man upset about being charged with a rico crime

Racketeering: Why You Need a RICO Defense Attorney

Racketeering is a broad term for any structured illegal acts to gain profits. These activities fall within the purview of the Racketeer Influenced and Corrupt Organization Act. The law specifically makes it illegal to take control or ownership of an enterprise through criminal means and covers the definition, limitations, and punishment for these types of crime. 

A Brief History of Racketeering Before the RICO Act

The origins of organized crime in the United States date back to the 19th century, during the rise of street gangs in cities like New York and Chicago. These gangs expanded their usual criminal activities, getting into businesses, trading illegal contraband, gambling, prostitution, extortion, and other crimes. 

One notable example of early racketeering activities is the protection racket. It is a form of extortion. Gangs or other criminal organizations pose as protectors of legitimate businesses from other gangs in exchange for the payment of a “protection fee” monthly or weekly. Failure to pay for “protection” results in those seeking to provide “protection” committing crimes against the property of or persons refusing to pay the protection. Depending on the type and size of the organization, these schemes can become sophisticated to the point that they resemble the collection of legal taxes. 

Despite their presence in the cities during the period, most gangs were considered small-time. Their influences only extended to specific neighborhoods and law enforcement treated them nuisances rather than significant threats. 

Many historians believe that criminal organizations experienced massive growth during the Prohibition Era. The country-wide ban on alcohol generated a great demand for illicit liquor, creating a market that proliferated throughout the country. Criminal syndicates operated bootlegging outfits (illegally producing alcoholic drinks), smuggling rings, and speakeasies. With more funds at their disposal, these gangs grew more powerful, often to the point that they could leverage control over certain law enforcement elements. 

Immigrants from Sicily also brought the concept, structure, and operational conduct of “mafias” to the shores of the United States around this time. This type of organized crime operated as a “family,” with complex hierarchies and a heavily-enforced code of silence to minimize entanglement with law enforcement. La Cosa Nostra, also known as the Mafia, rose to prominence and began expanding throughout several cities, including New York, Chicago, Las Vegas, and other populated urban areas. Their operations included illegal gambling, prostitution, labor union infiltration, extortion, and white collar crime.

Organized crime in the country persisted through the 20th Century and became a growing and ever-present problem for local and federal authorities. By the 1960s, gangs, mafias, and cartels had become a major concern. At that point, no laws existed to specifically combat organized crime. The existing racketeering laws were insufficient to uproot the threat. Government caught and prosecuted single actors of criminal organizations, but without the power to move up the chain of command, police and prosecutors were unable to sustain success in battling organized crime.

The Introduction of the Racketeering Influenced and Corrupt Organizations or RICO Act

The Racketeer Influenced and Corrupt Organizations, or RICO Act, was introduced as Title IX in the Organized Crime Control Act of 1970. The statute focuses specifically on combating the structured activities of criminal organizations, providing law enforcement with powerful tools to prosecute every level of these organizations, damage or dismantle their entire operations, and convict the leadership. 

The Act outlines and prohibits activities related to criminal enterprise operations. It also defines what constitutes racketeering acts and how they differ from other kinds of criminal activities. 

Under the Act, criminal and civil RICO charges may apply to any individual who has committed at least two acts of racketeering activity within ten years with a provable pattern of criminal activity. 

There are 35 racketeering offenses defined by the RICO Act, known as predicate crimes. Some common examples are: 

  • Gambling
  • Murder
  • Kidnapping
  • Extortion
  • Arson
  • Robbery
  • Bribery
  • Dealing in obscene matter
  • Dealing or trafficking a controlled substance or chemical
  • Bribery
  • Counterfeiting
  • Theft
  • Identity theft
  • Embezzlement
  • Mail and wire fraud
  • Obstruction of justice
  • Slavery
  • Money laundering
  • Commission of murder-for-hire
  • Embezzlement of union funds
  • Bankruptcy fraud or securities fraud
  • Criminal copyright infringement
  • Human smuggling
  • Acts of terrorism

Individuals found guilty of criminal RICO violations can be fined up to $250,000 and sentenced up to 20 years in prison per count. Additionally, law enforcement agencies will seize any material gains and interests that can be attributed directly to the pattern of racketeering activity.

Racketeering Enterprise

The RICO statute requires the existence of an ongoing racketeering enterprise that exists separate from criminal activity. The enterprise must possess the characteristics of an ongoing entity.  Therefore, such an enterprise may be a business, labor union, fraternal organization, or any other associations-in-fact. Traditional organized crime falls within the association-in-fact category.  

Civil RICO Charges

While the same list of crimes and proof of a pattern of racketeering serve as the basis for civil RICO claims, these claims only require the preponderance of evidence standard of proof to result in liability. This is in contrast to criminal RICO charges, which require proof of the elements beyond a reasonable doubt of the elements of the crime. 

Civil RICO charges may result in substantial monetary liability. Defendants found liable will pay the plaintiff up to three times the amount of damages calculated by the jury and potentially any legal fees and costs imposed by the court. 

RICO Statutes of Limitations

Civil RICO claims must be brought forward within a reasonable timeframe for a chance of conviction. The Supreme Court held that the suit must be filed within four years for the RICO statute to apply. This is calculated from the day the plaintiff realizes the damages caused by the crimes. The statute of limitations for a criminal RICO charge is five years.

Criticisms and Potential Abuse of Racketeering Laws

Although RICO was instrumental in dismantling and reducing the influence of organized crime in the US, it has received serious criticism. Controversies surrounding the law began right after it passed and persist to this day. 

Broad Reach

Many have criticized the broad language and extensive provisions of the Act. Since parts of the law are open to interpretation, many fear that state and federal prosecutors could and do abuse it. 

Additionally, most items on the listed federal and state crimes within the purview of racketeering are also white-collar crimes. In certain instances, perpetrators of white-collar or other crimes may be punished under RICO law if they commit predicate crimes twice within ten years through an organization or enterprise.

Potential for Misuse in Civil Cases

The Act allows both criminal prosecution and civil RICO actions and can be used to target racketeering activities of illegal businesses. However, since an element of the Act is the existence of an enterprise or organization, businesses and corporations found to have committed crimes falling under racketeering but are otherwise legitimate entities, are subject to RICO civil suits. This has resulted in the proliferation of such suits, sometimes specious in nature, seeking to benefit from the triple damage provisions of civil RICO. 

Forfeiture of Assets

In a criminal RICO prosecution, the state or federal government can seize a defendant’s assets before trial, with the release of those assets occurring only upon a verdict of not-guilty. This includes any property derived from the racketeering activity. 

Proponents of the law have defended pre-trial forfeiture as a necessary concept to freeze illegitimate business operations before they could be moved, dismantled, or otherwise hidden. However, many critics of the law argue that this constitutes a violation of due process. 

Defense Against Criminal or Civil Racketeering Charges

Due to the broad wording and complexities of the RICO Act, it is important that you immediately enlist the help of an experienced RICO defense lawyer should you be charged with civil or criminal racketeering. 

To be successful in a criminal RICO prosecution, the government must prove beyond a reasonable doubt these five elements: 

  • The defendant was associated with an enterprise,
  • The defendant knowingly committed, or aided and abetted in committing, at least two acts of racketeering activity,
  • The two acts of racketeering activity were connected by a common scheme, plan, or motive constituting a pattern of criminal activity,
  • By committing the two or more connected acts, the defendant participated in conducting the enterprise’s affairs, and
  • The enterprise was involved in or affected interstate commerce. 

There are several different alternative theories of prosecution under RICO. The above elements are illustrative. An experienced RICO defense attorney can discuss the elements applicable under specific factual situations.

Similarly, there are several causes of action available under civil RICO. An experienced RICO attorney can provide specific elements based on the facts of the case. 

One of the most common defense strategies for individuals facing racketeering charges is challenging the actual occurrence of the alleged predicate acts. An experienced RICO defense lawyer may gravitate toward countering proof that the alleged underlying criminal acts even happened.

Should that not be possible, the defense attorney can then pivot to denying that the acts form a pattern of racketeering. Predicate crimes must have elements linking them to form a pattern. Proof of patterns can be a similar modus operandi or proof of continuation of perpetrated crimes, i.e., using the gains from previous offenses to conduct future ones. They can also involve repeated victims, targeting victims with the same profile or committing crimes with the same partners. 

Intent can be a deciding factor in a RICO case. Even in the presence of collaboration, federal, state, and civil prosecutors would have to prove beyond a reasonable doubt that there was intent to further the goals of the racketeering enterprise and to engage in that enterprise.

As in all criminal cases, there may exist the possibility of excluding evidence that was obtained through a violation of law or a violation of constitutional rights. These challenges usually arise from violations of the Fourth Amendment search and seizure provisions. 

How Richard Serafini Can Help with Civil or Criminal RICO Charges

RICO charges are serious, time-sensitive matters. Again, each criminal RICO offense can result in up to $250,000 in fines and 20 years in jail. This excludes other civil or criminal charges for each proven predicate crime. Defendants are subject to significant monetary damages and face decades in prison. Additionally, legitimate business interests can be affected or seized. 

RICO civil actions can result in triple damages for successful actions.  Richard Serafini handles both plaintiffs’ and defendants’ representation in civil RICO actions.  

The Serafini Law Office can work with you to attain the best possible outcome for your civil or criminal RICO case. Our team will tirelessly protect your interests.

Mr. Richard A. Serafini has been a RICO lawyer for over 30 years. Previously, he served in the Fraud Section and Strike Force in the Organized Crime and Racketeering Section of Main Justice in Washington, DC. While working for the Department of Justice as a senior prosecutor, he represented the U.S. in the largest and most complex cases in federal courts nationwide. He knows RICO and other organized crime laws thoroughly and is your best choice to formulate aggressive RICO litigation strategies to help you achieve the best results.

Our law firm currently offers legal services to the following cities and states: Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Florida, Pennsylvania, and New York. 

Contact us at (754) 223-4718 for a free consultation. 

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