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Defending against a RICO charge

If you enjoy watching old black-and-white TV shows on your California classics channel, you likely are a big fan of The Untouchables, the 1959-1963 series about Elliott Ness and the other intrepid G-men who pursued such Prohibition-era gangsters as Al Capone. If you are of a certain age, you may even remember seeing the original of this rousing series where the good guys always won and the bad guys always went to jail.

While it is true that the Feds always have and still do go after alleged racketeers, real life is not so simple or cut and dried. Plus, the definition of racketeering has changed dramatically over the decades. Much of this is due to the passage of the Racketeer Influenced and Corrupt Organization Act in 1970. Its original purpose was to curtail Mafia activities, but the Feds often use RICO today to go after people alleged to have engaged in many illegal activities including the following:

  • Money laundering
  • Embezzlement
  • Mail fraud
  • Counterfeiting
  • Bribery

RICO proof

If you face charges for a RICO violation, you should know that the federal prosecutor must prove all five of the following in order to convict you:

  1. That an enterprise existed
  2. That the enterprise employed you or you associated yourself with it in some way
  3. That the enterprise and you committed illegal acts called predicates that affected interstate commerce
  4. That the enterprise and you committed at least two predicates within a decade
  5. That these predicates constituted a racketeering pattern

Defining enterprise

The RICO statutes assign a very broad meaning to the word enterprise. While it can be a normal business organization such as a corporation, partnership, LLC, etc., it also can be a very informal “association” of people who share a common illegal purpose.

Defining racketeering pattern

In most cases the prosecutor attempts to prove a racketeering pattern by means of showing that you and the enterprise committed two or more predicates within a 10-year period. This is the definition of a closed-end pattern. However, the prosecutor has a second option. (S)he can attempt to prove an open-end pattern. To do this, (s)he need only prove that you and the enterprise committed one predicate, but (s)he must also prove that you intended to commit additional predicates in the future.

RICO penalties

A RICO case is very serious, very complex and very difficult to prove. That is why federal prosecutors usually bring several different racketeering charges against you at the same time on the implied theory that if the jury acquits you of one, it still may convict you of others. RICO penalties upon conviction are very severe. You can face up to 20 years in federal prison for each conviction. You likewise can face a $250,000 fine for each conviction. Alternatively, you can face a fine equal to twice the amount you and the enterprise accumulated during your racketeering pattern.

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