinite statement of prohibited activity:s2 "It
shall be unlawful for any person ... associated
with any enterprise ... to ... participate ... indirectly,
in the conduct of such enterprise's affairs.
. . . "I In the latter instance, "associated,"
"participate" and "indirectly" are left undefined.
A person reading the statute would have real doubt
in determining how closely he must be associated
with an enterprise before he would run afoul of
RICO. Such lack of notice could make the statute
unconstitutionally vague as applied. For example,
if a student buys ten grams of marijuana from a
stranger about whom he knows nothing, and that
stranger turns out to be a member of "organized
crime," does that mean the student can be indicted
under RICO because he has indirectly participated
in the affairs of organized crime? Similarly, if a
man is invited to the house of a friend of a friend
for a cash poker game, and some of the gamblers
are members of the "syndicate," does this make
the man a "racketeer" too?
Since RICO is a criminal statute with very severe
penalties, courts should impose an element of scienter.
Before being convicted of association with an
enterprise, the prosecution should have to prove
that the defendant was aware of the nature of the
enterprise with which he was associated.' It would
(construing § 1961(c) and stating: "This may be broad,
but it is not vague.").
27 18 U.S.C. § 1962(c) (1970).
' In United States v. Rubin, 559 F.2d 975, 990 (5th
Cir. 1977), the court said, "the language of § 1962(c) is
less than pellucid, and appellant's attempt to illumine
has appeal." The comment arose in a discussion of
whether the word "through" in the phrase "through a
pattern of racketeering activity" means "by means of."
The court found it unnecessary to resolve the issue.
29 18 U.S.C. § 1962(c) (1970).
' See United States v. Stofsky, 409 F. Supp. 609, 613
(S.D.N.Y. 1973), aff'd, 527 F.2d 237 (2d Cir. 1975), cert.
denied, 429 U.S. 819 (1976) (holding that a person who
violates RICO need not be acting in furtherance of the
[Vol. 69
RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
be unfair to convict persons when they have no
knowledge or notice of what they are involved in.
Prosecutors, however, will be able to circumvent
the problem and still charge such persons with a
RICO offense. This can be accomplished by redefining
the enterprise involved. Instead of charging
a defendant with association with a large organization,
such as "organized crime," the prosecutor
can allege that the individual defendant constituted
his own enterprise and engaged in smallscale
illegal activity, of which the defendant obviously
was aware."1 As will be discussed, the term
"enterprise" is defined very broadly. 2 "Enterprise"
includes not only traditional organizations such as
corporations and partnerships, but also "any individual
... or group of individuals associated in
fact although not a legal entity."' With such a
broad definition, prosecutors have great flexibility
in meeting the "enterprise" element of RICO.
Another vagueness problem arises in the criminal
forfeiture provisions of section 1963(a), which
provide that anyone who violates RICO shall:
[Fjorfeit to the United States (1) any interest he
has acquired or maintained in violation of section
1962, and (2) any interest in, ... or property or
contractual right of any kind affording a source of
influence over any enterprise which he has ...
participated in the conduct of, in violation of section
1962.-4
The scope of the interests or property rights to be
forfeited is not clear. It most likely would include
physical assets and money invested in a major
criminal enterprise. The "factory" and bank accounts
of an illegal drug operation or the assets of
a business taken over by "organized crime" probably
would Be included.
Yet, application of these forfeiture provisions to
other areas is uncertain. For example, how far
should the terms "acquired" and "maintained" be
stretched? If a person takes the cash proceeds of
racketeering activity and mixes them with money
derived from legitimate sources and then that comenterprise
with which he is associated); United States v.
Field, 432 F. Supp. 55, 58 (S.D.N.Y. 1977). In United
States v. Forsythe, 560 F.2d 1127, 1137 (3d Cir. 1977),
the court reversed a trial court's holding that the term
"associated with" refers to parties "inside" the enterprise
rather than those "outside."
3" For discussion of how an individual can constitute
his own enterprise, see text accompanying notes 122-24
infra.
2 See section on "The Meaning of 'Enterprise"' infra.
" 18 U.S.C. § 1961(4) (1970).
34 For full text of§ 1963(a), see note 5 supra.
mon fund is used to operate a legitimate business,
should all, or any part of, the legitimate business
be subject to forfeiture? What if the money acquired
in violation of section 1962 changes form
several times before forfeiture proceedings begin?
Should the court order forfeiture of assets only in
such proportions as the assets were derived from
racketeering activity?
Other vagueness issues are raised in determining
what is an "interest" or "property right." The
Fifth Circuit has held that a person's position as
an officer in a union is an "interest" subject to
forfeiture under RICO.'s The court limited its
decision by holding that although the defendant's
current position was subject to forfeiture, the trial
court could not bar him from union management
forever since the defendant did not have a present
interest in future positions he might hold.36 The
court admitted, "The scope of the statute is indeed
without precise boundaries.""7 While a person
reading section 1963 might be put on notice that
employment positions as well as assets are subject
to forfeiture, courts must guard against abuse of
the statute by imposing some limits on liability.
The limits could be similar to those applied in
tort law, prohibiting forfeiture if the interest which
the government seeks to forfeit is too remote from
the racketeering activity. In order for a forfeiture
to occur, there should be a reasonably foreseeable
or intentional link between the racketeering activity
and the interest subject to forfeiture.
B. Lack of Authority Under the Commerce Clause and
Incursions into State Power
It may be argued that since RICO incorporates
so many state crimes into a federal felony statute,
it disturbs delicate state/federal relationships and
that the statute lacks authority under the commerce
clause. The response of the courts has been
that it is "long settled" that Congress has the
power to prohibit activities made unlawful by state
law as long as the activity affects interstate commerce.'
s RICO itself incorporates the interstate
" United States v. Rubin, 559 F.2d 975, 990-92 (5th
Cir. 1977) (the defendant's RICO charge was based on
embezzlement of union and employee welfare benefit
plan funds).
36 Id. at 992-93. 37 Id.a t 992.
33In United States v. Cappetto, 502 F.2d 1351, 1356
(7th Cir. 1974), cert. denied, 420 U.S. 925 (1975), the court
said, "The power of Congress to prohibit activities made
unlawful by state law which take place in, or affect,
interstate commerce has long been settled." In upholding
the constitutionality of RICO under the commerce
19781
JEFF A TKINSON
requirement by specifying that the enterprise which
is involved in racketeering activity must be one
which "is engaged in, or the activities of which
affect, interstate or foreign commerce."'39 Thus,
RICO has been held to be a valid exercise of
power under the commerce clause. Further, the
statute can apply to individuals whose own activities
do not have a demonstrable effect on interstate
commerce, but who participated in a crime which
did have such an effect." It might be argued that
since RICO makes such a sweeping incorporation
of crimes which formerly were exclusively within
the states' domain, that offenses charged under the
statute should have an appreciable, and not just a
minimal, effect on interstate commerce. Such an
argument is not likely to succeed, especially in
view of the considerable precedent allowing the
federal government to punish criminal conduct
which has any effect on interstate commerce.4 t
More generally, RICO raises disturbing constitutional
and policy questions about the roles of
the federal government vis a vis the states in law
enforcement. In an effort to catch all possible
members of organized crime and to avoid the
constitutional problem of making a crime of the
status of being a member of organized crime, Congress
passed a sweeping Act which appears to
intrude on state power and has great potential for
abuse against individual defendants.
Generally, Congress has made some attempts to
keep federal law enforcement out of matters of
primarily local concern. For example, when it has
legislated against gambling, it did not allow federal
intervention in violation of state gambling laws
clause, Cappello cited a series of cases which upheld the
validity of the federal gambling statute. 18 U.S.C. § 1955,
and the federal loan shark statute, 18 U.S.C. §§ 891-96
under similar challenges. 502 F.2d at 1356. United States
v. Castellano, 416 F. Supp. 125, 131 (E.D.N.Y. 1975),
also upheld RICO's power under the commerce clause,
saying. "it has long been recognized that Congress has
the power to prohibit activities made unlawful by state
law which take place in or in any way affect interstate
commerce without disturbing the delicate state and federal
relationship."
18 U.S.C. § 1962 (1970).
0 United States v. Cappetto, 502 F.2d 1351, 1356 (7th
Cir. 1974). cerl. denied, 420 U.S. 925 (1975) (citing United
States v. Hunter, 478 F.2d 1019, 1021 (7th Cir. 1973),
cerld.en ied, 414 U.S. 857 (1973)). Cf United States v.
Fineman, 434 F. Supp. 189, 195 (E.D. Pa. 1977) (holding
that even a minimal impact on interstate commerce,
such as making payments in interstate commerce, is
sufficient to withstand a motion to dismiss the indictment).
4i See note 38 supra.
unless the gambling was on a moderately large
scale, as where five or more people were involved
in a business which had been in operation for more
than thirty days, or had gross revenue of S2,000
in a single day.42 Under RICO, however, there are
no de minimis requirements regarding the number
of persons, amounts or duration of the operation.
RICO only requires that there be two violations
of a state gambling law which are punishable by
more than one year imprisonment. In addition to
gambling, RICO makes similar incursions into the
states' authority to regulate or prohibit murder,
kidnapping, arson, robbery, bribery, extortion and
the use of narcotics and dangerous drugs. The only
limits of federal domination of enforcement of these
traditionally state-prosecuted crimes are the limits
of federal resources and prosecutorial discretion. If
the federal government wished to assume the primary
role for enforcing most criminal laws, RICO
is the vehicle by which this can be done.4 This
may be constitutionally permissible, as long as
there is some minimal effect on interstate commerce.
The necessity or wisdom of such a policy
is, however, questionable.
C. Violation of the Prohibition Against Ex Post Facto
Laws and Circumvention of Statutes of Limitations
Defendants have argued that Congress did not
intend to have RICO apply to acts committed
prior to the effective date of the statute, October
15, 1970, and that if RICO were construed to
apply to pre-1970 acts, the statute would be unconstitutional
as ex post facto legislation. Three courts
have held against defendants on both arguments.4
While it is true that RICO could cover acts
committed prior to the effective date of the statute,
the statute is apparently saved by the definition
of "pattern of racketeering activity," which requires,
"at least two acts of racketeering activity,
one of which occurred after the effective date of this chapter
and the last of which occurred within ten years
(excluding any period of imprisonment) after commission
of a prior act of racketeering activity. ' 45
42 18 U.S.C. § 1955.
43 The few major state crimes which RICO does not
cover include assault, rape, forgery, unlawful use of a
weapon, theft and treason.
4' United States v. Campanale, 518 F.2d 352, 363-65
(9th Cir. 1975), cerld.en ied sub nom., Grancich v. United
States, 423 U.S. 1050 (1976); United States v. Field, 432
F. Supp. 55, 59 (S.D.N.Y. 1977); United States v. Mandel,
415 F. Supp. 997, 1022 (D. Md. 1976).
45 18 U.S.C. § 1961(5) (1970) (emphasis supplied). For
a complete definition of "pattern of racketeering activity,"
see note I I supra.
[Vol. 69
RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
In United States v. Field,4 the defendant made several
illegal payments to union officials. Some were
before 1970 and some were after 1970. The defendant
argued that a RICO charge, based on all the
illegal payments, would violate the constitutional
ban on ex post facto laws. The court disagreed,
explaining,
[The statute] creates a separate and distinct crime,
comprised of the commission of at least two previously
defined illegal acts, which is not complete
until the second act is done.... One who has committed
acts of racketeering activity prior to that
(effective) date is on notice that the commission of
a further such act (after the effective date) ...w ill
subject him to liability for a new offense.4'
Although it is permissible to convict a person
partially on the basis of acts committed before
RICO became effective, the indictment must specify
that at least one act of racketeering activity
took place after the effective date of the act. Failure
to do so can result in a finding of plain error in
violation of due process.' It can also constitute
grounds for reversal if instructions to the jury do
not state that a defendant can be convicted under
RICO only if the jury finds that he committed an
act of racketeering activity after the effective date
of the statute.49
An issue analogous to the prohibition against ex
post facto laws is RICO's relationship to the statute
of limitations. Both issues involve time limits on
prosecuting persons for past conduct. Prosecutors
have used RICO to circumvent federal and state
statutes of limitations. Persons have been convicted
under RICO for acts on which the statute of
limitations would have expired had the crimes been
indicted under the predicate offenses.5
0
46 432 F. Supp. 55 (S.D.N.Y. 1977).
47 Id. at 59. Congressional intent on the subject is
expressed in the Senate Judiciary Report:
One act in the pattern must be engaged in after
the effective date of the legislation. This avoids the
prohibition 'against ex post facto laws, and bills of
attainder. Anyone who has been engaged in the
prohibited activities before the effective date of the
legislation is on prior notice that only one further
act may trigger the increased penalties and new
remedies of this chapter.
S. REP. No. 91-617, 91st Cong. 1st Sess. 158 (1969).
,8 United States v. Brown, 555 F.2d 407, 418-21 (5th
Cir. 1977) (holding that an indictment was fatally defective
when it alleged that a RICO conspiracy began
before 1970, but failed to allege when the conspiracy
ended).
49 Id.
5 A predicate offense is one of the 32 federal and
For example, a member of the Pennsylvania
House of Representatives was convicted of accepting
large sums of money from parents in exchange
for obtaining admission for their children into state
university medical and veterinary schools. 5' By the
time the charges were brought, the state statute of
limitations for bribery and extortion had expired.
Nonetheless, using the state bribery and extortion
statute as the predicate offense, the government
filed a RICO charge and obtained a conviction.
The defendant cited the definition of racketeering
activity, which includes various crimes which are
"chargeable under state law,"5 2 and argued that
since the statute of limitations had expired, the
offense was no longer "chargeable under state law."
Therefore, the defendant argued that the alleged
offense should not have been used as a predicate
offense for a RICO indictment. The court did not
accept the argument. It reasoned that Congress
used state crimes to define "racketeering activity"
only for the purpose of incorporating the substance
of the offense and not the statute of limitations.
"Any other construction would render the definition
of 'pattern' essentially meaningless, and would
render the state statutes of limitation paramount
over the federal provisions. ss'
In another case, a prosecutor was able to avoid
the federal five-year statute of limitations4 by
bringing a RICO charge." The court held the
government could prosecute conduct which occurred
more than five years ago as long as at least
one act of racketeering activity took place within
the five-year general limitation period. The court
said, "The language of the Act ... 'clearly contemplates
a prolonged course of conduct.' "" It also
made analogy to a Supreme Court case which held
the statute of limitations runs from the date of the
last overt act.5 7
The decisions of these courts seem correct. In
state crimes which make up the definition of "racketeering
activity." For definition of "racketeering activity,"
see note 4 supra.
5' United States v. Fineman, 434 F. Supp. 189 (E.D.
Pa. 1977). The bribes ranged from $11,000 to $15,000
per student.
52 See note 4 supra.
53 434 F. Supp. at 194-95.
5' 18 U.S.C. § 3282 (1970) (applicable to non-capital
offenses).
' United States v. Field, 432 F. Supp. 55,59 (S.D.N.Y.
1977).
' Id. (quoting Toussie v. United States, 397 U.S. 112,
115 (1970)).
"7 Grunewald v. United States, 353 U.S. 391, 396-97
(1957).
JEFF ATKINSON
addition to the reasons given by the courts speaking
to this issue, it would be anomalous to have unequal
enforcement of a federal statute because of
variations between the statutes of limitation in
force in the various states. If, however, the government
attempts to use RICO to try a person for
acts committed so long ago that the defendant is
unable to prepare his defense properly, then principles
of due-process should bar a RICO prosecution.
58
In cases in which the defendant is not prejudiced
by delay, the general five-year federal statute of
limitations combines with the definition of "pattern
of racketeering activity" to allow prosecutions
if: (1) the most recent acts of racketeering activity
occurred within five years prior to the indictment
or information, and (2) at least one other act of
racketeering activity occurred within ten years of
the most recent one (excluding any period of confinement).
RICO does not provide a clear cut-off
point for past conduct which is beyond the reach
of the statute. The definition of "pattern of racketeering
activity," however, implies that RICO can
reach any past conduct as long as the most recent
two acts of racketeering activity occurred within
ten years of each other. Obviously, the further
back in time the government attempts to reach,
the greater the possibility of prejudice to the defendant.
D. Double Jeopardy and Multiplicity
Anyone who has been convicted of a RICO
offense, by the definition of "racketeering activity,"
also will have committed the predicate offenses on
which the RICO charge was based. By illustration,
if the predicate offenses of a RICO charge are two
acts of mail fraud, and the defendant is found
guilty, then the defendant has not only committed
a RICO offense, but he has also committed two
acts of mail fraud. It is common practice to indict
persons for both the RICO offenses and the pred-
'MSee United States v. Marion. 404 U.S. 307, 324-26
(1971). In Marion, the Court said a delay between the
conclusion of an offense and indictment for the offense
could violate due process. In this case, however, the
Court found the due process claim was premature and
remanded the case for determination by the trial court
of whether the defendant actually was prejudiced. The
Court also noted the fact that the case was brought
within the statute of limitations does not automatically
dispose of a claim that due process was violated by a
delay. Id.
' "[Njor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb .. .
U.S. CONsT. amend. V.
icate offenses, using separate counts for each. This
raises the issue of whether such a conviction violates
the constitutional rule against double jeopardy5 9
or the rules against multiplicity.'
Five courts have considered the double jeopardy
or multiplicity issues. All held that it is permissible
to charge a defendant with both the RICO offense
and the predicate offenses.61 The most common
rationale is that even though both charges arise
out of the same conduct, the RICO offense has
the added element of a "pattern"-the government
must prove at least two separate instances of racketeering
activity. Since the elements of each offense
are not exactly the same, the courts have been
satisfied that double jeopardy and multiplicity
were not problems.' A majority of a panel on the
Third Circuit, with one vigorous dissent, recently
held that defendants who had been acquitted in
state court of bribery, extortion, and conspiracy
in connection with a scheme to avoid payment of
the Pennsylvania cigarette tax, could be re-indicted
in federal court for the same activities.' In so
holding, the majority followed the Supreme
Court's 1959 decision of Abbate v. United States,64
60 "Multiplicity" is the charging of a single offense in
several counts. It is distinguished from "duplicity," which
is the joining of a single count of two or more distinct
and separate offenses.
st United States v. Frumento, 563 F.2d 1083, 1089 (3d
Cir. 1977). The trial court in Frunento reached the same
conclusion, 409 F. Supp. 136, 139-40 (E.D. Pa. 1976).
See also United States v. Hansen, 422 F. Supp. 430,
433-34 (E.D. Wis. 1976); United States v. White, 386 F.
Supp. 882,884 (E.D. Wis. 1974); United States v. Stofsky,
409 F_ Supp. 609, 617-18 (S.D.N.Y. 1973), af'd, 527
F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819 (1976).
' The court in United States v. Stofsky, 409 F. Supp.
609, 617-18 (S.D.N.Y. 1973), aff'd, 527 F.2d 237 (2d Cir.
1975), cert. denied, 429 U.S. 819 (1976), stated:
[T]he issue of multiple punishment for the same
criminal acts will not ripen unless and until guilty
verdicts are returned on the alleged overlapping
counts, or unless and until it becomes obvious at
trial that the evidence with respect to the contested
counts is, in fact, the same. In that event, this Court
will be required to examine more intensely the
congressional intent underlying § 1962(c), and strike
certain counts, or require the government to elect,
or use other remedies available.
r' United States v. Frumento, 563 F.2d 1083, 1089 (3d
Cir. 1977) (Rosenn & Hunter, J.J.) (Aldisert, J., dissenting).
6' 359 U.S. 187 (1959). See also Bartkus v. Illinois, 359
U.S. 121 (1959) (holding that a state prosecution for
bank robbery was not barred under the due process
clause of the fourteenth amendment because of a prior
acquittal for a federal offense on substantially the same
evidence).
[Vol. 69
RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
which upheld a federal conviction for destroying
communication facilities operated by the United
States, even though the defendants previously had
been convicted for the same misconduct in state
court.
Recent Supreme Court cases suggest that the
Court might be ready to modify or reverse Abbate.6
If so, the government could not simultaneously
prosecute a person for a RICO violation and the
predicate offenses. The government would have to
elect which charges to pursue or it would face
having some of the counts dismissed. Similarly,
the government could not indict an individual
under RICO, if he had already been tried in state
court for the same conduct.
III. Is RICO LIMITED TO AcrTvITIES INVOLVING
ORGANIZED CRIME?
Several defendants indicted under RICO have
argued that the RICO charges should be dismissed
because the statute was intended to apply only to
persons involved in "organized crime." In effect,
the argument is that one of the elements of a
RICO offense is membership in "organized crime."
Presumably, under this argument, membership in
"organized crime" is implied in the definition of
"racketeering activity." Absent such an allegation
and proof, the indictment should be dismissed.
Four courts have ruled on the question. Three held
that RICO is not limited to defendants involved
in organized crime,6 while one held that it is so
'See, e.g., Brown v. Ohio, 97 S. Ct. 2221 (1977)
(holding that a prior conviction under state law for
joyriding-taking a vehicle without the owner's consent-
prohibited a subsequent prosecution for auto
theft-joyriding with the intent permanently to deprive
the owner of possession). Under this reasoning, a court
could say that the predicate acts of racketeering activity
are lesser included offenses of the RICO charge, and,
therefore, the double jeopardy clause should block prosecution
for both. In Abney v. United States, 97 S. Ct.
2034, 2041 (1977), the Court said that "the double jeopardy
clause is a guarantee against being twice put to
trial for the same offense" (emphasis in original). Although
speaking of the double jeopardy protection in
broad terms, Abney held that the double jeopardy clause
did not bar a retrial on a conspiracy charge after reversal
on evidentiary grounds when it was clear the defendant
was convicted and not acquitted of the conspiracy charge
at his first trial. See also United States v. Frumento, 563
F2d 1083, 1092 (3d Cir. 1977) (Aldisert, J., dissenting).
" United States v. Campanale, 518 F.2d 352, 363-64
(9th Cir. 1975), cert. denied sub. non., Grancich v. United
States, 423 U.S. 1050 (1976); ("[T]he words of the statute
are general. They contain no restriction to particular
persons.") United States v. Mandel, 415 F. Supp. 997,
1018-19 (D. Md. 1976); United States v. Amato, 367 F.
limited." The majority view seems to be the correct
interpretation of the statute.
There is no dispute that RICO was intended to
deal primarily with organized crime. The title
under which RICO was passed is "The Organized
Crime Control Act." The Statement of Findings
and Purpose of the Act contained five points, all
of which dealt exclusively with organized crime.68
The concluding paragraph of the statement begins,
"It is the purpose of this act to seek the eradication
of organized crime in the United States.... 69
Also, the opening statements made in introducing
the Act in the House of Repre~entatives,7 ° and the
debates which followed,71 all focused on the evils
of organized crime and the need to eradicate them.
The one court which held that application of
RICO is limited to members of organized crime
relied on the legislative history's "frequent reference
to 'racketeers,' 'organized crime,' ... as well
as 'syndicate,' 'mafia,' and 'cosa nostra."' 7 2
The majority view has looked to the statutory
language of RICO and has found that the statute
does not restrict itself to organized crime.73 RICO
proscribes specific conduct. It does not proscribe
the status of being involved in organized crime.
"Racketeering activity" is defined in terms of violation
of federal and state statutes.74 Nowhere in
RICO or the Organized Crime Control Act is there
a definition of "organized crime." From this it can
Supp. 547, 548 (S.D.N.Y. 1973). Cf United States v.
McLaurin, 557 F.2d 1064 (5th Cir. 1977) (rejecting defendants'
argument that RICO was only intended to
reach infiltration by organized crime of legitimate business
enterprises and holding that the statute covers enterprises
organized for illegitimate purposes); United
States v. Roselli, 432 F.2d 879 (9th Cir. 1970), cert. denied,
401 U.S. 924 (1971) (holding that 18 U.S.C. § 1952,
another racketeering statute, applies to anyone who commits
the proscribed conduct).
6 Barr v. WUI/TAS, 66 F.R.D. 109, 113 (S.D.N.Y.
1975) (civil action against a telephone answering service
in which it was claimed rates were increased arbitrarily
in violation of RICO).
' 84 Stat. 922, 923.
69 Id.
7 Hearings on S. 30 and Related Proposals Before Sub-Comm.
No. 5 of the House Comm. onjudiciaoy, 91st Cong., 2d Sess.
77-80 (1970) (statements by Sub-committee Chairman
Celler and Congressmen McCulloch and Pofi).
71 116 CONG. REC. 602 (1970) (Sen. Hruska); id at
603 (Sen. Allott); id. at 607 (Sen. Byrd); id. at 819-20
(Sen. Scott); id. at 35191 (Rep. Fisk); id. at 35196 (Rep.
Celler); ia at 35200 (Rep. St. Germain).
7 66 F.R.D. 109, 111 (S.D.N.Y. 1975).
73 See cases cited in note 65 supra..
v' See note 4 supra.
19781
JEFF A TKINSON
be inferred that Congress did not intend to prohibit
organized crime per se, but rather it intended to
prohibit conduct which is associated with organized
crime as well as conduct associated with
other criminal activity. Indeed, as one court has
observed, if conviction under RICO depended on
membership in organized crime, the statute would
probably be unenforceable or unconstitutional.7 5
Such a statute would make its violation, a matter
of status and would probably be a denial of equal
protection. Additionally, it would be most difficult
to formulate a satisfactory and precise definition
of "organized crime."
The drafters of RICO recognized this problem.
Senator McClellan, chairman of the sub-committee
which wrote the statute, stated in a law review
article published soon after RICO's passage, "It is
impossible to draw an effective statute which
reaches most of the commercial activity of organized
crime, yet does not include offenses commonly
committed by persons outside of organized
crime as well." 76 Representative Poff, who served
on the House sub-committee which considered
RICO, said on the floor of the House:
[Elven as to Titles of S. 30 needed primarily in
organized crime cases, there are very real limits on
the degree to which such provisions can be strictly
confined to organized crime cases.... S. 30 must, I
suggest, stand or fall on constitutional questions
without regard to the degree to which it is limited
to organized crime cases.77
Ironically, senators and representatives who opposed
RICO provide some of the most explicit
legislative history for the proposition that-RICO
is not limited to organized crime. Senators Hart
" United States v. Mandel, 415 F. Supp. 997, 1019
(D. Md. 1976).
76 McClellan, The Organized Crime Act (S. 30) or its
Critics: Which Threatens Civil Liberties?, 46 NOTRE DAME
LAW 55, 143-44 (1970).
"; 116 CONG REC. 35344 (1970) (Rep. Poff's comments
were directed to the organized Crime Control Act in
general and Title I-grand juries-in particular). The
Senate Judiciary Committee, in discussing Title IX,
makes an apparent differentiation between organized
crime and racketeering. The Committee said the purpose
of Title IX is "the elimination of the infiltration of
organized crime and racketeering activity into legitimate
organizations operating in interstate commerce." S. REP.
No. 91-617, 91st Cong.. Ist Sess. 76 (1969). Since the
report used the terms "organized crime and racketeering
activity," it can be inferred that the terms are not synonimous
(emphasis supplied). Thus, one can engage in
the prohibited racketeering activity without being a
member of organized crime.
and Kennedy in their minority statement said,
"[Tihe reach of this bill goes beyond organized
crime activity. ... "' Representatives Conyers,
Mikva and Ryan, in opposing the House bill in
committee, said, "Granted we may welcome an
organized crime member's conviction, but the titles
make no discreet segregation of mobsters. It is a
tool to be employed for all.",79
RICO's application to activity other than organized
crime also can be implied from the language
of other titles of the Organized Crime Control Act.
Title VI, dealing with depositions, is specifically
applicable only to cases where the Attorney General
certifies "that the legal proceeding is against
a person who is believed to participate in organized
criminal activity."' 8 Title IX of the Act (RICO)
is not by its language exclusively limited to organized
crime. If Congress had wished to limit RICO
to organized crime, it could have done so, as it
did with Title VI. Since Congress did not, it can
be inferred, that RICO's scope extends beyond
organized crime.
Finally, to the extent it can, or should, be given
effect,"' the liberal construction clause of RICO 2
will expand, not narrow, the scope of the statute.
IV. THE MEANING OF "PATTERN OF
RACKETEERING ACTIVITY"
In order to obtain a conviction under RICO,
the government must show that the defendant
engaged in a "pattern of racketeering activity."
"Pattern of racketeering activity" is defined as "at
least two acts of racketeering activity, one of which
occurred after the effective date of this chapter
and the last -of which occurred within ten years
(excluding any period of imprisonment) after the
commission of a prior act of racketeering
activity .... ,M By the definition alone, the term
"pattern" does not require that there be a relationship
between the two acts of racketeering activity.
Nonetheless, the legislative history and judicial
construction of the term show that such a connection
is necessary.
The Senate Report on RICO explained, "The
target of Title IX is thus not sporadic activity.
78S. REP. No 91-617, 91st Cong., 1st Sess. 215 (1969).
7H. R. REP. No. 91-1549, 91st Cong., 2d Sess. 187
(1970).
s 18 U.S.C. § 3503(a) (1970). For a list of the other
titles of the Organized Crime Control Act, see note 2
supra.
8i See text accompanying notes 116-19 infra.
8 Title IX, § 904(a), 84 Stat. 947.
3 18 U.S.C. § 1961(5) (1970).
[Vol. 69
RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
The infiltration of legitimate businesses normally
requires more than one "racketeering activity" and
the threat of continuing activity to be effective. It
is this factor of continuity, plus relationship, which
combine to produce a pattern." '
Courts which have considered the issue have
held "the racketeering acts must have been connected
with each other by some common scheme,
plan or motive so as to constitute a pattern and
not simply a series of disconnected acts."' 5 It also
has been held that "'the government must prove
such an interrelatedness beyond a reasonable
doubt.' '86 Probably no single test will evolve
to determine the presence of the necessary interrelationship
between acts of racketeering activity.
Connection can be established in many ways. In
addition to common motive, courts will or have
considered proximity in time of the acts in question,
their method of commission, commonality of participants
and similarity of victims.8 7
8 S. REP. No. 91-617, 91st Cong., IstSe ss. 158 (1969).
' United States v. Stofsky, 409 F. Supp. 609, 614
(S.D.N.Y. 1973), aff'd, 527 F.2d 237 (2d Cir. 1975), cert.
denied, 429 U.S. 819 (1976) (holding that 15 separate
instances, within a one and one-half year period, of
unlawfully accepting payments from union-shop manufacturers
in return for permitting these manufacturers
to sub-contract work to non-union shops constituted a
pattern). See also United States v. Morris, 532 F.2d 436,
442 (5th Cir. 1976) (holding that several rigged card
games which occurred over a 19 month period constituted
a pattern); United States v. Fineman, 434 F. Supp. 189,
193 (E.D. Pa. 1977) (holding that acceptance of four
bribes over a two and one-half year period from parents
who wanted their children admitted to graduate school
appeared to be a sufficient enough pattern to warrant a
trial on the merits); United States v. Moeller, 409 F.
Supp. 49, 58 (D. Conn. 1975) (stating in dictum that
"[a] 'pattern' can apparently be established in this Circuit
by two acts occurring on the same day in the same place
and forming part of the same criminal episode"). Cf.
United States v. Ladmer, 429 F. Supp. 1231 (E.D.N.Y.
1977). In Ladmer, the court said a common scheme was
necessary, but there was not a pattern of racketeering
activity because the allegedly illegal lavish union conventions
"did not relate to the essential functions of that
union." The court's requirement that the act of racketeering
activity relate "to the essential functions" of the
enterprise is not supported by the language of the statute
or legislative history. Id.at 1245.
' United States v. Kaye, 556 F.2d 855, 860 (7th Cir.
1977) (quoting United States v. White, 386 F. Supp.
882, 883-84 (E.D. Wis. 1974)).
1 In determining the inter-relationship between acts
of racketeering activity, courts can be guided by the
definition of "pattern of criminal conduct" as used in
the title of the Organized Crime Control Act relating to
special offenders. 18 U.S.C. § 3575 (1970) provides that
"criminal conduct forms a pattern if it embraces criminal
Assuming that an interrelationship between acts
is necessary, the issue arises of whether a pattern
can exist when the acts are so closely linked that
they can be viewed as part of the same transaction.
The district court in United States v. Moeller' said
common sense and the canon of narrow construction
of penal statutes should require that the "pattern"
of acts occur in "different criminal episodes...
that are at least somewhat separated in time and
place yet still sufficiently related in purpose to
demonstrate a continuity of activity. ' Nonetheless,
the same court, referring to an opinion in its
circuit, found that a "pattern" can be established
"by two acts occurring on the same day in the
same place and forming part of the same criminal
episode."
9
The case to which the district court referred is
United States v. Parness.9" In Parness, there was a
single scheme to take over a hotel. In furtherance
of that scheme, a person was sent out of state to
pick up two cashier's checks. The checks were then
transported out of state, one to repay a loan and
the other to pay the lender's attorney. From these
acts, the prosecutor alleged three predicate offenses
of a RICO violation. One act was the causing a
person to travel in interstate commerce in furtherance
of a scheme to defraud. Two additional illegal
acts derived from the interstate transportation of
stolen property. Even though the acts were part
of a single scheme with a single purpose,9 the
Second Circuit held this was enough to invoke the
harsh provisions of RICO.
Parness is an example of the sweeping nature
and potential abuse of RICO. Almost any criminal
activity can involve a combination of at least two
of the thirty-two federal and state offenses which
make up the definition of "racketeering activity."
This is especially true when the incorporated federal
and state statutes are aimed at the same
conduct, such as extortion, gambling, robbery and
drug offenses. Thus, application of the Second
Circuit's approach to, for example, a single act of
acts that have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise
are interrelated by distinguishing characteristics and
are not isolated events."
1 402 F. Supp. 49 (1975) (holding that a venture to
burn a single building is not an "enterprise" within the
meaning of RICO).
8Id at 57.
90 Id. at 58.
9' 503 F.2d 430 (2d Cir. 1974), cert. denied, 419 U.S.
11095 (1975). '2 d. at 434-35, 441-42.
1978]
JEFF ATKINSON
gambling or extortion could result in a RICO
prosecution merely on the basis that the single act
is punishable under state and federal laws both of
which were incorporated in the definition of "racketeering
activity." Even if the two predicate acts
which make up a RICO offense are not chargeable
under parallel federal and state statutes, it is often
easy to allege a state violation as one predicate
offense and throw in a catch-all federal violation,
such as interstate transportation of stolen goods or
mail fraud, as the second predicate offense. 93
Given the legislative history of RICO which
focuses on attacking major criminal operations and
the principle of narrow construction of criminal
statutes, the Moeller approach seems preferable.
RICO is too heavy-handed a tool for enforcing
the law against a single criminal episode. 4 No
matter how terrible that single crime may be, there
are ample federal and state statutes to deal with
it.
V. THE MEANING OF "ENTERPRISE"
A key element of a violation of RICO is the
existence of an "enterprise" with which the defendant
has some connection. In addition to proving a
pattern of racketeering activity or collection of
unlawful debt, it must be shown that the defendant
invested in, maintained an interest in, was employed
by, or associated with an enterprise which
affected interstate commerce.9" The statute defines
enterprise as "any individual, partnership, corporation,
association, or other legal entity, and any
union or group of individuals associated in fact
although not a legal entity." 96 Despite the broad
93 It is not necessary to indict a person specifically for
a predicate offense in order to charge the person under
RICO, although it is necessary to specify the predicate
offense in the RICO indictment. Id. at 441. For example,
if a person engages in a fraud scheme for which two
acts of mail fraud are the predicate offenses, it is not
necessary to issue a three-count indictment charging two
counts of mail fraud and one RICO count; a single
count under RICO will be sufficient. In practice, prosecutors
usually indict for predicate offenses as well as for
RICO.
" As previously discussed, RICO does have a clause
which states the statute shall be liberally construed.
Although the clause is indicative of Congress' intent to
have a broad statute, the clause should not be given
effect when it conflicts with the constitutional principle
that a criminal statute must be narrowly construed or
that its words be given no more than their plain meaning.
See text accompanying notes 115-17 infra and notes 19
& 23 supra.
95 18 U.S.C. § 1962 (1970).
18 U.S.C. § 1961(4) (1970).
definition, several arguments have been made to
narrow the meaning of "enterprise." a Specifically,
it has been urged that "enterprise," and, therefore,
RICO, should not apply to illegal enterprises, governmental
units, foreign corporations, and individuals
who are not associated with a formal organization.
A. Illegal Enterprises
The argument against including illegal activities
within the definition of "enterprise" is similar to
the argument that RICO should be restricted to
"organized crime." Both arguments focus on the
main purpose of RICO-"the elimination of the
infiltration of organized crime and racketeering
into legitimate organizations operating in interstate
commerce.' '
8 However, upon a closer examination
of the statute and its legislative history, the assertion
that "enterprise" does not include illegal activity
fails as does a similar argument narrowly
construing "racketeering activity."
Eight courts, including three circuit courts of
appeals, have considered this issue and have held
that "enterprise" includes illegal activities." Only
one court has held that "enterprise" applies only
to legitimate business,t° and that decision has
been overruled by a subsequent decision.10 ' The
majority of courts have noted that the definition
of "enterprise" contains no restriction limiting its
coverage to legitimate entities. 102 It has been argued
that had Congress wished to include such a
restriction, it would have been easy to do so. l
0
17 The meaning of the word "enterprise" has been the
most litigated issue under RICO. As of this writing 17
of the 37 reported cases have discussed the subject.
98 S. REP. No. 91-617, 91st Cong., 1st Sess. 80 (1969)
(emphasis supplied).
9FUnited States v. McLaurin, 557 F.2d 1064, 1073
(5th Cir. 1977) (prostitution ring); United States v.
Altese, 542 F.2d 104, 106 (2d Cir. 1976) (gambling);
United States v. Morris, 532 F.2d 436, 442 (5th Cir.
1976) (rigged card games); United States v. Hawes, 529
F.2d 472, 479 (5th Cir. 1976) (gambling); United States
v. Cappetto, 502 F.2d 1351, 1358 (7th Cir. 1974), cert.
dented, 420 U.S. 925 (1975) (gambling); United States v.
Fineman, 434 F. Supp. 189, 193 (E.D. Pa. 1977) (taking
bribes); United States v. Winstadt, 421 F. Supp. 295,
296 (N.D. Ill. 1976) (gambling): United States v. Castellano.
416 F. Supp. 125, 128 (E.D.N.Y. 1975) (usury).
6 United States v. Moeller, 402 F. Supp. 49, 58-60
(D. Conn. 1975) (burning buildings).
t"t United States v. Altese, 542 F.2d 104, 106 (2d Cir.
1976) (gambling).
102 See. e.g., United States v. Cappetto, 502 F.2d 1351,
1358 (7th Cir. 1974), cert. denied, 420 U.S. 925 (1975).
" United States v. Altese. 542 F.2d 104, 106 (2d Cir.
1976).
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RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
Legislative history supports the broad interpretation
of "enterprise." The Statement of Findings
and Purpose contained in the Organized Crime
Control Act speaks of the need "to seek the eradication
of organized crime."" 8 It does not limit its
scope to infiltration of legitimate businesses. Further,
the Senate Report on RICO indicated that
one of the statute's purposes was to eliminate illegal
gambling operations. 05°
B. Governmental Units
Several recent RICO cases have involved corrupt
activity of public officials. To meet the "enterprise"
requirement of the statute, the prosecution has
asserted that government is an "enterprise" within
the meaning of RICO. Finding that a governmental
unit is an "enterprise" has special significance.
Not only would conviction under RICO make a
public official subject to fines and imprisonment,
but also, the statute can be construed to require
forfeiture of the official's public office.
The criminal penalties section provides that
whoever violates RICO "shall forfeit ... (1) any
interest he has acquired or maintained in violation
of section 1962, and (2) any interest in ... any
enterprise ... which he has ... participated in...
in violation of section 1962." ° Assuming that a
government is an "enterprise" and that an official's
illegal conduct related to his public office (e.g.,
accepting bribes), the public office would seem to
be subject to forfeiture. That office is an interest
in an enterprise maintained in violation of section
1962. The penalty provisions, like the proscriptions,
are written broadly, and there is no indication
that forfeitable interests are confined to physical
assets or money. As yet, no reported cases have
dealt with the issue of forfeiture of public office.
The Fifth Circuit, however, has held that a union
official who violated RICO had to forfeit his various
offices within the union and his employee
welfare benefit plans.' 7 A similar holding could
be expected regarding forfeiture of public offices.' 08
1o 84 Stat. 923.
i05S. REP. No. 91-617, 91st Cong., Ist Sess. 72-73
(1969).
18 U.S.C. § 1963(a) (1970).
0 United States v. Rubin, 559 F.2d 975, 990-93 (5th
Cir. 1977). Rubin held, however, that although current
offices were subject to forfeiture, the trial court could
not order that the defendant could be barred from such
offices forever since the defendant did not yet have an
"interest" in future offices.
1"8A state official convicted under RICO could argue
that a federal statute requiring forfeiture of a state office
is an infringement on state sovereignty. In most instances,
Three cases have dealt with the issue of whether
a governmental unit is an "enterprise." Two circuit
courts have held that a governmental unit is an
enterprise. One district court has held that it is
not. In United States v. Brown,1°9 the court found
that the actual language" of the. statute is very
broad, encompassing any "legal entity," including
public entities such as a police department. The
court also relied on a portion of the Statement of
Findings and Purpose of the Organized Crime
Control Act which states that ".organized crime"
uses its illegally obtained money "to subvert and
corrupt our democratic processes."' 0 United States
v. Fnento focused on the "devastating effects" of
racketeering activity on the American economy
and found that Congress must have meant to
include governments within the definition of "enterprise"
since governments regulate and have a
major effect on the economy."' In Frumento, the
governmental unit involved was the Pennsylvania
Bureau of Cigarette and Beverage Taxes, some
employees of which were bootlegging large quantities
of untaxed cigarettes.
If the dictionary definition of "enterprise" provided
the applicable standard, the government
probably would not meet the requirement since
"enterprise" is normally associated with business
or making money.112 The statute, however, provides
a broader definition. It contains no restrictions
regarding business or profit-making purpose.
Applying the words of the statute alone, government
meets the requirement of being "any ...
corporation ... or other legal entity." ' Further,
from a policy standpoint, the need to remove racketeering
activity from government is as great or
greater thap the need to remove racketeering from
private business. Corruption within a government
entity does more to undermine democratic institutions
and public confidence than does corruption
of business.
the issue would be moot since convicted felons are usually
removed from office automatically. The forfeiture provisions
of RICO will be discussed further in the section on
"Criminal Penalties," infra.
i09 555 F.2d 407, 415 (5th Cir. 1977).
o Id. (quoting 84 Stat. 923).
n"563 F.2d 1083, 1089 (3rd Cir. 1977). The district
court also held that the governmental units met the
definition of "enterprise." United States v. Frumento,
405 F. Supp. 23, 29-30 (E.D. Pa. 1975),followedin United
States v. Frumento, 426 F. Supp. 797, 801-03 (E.D. Pa.
1976).
112 AMERICAN HERITAGE DICTIONARY 436 (New College
ed. 1976).
'" 18 U.S.C. § 1961(4). For full definition, see text
accompanying note 96 supra.
JEFF A TKINSON
The only case which has held that governmental
units are not "enterprises" within the meaning of
RICO is United States v. Mandel,' 4 in which the
governor of Maryland and others were charged
with mail fraud and racketeering. The court directly
criticized the district court decision in Frumentot
15 and ruled that the State of Maryland is
not an "enterprise." Unlike the courts in Brown
and Frumento, the Court in Mandel refused to apply
RICO's liberal construction clause.
While Congress may instruct courts to give broad
interpretations to civil provisions, it cannot require
courts to abandon the traditional canon of interpretation
that ambiguities in criminal statutes are to
be construed in favor of leniency. To do so would
be to violate the principles of due process on which
the canon of interpretation rests." 6
The court said the legislative history and forfeiture
remedies indicated that RICO was meant to apply
only to commercial entities. In addition, the Court
reasoned that states-unlike private businesseshave
their own resources with which to fight internal
corruption and that courts "should be reluctant
to give a broad construction to a criminal statute
which would transform matters primarily of local
concern into federal felonies."" 7
Mandel is correct in refusing to apply the liberal
construction clause. The Supreme Court has consistently
held that criminal statutes should be
strictly construed and that their words should be
given no more than their plain meaning.118 Although
Congress has intended that RICO have
broad scope, the statute's reach and remedies cannot
exceed the plain meaning of its words. If RICO
is to have broad application, the application must
be based on the words of proscription and not on
stretched interpretations utilizing the liberal con-
114 415 F. Supp. 997 (D. Md. 1976). Governor Marvin
Mandel is the most famous person to be convicted under
RICO. He was found guilty by a jury Aug. 23, 1977, of
one RICO count and 15 counts of mail fraud. The court
dismissed the other two counts-one each for RICO and
mail fraud. Governor Mandel was sentenced Oct. 7,
1977, to four years imprisonment for each count for
which he was convicted. The terms are to be served
concurrently. He faced a maximum sentence of 105 years
imprisonment and a $42,000 fine. Although he is not
currently serving as governor, he has not resigned his
post and, therefore, can reclaim the governorship if his
convictions are overturned on appeal. N.Y. Times, Oct.
8, 1977, § 1, col. 1.
115 405 F. Supp. 23, 29-30 (E.D. Pa. 1975).
116 415 F. Supp. at 1022 (citations omitted).
1" Id. at 1021.
118 See note 19 supra.
struction clause. To do otherwise would result in
persons convicted of crimes without proper notice
of what conduct is prohibited, and that would be
violative of due process."'
Even though the Mandel court was properly concerned
with the liberal construction clause and
intrusions into state power, the fact remains that
"enterprise" has been given an especially broad
definition which appears to include governmental
units.
C. Foreign Corporations
A third attempt to limit the meaning of "enterprise"
was made by a defendant who engaged in
fraud and racketeering activities in the United
States in order to obtain an interest in a gambling
hotel located in a foreign country. The defendant
argued that RICO was not intended to reach
investments in foreign corporations. The Second
Circuit disagreed, holding that RICO was intended
to reach effects on the American economy
regardless of whether the enterprise was located in
the United States. "[T]he salutary purpose of the
act would be frustrated by such construction. It
would permit those who ravage the American economy
to escape prosecution simply by investing the
proceeds of their ill-gotten gains in a foreign enterprise.
' 20
D. Individuals
Finally, it has been argued that individuals do
not constitute an enterprise. More specifically, persons
who by their associations constitute an enterprise
should not be indicted for associating with
that enterprise.' However, in this instance, as
before, the statutory definition of enterprise requires
a different result. "Enterprise" includes "any
individual ... or other legal entity, and ... any
group of individuals associated in fact although
not a legal entity.' ' "s If one applies the ordinary
meaning of "enterprise," it could be assumed that
enterprises are analogous to normal businesses
which deal in products or services for their own
profit. The statute, however, is not so restrictive.
Thus, the words of the statute referring to "individuals,"
combined with the majority view that
"enterprise" encompasses illegitimate activity,
leads to the conclusions that an individual robber,
119 Id.
120 United States v. Parness, 503 F.2d 430, 439 (2d
Cir. 1974), cert. denied, 419 U.S. 1105 (1975).
121 United States v. Hawes, 529 F.2d 472, 479 (5th
Cir. 1976).
122 18 U.S.C. § 1961(4) (1970).
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RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
briber, extortionist, or gambler can be an enterprise
within the meaning of RICO. Using a commercial
analogy, it could be said that the robber or briber
is a sole proprietor or independent contractor engaged
in the business of crime for personal profit.
In the one published case where this issue was
raised, the Fifth Circuit, without discussion, concluded
that individuals engaged in gambling constitute
an enterprise.123
VI. CRIMINAL PENALTIES
There are three criminal penalties for violation
of RICO, all of which may be used simultaneously.
These include a fine of not more than S25,000,
imprisonment for not more than twenty years and
forfeiture of any interest acquired or maintained
in violation of the statute. 24 These penalties are
severe, and, in many cases, exceed the penalties
1" United States v. Morris, 532 F.2d 436, 442 (5th
Cir. 1976) (holding that a group of individuals who
arranged rigged card games constituted an enterprise);
United States v. Hawes, 529 F.2d 472, 479 (5th Cir.
1976) (holding that two individuals constituted a gambling
enterprise). Other RICO cases involving gambling
have appeared to treat the gambling enterprise as an
entity separate from the individuals who made it up. See
United States v. Altese, 542 F.2d 104, 106 (2d Cir. 1976);
United States v. Cappetto, 502 F.2d 1351, 1358 (7th Cir.
1974), cert. denied, 420 U.S. 925 (1975). Those cases,
however, did not hold that the individuals associated
with the illegal operation could not in and of themselves
constitute an enterprise.
1- 18 U.S.C. § 1963(a) (1970). The forfeiture provisions
raise many issues, some ofwhich have been discussed
already. See text accompanying notes 34-37 (vagueness)
and notes 106-09 (type of interests subject to forfeiture)
supra.
The statute allows district courts to enter restraining
orders and prohibitions in connection with property and
interests which are subject to forfeiture. 18 U.S.C.
§ 1963(b). Two reported cases have considered an application
for injunction under § 1963(b). In United States
v. Mandel, 408 F. Supp. 679, 682-84 (D. Md. 1976),
the court considered by analogy four factors used in
determining whether a preliminary injunction should
issue in a civil case:
(1) Has petitioner made a strong showing that he
is likely to prevail on the merits at trial?
(2) Has irreparable harm in the absence of relief
been shown?
(3) Would the issuance of the injunction substantially
harm other parties interested in the proceedings?
(4) Where does the public interest lie?
Id. at 682. The court refused to issue an injunction which
would have prohibited transfer of any property subject
to forfeiture. The court noted there was no showing that
the defendants were attempting to dispose of such property
and that non-defendants had interests in the same
property which would be impaired if an injunction were
issued. While not foreclosing the possibility of an injuncfor
the individual crimes underlying the RICO
violation. For example, a person who commits two
acts of mail fraud would be subject to a maximum
sentence of a S2,000 fine and ten years imprisonment,
with no forfeiture."s This is the maximum
penalty, and it assumes that the sentences are to
be served consecutively, which is not usually the
case.
RICO can even apply to persons who commit
two misdemeanors under federal labor law. One
of the offenses which make up the definition of
"racketeering activity" is a violation of 29 U.S.C.
§ 186, which prohibits union representatives from
receiving money, other than normal wages, from
an employer. 126 The maximum penalty for each
tion in some cases, the court said that an injunction
based in part on a finding that the Government was
likely to succeed on the merits "would be incompatible
with the presumption of innocence defendants enjoy until
such time, if ever, as a jury finds them guilty beyond a
reasonable doubt." Id. at 683.
In the second case, the defendant also argued that an
injunction would deprive him of his presumption of
innocence. Here, however, the court issued an injunction
prohibiting the defendant from transferring his business
assets. The court said, "[Tlhe restraining order serves
only to maintain the status quo and thus is neither illegal
nor unconstitutional." United States v. Scalzitti, 408 F.
Supp. 1014, 1015 (W.D. Pa. 1975). The judge added
that the restraining order might be removed if the defendant
received a good faith offer to buy his business.
Id.
In addition to Scalzitti, two other cases have held that
the forfeiture provisions are constitutional. United States
v. Parness, No. 73 Cr. 157 (S.D.N.Y. 1973), aff'd, 503
F.2d 430 (2d Cir. 1974), cert. denied, 419 U.S. 1105 (1975);
United States v. Amato, 367 F. Supp. 547, 549 (S.D.N.Y.
1973).
In order for the government to obtain forfeiture of
interest under RICO, it must give notice in the indictment
or information of its intent to do so. FED. R. CRIM.
P. 7(c) (2) provides: "When an offense charged may
result in a criminal forfeiture, the indictment or the
information shall allege the extent of the interest or
property subject to forfeiture." The Rule was adopted
in 1972. The Advisory Committee notes explained that
it was added, along with Rule 31(e) and 32(b)(2), primarily
to provide procedures for implementing the forfeiture
provisions of RICO and 21 U.S.C. § 848(a) (2)
(1970) (providing the forfeiture of interests acquired
through participation in a narcotics enterprise). In
United States v. Hall, 521 F.2d 406 (9th Cir. 1975), the
court ordered dismissal of an indictment because the
indictment failed to identify the interests subject to forfeiture.
1- 18 U.S.C. § 1341 (1970).
126In United States v. Ladmer, 429 F. Supp. 1231
(E.D.N.Y. 1977), the Government brought a civil action
under RICO claiming that union officers embezzled
union funds by attending lavish conventions at union
expense. The court dismissed the counts on the grounds
JEFF ATKINSON
commission of that misdemeanor, assuming the
defendant is not also being prosecuted under
RICO, is one year imprisonment and a $10,000
fine. Similarly, there are several state offenses
which could constitute a RICO offense where the
maximum state penalties would be substantially
less than the RICO penalties, such as the manufacture
or delivery of ten to thirty grams of cannabis,'
27 the theft of property by threat (extortion)
where the property is valued at less than S150 2
8s
or the keeping of a gambling place,"a Each of
these offenses, under Illinois law, is punishable by
imprisonment for one to three yearsta-about oneseventh
the term of imprisonment under RICO
for exactly the same conduct.
While a true member of organized crime who
engages in acts of violence or major financial crimes
may well deserve the maximum penalties, the same
cannot be said for the small-time operator who
engages in petty gambling, drug dealing, or extortion.
If such persons deserve punishment at all,
the state's penalty appears more appropriate than
the federal penalty.
The Department of Justice does not have any
written guidelines for determining when a RICO
prosecution should be initiated instead of charging
only the lesser predicate offense.1 3 ' The chief of
the Justice Department task force in charge of
RICO cases has said, "We're not going to power
rape nickle and dime cases. It's just common sense
... and good judgment.... We will only hit substantial
conduct."1'3 2 The task force chief explained
that proposed RICO prosecutions are reviewed
several times before an indictment is handed down.
The review requires approval not only by the local
United States Attorney and his assistants, but also
by several of the Justice Department officials in
Washington, including the chief of the unit in
charge of organized crime and racketeering activity.
Despite the avowed good intentions of theJustice
Department and the several levels of review, the
potential for abuse exists. If the government begins
to prosecute small-time violators under RICO, it
could be argued that the defendants are being
that a misuse of union funds was not shown and that a
pattern of racketeering activity was not established.
127 h.i. R-v SrAT, ch. 38, § 705(c) (1975).
' Id. at § 16-1.
" Id. at § 28-3.
1'" All three offenses are Class 4 felonies, which carry
a one to three year sentence. Id. at § 1005-8-1(b) (5).
131 Dowd Interview, supra note 2 1.
132 Id.
subjected to cruel and unusual punishment in violation
of the eighth amendment."a While courts
generally will sustain a sentence if it conforms to
the statutory scheme, t
1
4 the Sixth Circuit has held
that "'[a] sentence which is disproportionate to the
crime for which it is administered may be held to
violate the Eighth Amendment solely because of
the length of imprisonment imposed. ' ' 135 The court
took the action in a case in which an Ohio defendant
had been sentenced to a mandatory ten to
twenty year term for sale of a small quantity of
marijuana. The Supreme Court later vacated and
remanded the case, to be considered in light of a
subsequently passed Ohio statute which imposed
less severe penalties.' The Supreme Court of California,
applying a state constitutional provision
prohibiting cruel and unusual punishment, also
has found disproportionate sentences to be cruel
and unusual. 1
7 The court said the validity of a
" Although the Supreme Court has never heard a
case involving RICO, it has observed that RICO and
other sections of the Organized Crime Control Act contain
"relatively severe penalty provisions." lannelli v.
United States, 420 U.S. 770, 786-87 & n.19 (1975) (involving
gambling conspiracies indicted under 18 U.S.C.
§§ 371 & 1955 (1970)). The Court offers some hope that
it will not always look favorably on attempts to impose
double prosecutions and sentences for the same conduct:
[W]e do not imply that the distinct nature of the
crimes of conspiracy to violate and violation of
§ 1955 should prompt prosecutors to seek separate
convictions in every case, or judges necessarily to
sentence in a manner that imposes an additional
sanction for conspiracy to violate § 1955 and the
consummation of that end. Those decisions fall
within the sound discretion of each, and should be
rendered in accordance with the facts and circumstances
of a particular case.
420 U.S. at 791. This view could have application to
RICO cases in which the Government seeks conviction
and sentencing on both the predicate offense and the
RICO charge, and both offenses arise out of the same
conduct.
'" Note, The Unted States Courts of Appeals: 1974-1975
Term Criminal Law and Procedure, 64 Ga-o. L.J. 167, 574
(1975).
"a Downey v. Perini, 518 F.2d 1288 (6th Cir. 1975),
vacated and remanded, Perini v. Downey, 423 U.S. 993
(1975).
6 423 U.S. 993 (1975).
17 In re Lynch, 8 Cal. 3d 410, 424, 503 P.2d 921, 930,
105 Cal. Rptr. 217, 226 (1971) (holding that a life
sentence for second offense indecent exposure is cruel
and unusual). See also In re Grant, 18 Cal. 3d 1, 553 P.2d
590, 132 Cal. Rptr. 430 (1976) (holding that a drug
statute which proscribed the transportation and sale of
marijuana and imposed a minimum 10-year sentence
with no parole constituted cruel and unusual punishment
under the state constitution). But cf. People v. Broadie,
37 N.Y.2d 100, 332 N.E.2d 338 371 N.Y.S. 2d 471 (1975)
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RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
particular sentence should be determined by
"whether the maximum term of imprisonment permitted
by the statute ... exceeded the constitutional
limit, regardless of whether a lesser term
may be fixed in [a] particular case. ' tsss
An argument similar to the eighth amendment
challenge is that it would be an abuse of prosecutorial
discretion to charge someone under RICO
if the illegal conduct is relatively minor in nature.
The defense might agree that the alleged misconduct
warrants some charge, but it could still argue
that a RICO indictment is abusive if the conduct
complained of is not substantial. A defense based
on abuse of prosecutorial discretion would be hard
to win. Cases where the defense has been successful
have usually involved government abuse on the
basis of racess9 or exercise of free speech. 4" Neither
of these abuses is usually at issue in RICO prosecutions.
Rather, the government might abuse
RICO because it regards the statute as a useful
tool against any criminal, major or minor, or because
it wishes to convict a target defendant even
though the specific conduct for which the person
is charged is minor in nature.
Even if abuse under RICO is not based on the
more traditional factors of race or exercise of free
speech, courts should be willing to examine challenges
based on the eighth amendment or abuse
of prosecutorial discretion.'4 Among the factors
which should be weighed are the severity and
number of offenses, injury to victims and, perhaps,
(holding that drug laws mandating life imprisonment
and, therefore, lifetime parole if on parole release, did
not constitute cruel and unusual punishment).
1 8 Cal. 3d at 419, 503 P.2d at 926, 105 Cal. Rptr.
at 222.
" See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886)
(holding that an ordinance regulating laundries which
was fair on its face was nonetheless illegally enforced
when it was used principally against Chinese).
4°See, e.g., United States v. Falk, 479 F.2d 616 (7th
Cir. 1973) (en banc) (holding in a prosecution for failing
to possess a draft card, the defendant had made a showing
that the prosecution had been initiated because he had
exercised his right of free speech, and that the case should
be remanded for a hearing at which the Government
would have the burden of proving the prosecution was
non-discriminatory). But cf. Oyler v. Boles, 368 U.S. 448,
456 (1962) (the "conscious exercise of some selectivity in
enforcement is not in itself a federal constitutional violation").
141 In United States v. Falk, 479 F.2d at 624, the court
stated: "[W]e wish to note our disapproval of the apparently
too frequent, and often too easy, practice of dismissing
all allegations of illegal discrimination in the
enforcement of criminal laws ......
the defendant's association with organized crime.1 42
Among the most basic notions of due process are
that a punishment should fit the crime and that
the government should be fair in its prosecutions.
Case-by-case analysis by the courts may be difficult,
but necessary, in order to avoid abusive application
of RICO.
VII. CIVIL REMEDIES AND DISCOVERY
One of the features which makes RICO most
unusual among criminal statutes, is its provision
for civil remedies and discovery. Modeled after the
antitrust laws, RICO allows actions by the government
as well as private treble damage actions by
persons injured by racketeering activities. 4 ' In order
to prevent and restrain violations of RICO,
district courts may issue orders including, but not
limited to:
(1) ordering any person to divest himself of any
interest, direct or indirect, in any enterprise;
(2) imposing reasonable restrictions on the future
activities of investments of any person, ...
(3) ordering dissolution or reorganization of any
enterprise, making due provision for the rights
of innocent persons. 1"
A civil proceeding to enjoin violations of RICO is
not rendered criminal in character by the fact that
the same acts also are punishable as crimes. 145
Although injunctions traditionally are an equitable
remedy, it has been held that it is not a prerequisite
for injunction that there be inadequate remedy at
law or "irreparable injury other than that injury
to the public which Congress found to be inherent
in the conduct made unlawful by Section 1962.1 4
6
An advantage to the government in seeking civil
as opposed to criminal remedies is that it is faced
with a lesser burden of proof. The statute does not
specify what degree of proof is necessary before
ordering divestiture, dissolution or restrictions, but
the legislative history indicates that "preponderance
of the evidence" will suffice. 147
"'The defendant's association with organized crime,
like his association with a conspiracy, would tend to
show the severity of the crime and surrounding circumstances.
Caution should be taken, however, not to convict
someone solely on the basis of the status of being a
member of "organized crime."
143 18 U.S.C. § 1964(c) (1970).
' Id. at § 1964(a) (1970).
145 United States v. Cappetto, 502 F.2d 1351, 1357
(7th Cir. 1974), cert. denied, 420 U.S. 925 (1975).
Id. at 1358-59.
14H" earing on Measures Related to Organized Crime Before
the Sub-Comm. on Criminal Laws and Procedures of the Senate
19781
JEFF ATKINSON
Because the proceedings are civil in nature, the
government or private complainant is entitled to
discovery. If the subject of investigation balks at
discovery, the court can use its contempt powers.
In addition to normal discovery, RICO also provides
for a "Civil Investigative Demand," under
which the Attorney General, prior to institution
of criminal or civil proceedings, may require any
person or enterprise to produce "any documentary
materials relevant to a racketeering investigation."'
Such a demand may not require production
of documents when the demand would
otherwise be held to be unreasonable or the material
would be privileged if requested in a subpoena
duces tecum issued by a federal court.1 49 Although
the fruits of an investigative demand would be
about the same as those gained through normal
discovery, the demand gives the Attorney General
more autonomy without court supervision.
VIII. CONCLUSION
RICO was passed by Congress with a laudable
motive: the elimination of organized crime. But
in an effort to catch all possible members of organized
crime and to avoid the constitutional problem
of making a crime out of the status of being a
member of organized crime, Congress passed a
sweeping Act which intrudes on state power and
Comm. on the Judiciao,, 91st Cong., 1st Sess. 388 (1970)
(testimony of Assistant Attorney General Wilson). Without
specifying the standard of proof, the Seventh Circuit
in United States v. Cappetto, 502 F.2d 1351, 1357 (7th
Cir. 1974), cert. denied, 420 U.S. 925 (1975), said, "[Tihe
standard of proof is lower in a civil proceeding than it is
in a criminal proceedingunder any of the statutes we
are considering."
148 18 U.S.C. § 1968 (1970).
149Id .
has great potential for abuse against individual
defendants.
No constitutional challenges to RICO have, as
yet, been upheld. Constitutional challenges may,
however, still be mounted on several grounds.
These grounds include vagueness, double jeopardy
and cruel and unusual punishment. Such challenges
are more likely to be successful the more
abusive a particular RICO prosecution appears to
be.
Substantively, RICO does not create any new
crimes. All offenses which constitute a RICO violation
already are offenses under state and federal
law. What is new under RICO are the harsh
penalties, including forfeiture, and antitrust-type
civil remedies. Such remedies may be quitejustified
and effective against members of organized crime
and persons who commit very serious felonies, but
they are abusive if applied against individual defendants
who commit relatively minor offenses and
have no connection to organized crime. Unfortunately,
the statute makes no distinction between
serious and minor offenders.
An initial step to improve the statute would be
to restrict RICO's application so that it would
apply only to felonies involving physical injury or
financial crimes which involve a large amount of
money, such as $100,000. To be sure, there may
be some members of organized crime who, under
the proposed modification, would not be covered
by RICO, but they still would be covered by the
thirty-two types of federal and state crimes which
make up the definition of "racketeering activity."
More importantly, such restrictions would limit
the potential for the statute's abusive use against
minor offenders. Until such revisions of RICO are
made, we will have to rely upon prosecutorial
discretion and upon careful review by the courts
+POTUS ㅤ +Hillary Clinton
