Posted by: birdsongslaw | October 2, 2008

A Barry Law Student’s Analysis of The RICO Act

From time to time Birdsong posts on his blog, with their permission, well written and interesting student papers that he has overseen as part of a student’s directed research project.  The following paper is written by graduating 3L student Christopher Dasti.  He has written on the RICO Act and has analyzed that statute against the framework of an actual, ongoing federal RICO indictment.  This will be of interest to students of white collar crime.

Enjoy:

 

The Racketeer Influenced & Corrupt Organizations Act

How RICO changed the way the Justice Department investigated and prosecuted organized crime and how RICO is used in the battle against La Cosa Nostra

 

Copyright April 10, 2008

Written by:

Christopher J. Dasti

A Directed Research Project For:

 

Professor of Law

Leonard Birdsong

 

I.          INTRODUCTION

The Racketeer Influenced and Corrupt Organizations Act (hereinafter “RICO” or “RICO Act”),[1] 18 U.S.C. § 1961 et seq., is one of the most complex, powerful, and interesting statutes in the United States Code.  RICO prosecutions are among the most carefully and meticulously planned, investigated, and executed matters in the criminal justice system.  RICO cases often take years to build and involve multiple law enforcement agencies spanning from the Federal Bureau of Investigation (“FBI”) and Drug Enforcement Administration (“DEA”) to local law enforcement agencies.  RICO requires thorough investigations by law enforcement agencies and well executed trial strategies by prosecutors.

This paper will examine RICO, starting from the rise of organized crime in the early 1900s, which led to the enactment of RICO in 1970, RICO’s statutory structure will be discussed, and finally this will paper lead into a practical application of RICO stemming from a 2005 RICO indictment from the United States Attorney’s Office for the District of New Jersey.  The goal of this paper is to one day use it as a writing sample in connection with this author’s application to the Department of Justice.

RICO is commonly recognized as the “Mafia statute,” however RICO’s origins are largely unknown.  The legislative history of RICO began in the mid to late 1960s, but the history of America’s organized crime dates back to before prohibition.[2]  To understand the reason for RICO’s enactment, one must first examine the rise of organized crime in the early 1900s where racketeers were common and corruption a way of life in America’s cities.  RICO helped turn the corner on the Justice Department’s battle against organized crime.  Through the hard work of Congress, G. Robert Blakey, and the Department of Justice, RICO was organized, drafted, and codified to crack down on organized criminal enterprises and the patterns of crimes they engage in. 

II.        THE BIRTH OF RICO

 

A.        The “Golden Age”

 

            Before the RICO Act can be analyzed, the discussion must begin with why there was a need for such legislation.  Ask any American to describe organized crime and undoubtedly their answer will elicit images reflecting movies such as The Godfather, Goodfellas, TV shows such as The Sopranos, and historical figures such as John Gotti.  The Mafia or La Cosa Nostra (Italian for “This Thing of Ours”) is unmatched in the organized crime world and in large part the mafia sets the bar for other criminal organizations.

            During the early 1900s immigrants came into the United States through Ellis Island.  Many of these immigrants were law-abiding citizens looking for a fresh start in The New World.  However, a select few Italian immigrants looked to start a criminal empire that was a mere continuance of the long standing criminal world that existed in Italy, specifically Sicily.[3]

La Cosa Nostra established crime families in nearly every major U.S. city stemming from Manhattan to San Francisco.[4] The strongest region of La Cosa Nostra’s power is in New York City.  New York City has five mafia crime families; all are named after their Godfather founders: the Lucchese, Bonnano, Colombo, Gambino and Genovese, crime families.  The “Five Families” as they are collectively known, control areas or territories within and surrounding America’s biggest city.  The mafia engages in various forms of crime ranging from gambling, loansharking, extortion, protection rackets, union control, murder, prostitution, and counterfeiting.[5]  During the early 1900s the mafia, in large part due to the Eighteenth Amendment to the U.S. Constitution,[6] flourished through prohibition by enabling the public’s need for alcohol by running speakeasies and rumrunners throughout the country.

            In the 1900s law enforcement officials that were not corrupted by organized crime and attempted to crackdown on the mafia had a difficult time making progress.  First, the mafia’s sacred code of omerta` forbade mafia members from discussing the organization with anyone outside of the family.[7]  Secondly, indictments of mafiosi were usually of low-level members and didn’t affect the criminal organization whatsoever due to the mafia’s family organization.  The mafia’s military-like hierarchy is vital to keeping the organization intact when lower-level members are lost, either to murder or convictions. 

La Cosa Nostra’s family hierarchy is very intricate and contains explicit organization, authority, and power designated to each level.  At the top of the crime family is the boss or Godfather.  The boss gives orders for murders and receives “tribute” payments from those under his control for illegal activities the family conducts.[8]  Second in command to the boss is the underboss, who is in charge of assisting the boss in the day-to-day activities of the family.[9]  Next is the consigliere, a counselor and advisor to the boss for issues relating to family matters and disputes with other crime families.[10]  Below the top three positions are captains or capos who are in charge of “crews” of soldiers, or low-ranking made men and associates, non-made members of the family.[11]  The crews are in charge of running criminal activities and pay tributes to their capos and the capos pay their tributes to the boss of the family. 

Prior to RICO it was difficult to indict the bosses of families, due to their position in the family.  The boss, because he is head of the family, rarely commits a crime by his owns hands.  The boss gives orders for his lower-level members to commit crimes to increase the wealth and power of the family.  Thus, RICO’s primary objective is to strike at the heart of the mafia’s crime family, the boss.

The mafia’s hierarchy isn’t limited to each family.  The mafia, like a Fortune 500 company, has a board of directors.  In late 1931 on heals of the Castellammarese War[12] reputed founder of what is now the Italian-American Mafia, Salvatore Lucania, better known as Charles “Lucky” Luciano along with former mafia boss of the family that bears his name, Joe Bonanno, founded The Commission.[13]  The Commission is a collection of mafia family bosses from around the country that meet together to settle family disputes, establish territories for families throughout the country, and regulate mafia policies.[14]  Luciano’s creation of The Commission helped establish that American La Cosa Nostra families were independent entities from their Sicilian counterparts.  The Commission led La Cosa Nostra in their own direction, one that law enforcement would never confuse as mere subsidiaries of the Sicilian mafia.[15]

From the early 1900s to the later part of the century the mafia’s wealth and power grew at a staggering rate.  Confidential FBI reports in 1980 acknowledged that La Cosa Nostra was one of America’s most successfully growing industries, and nationwide in a conservative estimate, La Cosa Nostra was making about $25 billion a year.[16]  Without question nearly three-quarters of 20th Century was indeed the “Golden Age” of La Cosa Nostra, as their influence and power extended from narcotics importation to influencing and corrupting political figures, law enforcement, and judges.  In latter part of the 20th Century however, Congress and the Department of Justice would strike fear into La Cosa Nostra and that fear would come from a single acronym, RICO.

B.        Congress & The Department of Justice Take Action

Prior to the enactment of RICO, the Department of Justice had no legislation in place exclusively for prosecuting complex criminal organizations.[17]  Federal prosecutors were limited to indicting members of criminal organizations individually which lead to virtually little or no impact on the criminal enterprise itself.[18]  In the mid 1960s President Lyndon Baines Johnson[19] sought to end the criticisms that labeled Democrats as being soft on crime.  In 1965, President Johnson created the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society,[20] headed by Attorney General Nicholas de Belleville Katzenbach.[21]  The Katzenbach Commission’s goal was to develop new crime-prevention strategies,[22] which begun the momentum for the enactment of RICO.  G. Robert Blakey[23] signed on as an organized crime consultant and had a plan to cripple the mafia and organized crime. The Katzenbach Commission disbanded in 1967 and its recommendations to Congress eventually lead to the Organized Crime Control Act of 1970.[24] 

            Prior to the Organized Crime Control Act of 1970, Blakey assisted Senator John McClellan[25] in drafting a groundbreaking new law in 1968 that legalized wiretapping and bugging.[26] This new statute, known as Title III, a provision of the Omnibus Crime Control and Safe Streets Act, for the first time Congressionally legalized electronic eavesdropping.[27]  With RICO drafted and codified subsequent to Title III, it would come to show that electronic wiretaps and bugs would help to create some of the most damning evidence against RICO defendants. 

            Blakey and McClellan revolutionized the way the Department of Justice investigated and indicted organized crime.  RICO was enacted to indict the enterprise itself, not just its mere associates.  RICO’s framework allowed the Department of Justice to indict the Godfather or Boss of the organized crime enterprise and thus strike at the core of the illegal entity itself. 

Prosecuting mafiosi would have little affect because of omerta, ´ the mafia’s code of silence.  Blakey and McClellan knew mafia turncoats would be a vital piece of successful RICO prosecutions and devised a way to solve the problem of omerta’ by designing the Witness-Protection Program.[28]  The Witness-Protection Program was aimed to offer immunity for cooperating witnesses and protect them from mob retaliation.[29] 

            RICO became law in 1970[30] and G. Robert Blakey and Senator McClellan’s complex mafia weapon was ready for federal prosecutors to use at will.  However, the complexity of the statute along with the change in thinking it required among law enforcement resulted in RICO to go virtually unused in its infancy.  In 1979 Neil Welch, the director of the FBI’s New York office, accepted, the then professor of law at Cornell, G. Robert Blakey’s invitation to have two of his top FBI agents in the field of organized crime attend a seminar with prosecutors on how to use RICO.[31] 

The essence of Blakey’s seminar was two-fold.  First, RICO was to be used in conjunction with Title III bugs and wiretaps.[32]  Law enforcement must begin their investigations with enough probable cause needed to obtain the first wiretap, then they must use the information gained from the first wiretap to get a second, then from the second, get a third, and so on.[33]  There is no defense against wiretaps, as the mafiosi on the wiretaps would incriminate themselves, their associates, and their corrupt enterprise.  Second, Blakey stressed, investigators and prosecutors must stop wasting time on low-level mobsters and wannabes, and focus on the mafia family’s royalty: the bosses; underbosses; consiglieres; and capos.[34]  Blakey instructed investigators to build the evidence into “patterns of racketeering activity.”[35]  If there was evidence of a murder, more investigation must be done to establish the evidence of multiple murders and series of other crimes, in order to establish a RICO indictment and almost surely a conviction.[36]

            The foundation and rationale of RICO can be traced to one of Blakey’s favorite movies, Little Caesar.  In the movie, Edward G. Robinson is cast as a thug named Caesar Enrico “Rico” Bandello.  Rico, a killer climbing his murderous ways to the top of a big-city gang, was subservient to the big-city’s underworld king, “Big Boy.”  The end of the movie leaves Rico gunned downed by police, after which Rico uttered one of Hollywood’s most famous lines, “Mother of Mercy—is this the end of Rico?”[37]  Ironically that line in Little Caesar is what many believe led Blakey to the title of the statute, which “coincidentally” lead to the now famous acronym, RICO. 

In his seminar Blakey focused on how in Little Caesar the police got the low-level mobster, Rico, and the boss of the gang, “Big Boy” got away because he was never investigated.[38]  Blakey’s analogy regarding Little Caesar was a way of stressing to his audience of prosecutors and two FBI agents that the purpose of RICO was to change the end of the movie, to get “Big Boy,” the Boss.

            Blakey’s seminar was a success.  The two FBI agents returned to their New York office enlightened and relayed Blakey’s vision and understanding of RICO to their Organized Crime Division.  Before long, the FBI along with the U.S. Attorney’s Office would become well versed in the application and investigatory powers of RICO.

III.       RICO’S STATUTORY CONSTRUCTION

            The RICO Act is set forth in Title 18 of the United States Code, Sections 1961 through 1968.  RICO was codified in 1970 as part of the Organize Crime Control Act.[39]  The statute sets forth definitions of what constitutes a RICO enterprise,[40] RICO predicate acts,[41] RICO’s prohibited activities,[42] criminal penalties[43] and civil remedies.[44]  The aforementioned sections will be discussed and explained in detail.  The four latter sections of RICO, Sections 1965 through 1968, are brief and deal primarily with civil procedural issues, thus those sections are briefly explained for completeness.  Section 1965 sets forth venue and process of parties involved in RICO proceedings.[45]  Section 1966 sets forth the expedition of civil actions brought by the government.[46]  Section 1967 authorizes the court to close certain civil RICO proceedings to the public.[47]  Section 1968 gives the Attorney General the authority to issue civil investigative demands.[48]

A.        RICO’S Predicate Acts

 

            RICO’s predicate acts are set forth in the definition of “racketeering activity.”[49]  RICO’s predicates include both state and federal offenses.[50]  The numerous acts of racketeering activity defined in RICO are referred to as “predicate acts” because they create the basis for liability under RICO.[51]  RICO’s predicates do not have to be offenses upon which the defendant was convicted.  Rather, RICO’s predicate acts require that the charges are such that the defendant could be convicted.[52]  The only requirement for the predicate acts is that they are “chargeable” or “indictable” under state or federal law.[53]  The predicates listed under RICO’s “racketeering activity” include nine state offenses: murder; kidnapping; gambling; arson; robbery; bribery; extortion; dealing in obscene materials; and dealing in controlled substances (narcotics) or listed chemicals defined in section 102 of the Controlled Substances Act.[54]  The state crimes must be felonies chargeable under State law and punishable by imprisonment longer than one year.[55]  There are approximately fifty-five federal crimes that are considered RICO predicates.  The most notable federal crimes listed as RICO predicates that are alleged in the indictment discussed infra are: extortion credit transactions;[56] interference with commerce by threats or violence;[57] interstate travel or transportation in aid of racketeering;[58] and illegal gambling businesses.[59]

B.        Establishing a Pattern of Racketeering Activity

            One is not guilty of violating RICO by merely committing one predicate act.  RICO’s purpose is to punish patterns of racketeering activity.  Under Section 1961(5) the statute defines “patterns of racketeering activity” as “at least two acts of racketeering activity within a ten-year time period.”[60]  Therefore, a defendant must commit two of RICO’s predicate acts within a ten-year period to be in violation of RICO.  The Supreme Court has held that proving two predicate acts within a ten-year period is not enough for a violation of the statute if the acts themselves are “isolated” thus not constituting a pattern.[61]  The Supreme Court requires that the acts of racketeering be continuous and interrelated.[62]  RICO predicates must be in furtherance of a central purpose or scheme, not sporadic criminal activity.  The Supreme Court further held that in order to prove a pattern of racketeering activity the government must establish a relationship between the predicate acts and a continuity of those acts.[63]  The Supreme Court’s interpretations of RICO’s pattern of racketeering element is to ensure that the statute is used to punish criminal “enterprises” that engage in “patterns of racketeering activity” to further the “enterprise.”[64]

C.        Enterprise Requirement

            As stated, RICO stands for Racketeer Influenced and Corrupt Organizations.  The corrupt organization or “enterprise” requirement of RICO is to prohibit criminal enterprises from engaging in patterns of racketeering activity.[65]  Section 1961(4) defines an enterprise broadly 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.”[66]  RICO’s broad enterprise definition allows the statute to include any enterprise engaging in illegal activity that affects interstate or foreign commerce.[67]  A RICO enterprise must exist independently from the racketeering activities it engages in, the persons associated with the enterprise must have a common or shared purpose, and there must be some form of continuity of structure or personnel.[68]

            In a RICO case the plaintiff must prove the existence of an enterprise through evidence of “on going organization, formal or informal.”[69]  The plaintiff must also prove that the members of the enterprise “function as a continuing unit.”[70]  Courts have allowed the plaintiff to prove “continuity” with evidence of routine commission of the same types of predicate acts.[71]  Connection to a RICO enterprise is satisfied if the evidence is sufficient to establish either that the defendant is “enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise” or “the predicate offenses are related to the activities of that enterprise.”[72]

 

 

 

D.        RICO’S Prohibited Activities

            RICO prohibits four types of conduct under Section 1962: (a) using or investing proceeds from a pattern of racketeering activity;[73] (b) acquiring an interest in a business through a pattern of racketeering activity;[74] (c) participating in the conduct of the affairs of an enterprise that engages in a pattern of racketeering activity;[75] and (d) conspiring to violate any or all of the previous three prohibited forms of conduct.[76]  Subsection (a) of Section 1962 is aimed at the “classic Mafia investment case envisioned by Congress,”[77] such as where “organized criminals gain control of an uncorrupted business by investing profits from gambling or other illegal activities.”[78]  Section 1962(a) makes it unlawful for any person to “use or invest” any income from a pattern of racketeering activity in an enterprise.[79]  There are four essential elements in 18 U.S.C. § 1962(a): (1) income derived from a “pattern” of racketeering activity or the collection of an unlawful debt; (2) the use or investment of income in the acquisition, establishment, or operation by a defendant; (3) of an “enterprise” (4) engaged in or affecting interstate commerce.[80]  Section 1962(a) is meant to deter and punish infiltration of legitimate business by means of “dirty money” derived from racketeering.[81]  The clearest example of a 1962(a) violation is an organized crime figure investing money derived from racketeering activity, such as narcotics operations, into an otherwise legitimate business such as bars, night clubs, or real estate ventures.  Section 1962(a) requires the government to prove that the defendant committed the predicate acts alleged and invested the income from those predicate acts in a target manner.[82]

The second sentence of Section 1962(a) established an exception to buying securities on the open market.  The exception states that securities bought on the open market which amount to less than one percent of the securities of a class of stock is not unlawful.[83]  The “one-percent exception” may be limited in scope because, as discussed, Section 1962(a) not only applies to racketeering income but also to proceeds of that income.[84]  Thus, Section 1962(a) may be applied to money obtained from racketeering, invested within the one-percent exception and once the stock is sold reinvested outside the exception.[85]  Due to the fact that organized criminals deal almost exclusively in cash, prosecutions based solely on Section 1962(a) are difficult because proof of a Section 1962(a) violation requires the tracing of the money derived from the pattern of racketeering activity into the acquisition of interest in a business.[86]

Section 1962(b) cases arise ideally in gambling and loansharking cases when the “debtors” cannot meet their payments and the defendants as “creditors” take an interests in the “debtors” legitimate business.  There are three essential elements of Section 1962(b): (1) the acquisition or maintenance through a “pattern” or racketeering activity or the collection of an unlawful debt by a defendant; (2) of an interest in or control of an “enterprise”; (3) engaged in or affecting interstate commerce.[87]  In 1962(b) prosecutions the defendant is alleged to have “muscled” his way into a business or businesses through loansharking, bribery, extortion, or fraud.[88]  In contrast to a Section 1962(a) prosecution, Section 1962(b) prosecutions do not require that the defendant received proceeds from the pattern of racketeering activity.[89]

            Section 1962(c) criminalizes persons from being members of an enterprise that engages in patterns of racketeering.  Under Section 1962(c) the four elements are: (1) employment by or association of a defendant with (2) an “enterprise” (3) engaged in or affecting interstate commerce, (4) the affairs of which are “conducted by or participated in” by a defendant through a “pattern” of racketeering activity or the collection of an unlawful debt.[90]  The Supreme Court held that the language “conduct or participate” in Section 1962(c) requires “some part in directing affairs” through “operation or management” of the enterprise.[91]  The issue of what constitutes a RICO “enterprise” is a highly litigated issue.[92]  As discussed, a RICO enterprise “includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”[93]  A Section 1962(c) violation is twofold, first there must be a RICO enterprise and second the said enterprise must engage in a pattern of racketeering activity.  RICO’s pattern of racketeering activity, as discussed previously, requires that the predicate crimes be continuous and interrelated.[94]

E.        RICO Conspiracy

It is “unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c)” of Section 1962.[95]  Unlike the federal conspiracy statute, 18 U.S.C. § 371,[96] a RICO conspiracy doesn’t require the defendant make an overt act in furtherance of the conspiracy.[97]  The Supreme Court has held that “partners in the criminal plan must agree to pursue the same criminal objective,”[98] even if each conspirator does not agree to commit each and every part of the substantive offense.  Therefore, Section 1962(d) allows the government to prove a RICO conspiracy by prosecuting individuals who have not committed any RICO predicates as long as the government proves the defendant(s) “intended to further an endeavor which, if completed, would satisfy all of the elements of the substantive criminal offense.”[99]  Distinguishable from a Section 371 conspiracy, a RICO conspiracy is not an agreement to commit a specific offense or to defraud the United States but rather to violate RICO provisions.[100]  For example, defendants would conspire to violate RICO by agreeing to “conduct or participate” in the affairs of an enterprise through a pattern of racketeering activity, in violation of Section 1962(c).  Courts have held that a defendant violates Section 1962(d) when the defendant agrees to violate a substantive RICO offense, regardless of whether the defendant personally agreed to commit the predicate crimes or actually did participate in the commission of those crimes.[101]

 

 

F.        RICO’S Criminal Penalties & Civil Remedies

            Criminal RICO sentences can be up to twenty years imprisonment or when the predicate act requires it, life imprisonment.[102]  When the RICO charge is predicated on “racketeering activities” that are federal crimes also alleged in the indictment the defendants face increased cumulative statutory penalties as well as the possibility of consecutive sentences.[103]  The most important power Section 1963 gives the government is forfeiture.  Under the forfeiture provision, the government is empowered to seek pre-indictment restraining orders[104] and forfeiture of property the defendant transferred to third parties.[105]  The harsh sanctions under Section 1963 permit the government to assault the economic foundation of the racketeering activities.[106]  Pre-indictment “seize and freeze” orders may be entered by the court if: (1) the government gives notice to any persons with an interest in the property; (2) there is substantial probability that the property will be deemed forfeitable and that it would become unavailable without the court’s order; and (3) the need to preserve the property outweighs any hardship the court order may cause.[107]

            In civil proceedings the court may order the RICO enterprise to be dissolved and reorganized,[108] persons to divest interest in the organization,[109] and place restrictions on future activities.[110]  Similarly to the civil provisions in the Clayton Act,[111] RICO permits the awarding of treble damages in civil RICO actions as well as reasonable attorney’s fees.[112]  After a criminal RICO proceeding, the government may still bring a civil RICO claim against the defendant to recover the proceeds of the RICO enterprise.[113]  The defendant is estopped from denying the allegations of the criminal offense in any subsequent civil proceeding brought by the government.[114]

G.        Statute of Limitations

            There is no explicitly mentioned statute of limitations for either criminal or civil actions listed in RICO.[115]   However, the Supreme Court has held that for civil actions RICO’s statute of limitations is four years.[116]

Lower courts have used three types of rules to determine when the statute of limitations begins to run for civil RICO actions: (1) the “injury discovery” rule; (2) the “injury and pattern discovery” rule; and (3) the “last predicate act” rule.[117]  The “injury discovery” is the prevailing rule for civil RICO actions.[118]  The “injury discovery” rule states that the statute of limitations begins to run when the plaintiff “knew or should have known” of the injury underlying their cause of action.[119] 

For criminal RICO actions the statute of limitations is five years[120] and begins to run upon the completion of the most recent predicate act.[121]  Thus, RICO can literally revive the dead.  In cases where the “racketeering activity” would otherwise be time-barred, RICO allows prosecutors to proceed with a RICO case that is built upon time-barred claims, so long as the some predicate act is not time-barred.[122]

IV.       ANALYSIS OF A RICO INDICTMENT

 

In an effort to better understand the complexities of RICO this author has decided to analyze an existing RICO indictment.  The contained RICO analysis comes from the use of a 2005 RICO Indictment out of the U.S. Attorney’s Office, for the District of New Jersey.  Though the Indictment was unsealed nearly three years ago, the case has yet to go trial. 

In U.S. v. Dentico, et al. the instant Indictment names members and associates of the Genovese Crime Family of La Cosa Nostra.  The Indictment lists sixteen Genovese Crime Family members ranking from associates to captains.  The central figure of the Indictment is Lawrence Dentico.  Dentico, since the 1997 conviction of family boss Vincent “chin” Gigante, has been seated on the governing body of the Genovese Crime Family, known as “The Administration.”[123] 

Also named in the Indictment are Joseph Scarbrough, Michael Crincoli, Gregory Richardson, Joseph William Napolitano, Russell Fallacara, John  Yeswita, Joseph Bruno, John Dennis, John Greco, Michael Borelli, Peter Grecco, Ludwig Bruschi, Alex Conigliaro, Steve Pastore, and Nicholas Ladagona.  This analysis will attempt to prove the Government’s case against Defendants by proving they are a RICO enterprise and they committed numerous predicate acts of racketeering.

A.        The Existence of a RICO Enterprise

 

Before the Government can attempt to prove Defendants’ violated RICO, there must be sufficient proof that Defendants are members of an illegal enterprise.  The RICO “enterprise” is the Genovese Crime Family of La Cosa Nostra that operated in the District of New Jersey which constitutes an enterprise as defined by 18 U.S.C. § 1961(4).[124]   The statute defines “enterprise” as including “any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”[125] 

Clearly a Cosa Nostra Crime Family is not a legal entity and thus the Government must prove that the RICO “enterprise” falls under the last phrase of the definition, “group of individuals associated in fact.”  In RICO’s infancy the Supreme Court established that the statute includes both legitimate and illegitimate enterprises.  The Supreme Court held that if Congress intended to limit RICO to only legitimate enterprises it would have included the word “legitimate” in the text of the statute.[126]  In order to be associated-in-fact, the enterprise must have a shared purpose, continuity, unity, identifiable structure, and some goals separate from the predicate crimes themselves.[127]  The Government would argue that by Defendants engaging in illegal activity, their purpose was to the further the power and wealth of the enterprise, the Genovese Crime Family.  The Government must show that the Genovese Crime Family is an “entity” by “evidence of an ongoing organization, formal or informal, and by evidence that the various associates functioned as a continuing unit.”[128] 

The evidence used to prove such an “enterprise” could be relatively weak circumstantial evidence.  In the case at bar, the Government would use evidence such as wire taps, government informants, and other evidence to prove the members of the crime family regularly met, showing there is a RICO enterprise at work and evidence of the mafia family hierarchy to prove there is formal or informal organization within the crime family. 

The mere existence of an enterprise is not enough to secure a RICO conviction, “in order to sustain a conviction under RICO, the Government must prove both the existence of an ‘enterprise’ and the enterprise engaged in a “pattern of racketeering activity.”[129]  Defendants operated their enterprise through the illegal activities alleged in the indictment, which include: illegal gambling, loansharking, and extortion.[130] Thus, Defendants generated income for the enterprise, the Genovese Crime Family, through the aforementioned illegal means, which are discussed infra. 

B.        Defendants Conspired to Violate RICO

 

Count One of the instant Indictment alleges Defendants conspired to violate RICO.  The conspiracy prohibition of RICO makes it unlawful for any person to conspire to violate any provision of Section 1962.[131]  The conspiracy provision does not require the defendants to engage in an overt act.[132] Rather than requiring an overt act, the Supreme Court in Salinas v. U.S. held “partners in the criminal plan must agree to pursue the same criminal objective.”[133]  It is not required that each conspirator agree to commit each and every part of the criminal offense.  Thus, Section 1962(d) gives the government the power to prosecute defendants who have not committed any RICO predicates so long as the government proves the defendants “intend[ed] to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense.”[134]

In the case at bar, the Government argues that Defendants are made members or associates of a powerful and wealthy mafia crime family.  The Genovese Crime Family was founded by Charles “Lucky” Luciano and the family’s faction in New Jersey stems from Luciano permitting members in 1931 of an unaligned Cosa Nostra borgata in New Jersey to come under the control of the Genovese Family.[135]  iHThe Genovese Crime Family is an intricate organization with a military-like hierarchy with Dentico sitting on the governing body, The Administration, which is in charge of running the family in the absence of incarcerated boss, Vincent “chin” Gigante.  Defendants, as members associated-in-fact, with the Genovese Crime Family, conspired to commit predicate acts in furtherance of the Crime Family. 

As stated the predicate acts alleged in the Indictment include: illegal gambling; loansharking; and extortion.  Defendants wholly and individually had agreed to engage in unlawful activity as a crime family in furtherance of the family as a RICO enterprise.  At the very least, Defendants conspired to violate Section 1962(c) by agreeing to “conduct or participate…in the affairs [of an enterprise] through a pattern of racketeering activity or collection of an unlawful debt.”[136]  Defendants conducted or participated in the Genovese Crime Family of La Cosa Nostra by their understanding of mafia family hierarchy and where they as individuals and their co-defendants fell on that hierarchy.  In other words, the Government would put on evidence showing that Defendants Gregory Richardson, Joseph William Napolitano, Russell Fallacara, John Yeswita, Joseph Bruno, John Grecco, Peter Grecco, John Dennis, Ludwig Bruschi, Alex Conigliaro, Steve Pastore, Nicholas Ladagona all held the rank of associate in the Genovese Crime Family and reported to high-ranking associate Joseph Scarborough and made members Michael Crincoli and Michael Borelli who in turn reported to and made “tribute” payments to high-ranking capo and member of The Administration, Lawrence Dentico.  In furtherance of the conspiracy to violate RICO, Defendants engaged in loansharking, gambling, and collection of unlawful debts, all RICO predicates, in an attempt to further the illegal means of the RICO enterprise.

C.        Defendants Engaged in a Pattern of Racketeering Activity

            Under RICO a “pattern of racketeering activity” can only be established if  there are two predicate acts committed within a ten-year period and the predicate acts are continuous, ongoing, and interrelated.[137]  The subsequent counts in the Indictment will have to be proven to be continuous, ongoing, and interrelated to further the Genovese Crime Family and though nearly all indicted offenses occurred in the District of New Jersey, the offenses do have an affect on interstate commerce as is required by statute.  Courts initially held that the enterprise itself, not the predicate acts, must affect interstate commerce.  Currently many courts now exercise RICO jurisdiction if the predicate acts have a de minimis impact on interstate commerce demonstrated by proof of a probable or potential impact.[138] 

D.        Defendants Operated Illegal Gambling Businesses in Violation of

18 U.S.C. § 1955

 

            Racketeering Acts One, Two, and Three (Counts Four, Five, and Six) are all illegal gambling charges.  The first three racketeering acts are as follows: (1) Defendants operated an illegal gambling business-sports bookmaking operation; (2) Defendants operated an illegal gambling business-numbers operations; and (3) Defendants operated an illegal gambling business-football ticket operation.  The first three racketeering acts each violated the required three elements of the illegal gambling statute, 18 U.S.C. § 1955 in which Defendants: (i) violated the laws of the States of New Jersey (in Acts One & Three), New York, and Pennsylvania (all three states in Act Two); (ii) involved five or more persons who conducted, financed, managed, supervised, directed and owned all or parts of such business; and (iii) was a substantially continuous operation for a period in excess of thirty days and had gross revenue of more than $2,000 in any single day.[139]

 

 

 

E.        Loansharking Conspiracy in Violation of

18 U.S.C. § 892 & 18 U.S.C. § 894

 

            Racketeering Act Four of the Indictment alleges Defendants conspired to make extortion loans (Count Seven) and conspired to collect extortion loans (Count Eight).  Under 18 U.S.C. § 891 Defendants acted as “creditors” as they extended credit to “debtors” whom received credit extensions.[140]  The extortion counts listed above overlap with Racketeering Acts Five through Nine (Counts Nine Through Thirteen) as Defendants engaged in loansharking transactions.  Defendants conspired and participated in said transactions with victims known to the grand jury as G.V., T.D. and T.T.

            Defendants made extortion loans of credit via loansharking in violation of 18 U.S.C. § 892 to victims G.V. and T.D.  Under subsection (b) of Section 892, Defendants extended extortion lines of credit that would be unenforceable through a civil process against the debtor.[141]  Said credit loans extended to G.V. and T.D. were made in connection with the illegal gambling businesses listed in Racketeering Acts One, Two, and Three.  The said outstanding payments remaining to debtors was in excess of $100 and debtors reasonably believed the creditors, Defendants, had a reputation to use “extortion means” in order to collect the extensions of credit or to inflict punishment for the nonrepayment of the extension in violation of 18 U.S.C. § 892(3).  “Extortion means” is defined as “any means which involve the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person.”[142]  Victims G.V. and T.D. provided sufficient evidence to the grand jury relating to Defendants’ extortion loans and thus at trial would provide that Defendants,’ as creditors, made extortion loans to victims, as debtors.  Victims’ testimony would illustrate the terms of the extortion loans Defendants made, such as the amount of the loan, the time victims had to repay the loan, the interest applied to the loan, and the threats made if the payment schedules were not met. 

            As a corollary to Defendants’ extortion loans, Defendants conspired to collect extortion loans (Count Eight) as a result of their illegal gambling businesses.  Defendants collected extortion loans from victims G.V., T.D., and T.T.  The collection of the extortion loans are Racketeering Acts Seven, Eight, and Nine (Counts Eleven, Twelve, and Thirteen).  Defendants violated 18 U.S.C. § 894 by using extortionate means to “(1) collect or attempt to collect any extension of credit, or (2) to punish any person for the nonrepayment thereof.”[143]  Under 18 U.S.C. § 894, the Government can show an implicit threat was made by Defendants as a means of collecting the loan through evidence that one or more of the credit extensions by Defendants, as creditors, were, to the knowledge of the debtors, G.V., T.D, and/or T.T., to be collected or attempted to be collected by extortionate means or that the non-repayment of the credit would be punished by extortionate means.[144]  In other words, evidence would be introduced by which the Government would have each victim of extortion, G.V., T.D., and T.T. testify they knew or reasonably believed that the loans given to them by Defendants carried with it an understanding that if repayments were not made when demanded victims would suffer harm or threat of harm to their person, reputation or property from Defendants. 

F.        Defendants Conspired to Obstruct, Delay & Affect Commerce & the Movement of Commerce in Violation of 18 U.S.C. § 1951

 

Under Racketeering Act Ten, Defendants engaged in an extortion Conspiracy (Count Fourteen).  Defendants agreed to obtain the property of a business, the identity of which is known to the grand jury, with the consent of the business’ principal.  The said consent of the principal was induced by use of threatened force, violence, and fear, including fear of economic harm.  Defendants also attempted to extort the said business (Count Fifteen).  Defendants violated 18 U.S.C. § 1951 as Defendants infiltrated a business and obstructed, delayed, or affected the commerce or movement of articles of the business via extortion by obtaining property from the principal of the business and his consent was induced by “wrongful use of actual or threatened force, violence, or fear.”[145]  It is not necessary to prove the victim’s actual fear of harm or retaliation, only “an attempt to instill fear”[146] is required.  The commerce affected by Defendants’ extortionate conduct was commerce conducted between a “point in a State and any point outside of the State; all commerce between points within the same State through any place outside of such State; and all other commerce over which the United States has jurisdiction.”[147]  Defendants interfered with commerce by way of threat or violence either by instilling actual fear or an attempt to instill fear.

G.        Through a Pattern of Racketeering Activity or the Collection of an Unlawful Debt, Defendants Acquired an Interest or Control of a Business in Violation of

18 U.S.C. § 1962(b)

 

            The same business that Defendants conspired against in violation of 18 U.S.C. § 1951, Defendants did in fact obtain an interest in said business.  Interest Defendant’s obtained was through a pattern of racketeering activity which included the collection of an unlawful debt and extortion.  Defendants acquired interest by said means and the business was engaged in or had activities that affected interstate commerce in violation of 18 U.S.C. § 1962(b).  Defendants by means of loansharking, extortion, and collection of an unlawful debt “muscled” their way into a business in order to acquire an interest of that business.

H.        Defendants Engaged in Interstate Travel or Transportation in Aid of Racketeering in Violation of 18 U.S.C. § 1952

 

            On two separate occasions three of the Defendants traveled from New Jersey to Pennsylvania (Count Seventeen) and from New Jersey to New York (Count Eighteen) with the intent to “promote, manage, establish, carry on…an unlawful activity.”[148] Defendants’ interstate travel from New Jersey to Pennsylvania was in promotion of the illegal gambling businesses that violated 18 U.S.C. § 1955.  The travel in furtherance of illegal gambling is an “unlawful activity” for the purposes of the prohibition against interstate travel in furtherance thereof.[149]  The interstate travel to Pennsylvania was to make “tribute” payments to high-ranking member(s) of the Philadelphia Crime Family of La Cosa Nostra.

            In Count Eighteen, Defendants traveled from New Jersey to New York with the intent to “promote, manage, establish, carry on…an unlawful activity.”[150]  Defendants traveled across state lines to obtain property from victim T.T. through extortion in violation of 18 U.S.C. § 1951.  Extortion is an “unlawful activity” for the purposes of the prohibition against interstate travel in furtherance thereof.[151]

I.    Defendants Obtained Goods Moving in Interstate Commerce Through Fraud or Deception in Violation of 18 U.S.C. § 659

 

Defendant Nicholas Ladagona (hereinafter “Mr. Ladagona”) was charged in the Indictment in Count Sixteen for knowingly and willfully having 162 Bill Blass suits, a value in excess of $1,000, in his possession.  Mr. Ladagona obtained the suits by means of embezzlement, carrying away, stealing, concealing, and obtained them via fraud or deception.  The suits belonged to Florida Direct Express, which was transporting the goods in interstate commerce from New Jersey to Pennsylvania.  Mr. Ladagona knew the suits were embezzled and stolen and thus Mr. Ladagona violated 18 U.S.C. § 659 by taking such property by means stated and such property was moving in interstate commerce.[152]

In the Indictment and in the press release by the U.S. Attorney’s Office, Mr. Ladagona was not listed as a RICO defendant and the violation of Section 659 was not listed as a RICO predicate for the purposes of the Indictment.  Section 659 is listed as a RICO predicate under Section 1961(1).  It is unknown why Mr. Ladagona’s acts were not listed as an act of racketeering in the Indictment.  However, the Government could file a superceding indictment listing the Section 659 violation as an additional act of racketeering.

J.   Defendants are Made Members & Associates of the Genovese Crime Family of La Cosa  Nostra which engaged in a Pattern of Racketeering Activity in Violation of 18 U.S.C. § 1962(c)

 

            The evidence shows that Defendants engaged in patterns of racketeering activity through the commission of numerous predicate acts.  Defendants were employed by and were members of the Genovese Crime Family of La Cosa Nostra.  The crime family engages in patterns of racketeering activity and Defendants being members of the enterprise engaged in such conduct in violation of Section 1962(c).  A violation of Section 1962(c) requires a person engage in “(1) conduct (2) of an enterprise [by which the person is employed or with which he is associated] (3) through a pattern (4) of racketeering activity.[153]

Defendants engaged in conduct of the enterprise which includes illegal gambling, collection of an unlawful debt, extortion, and interstate travel in aid of racketeering, all RICO predicates constituting a pattern of racketeering activity.  In mafia related Section 1962(c) violations courts have held that each person in the enterprise is a “person” liable under RICO, but the association itself, the mafia family cannot as a “person” itself be listed as a RICO defendant.[154] 

Defendants met the “pattern of racketeering” element under Section 1962(c) by committing at least two predicate acts of racketeering activity that were “related to the common purpose of the enterprise.”[155]  Defendants are made-members or associates of the Genovese Crime Family and engaged in criminal conduct to further the enterprise.  Therefore, through the commission of said predicate acts of racketeering and being members of a criminal enterprise, Defendants violated Section 1962(c).

V.                 CONCLUSION

 

RICO changed the way the Justice Department and law enforcement investigated and prosecuted organized crime.  RICO shifted the momentum in the late 1970s from organized crime, finally giving the Department of Justice the upper hand.  The FBI and U.S. Attorney’s Offices go to great lengths to ensure RICO indictments are investigated to the fullest extent and will end in a conviction.  RICO cases take years to build as the FBI and federal prosecutors aim to build as much evidence as possible against the enterprise and its members.

The first half of the 20th Century belonged to the corrupt and murderous ways of organized crime and specifically La Cosa Nostra.  However, since RICO’s enactment and now highly publicized use, the Department of Justice has instilled fear in organized crime and has the mafia backpedaling.  Because of RICO, the mafia is reassured to never again flourish and reign the way it did prior to RICO.

The RICO indictment discussed and analyzed in this paper is a case that has yet to be prosecuted.  The powers of RICO and the evidence gathered by the Government may result in the case never reaching the trial stage.  Defendants include many associates, non-made members of the crime family, which may lead to many pleading guilty and/or turning government witness in order to receive reduced sentences. 

Organized crime will never cease so long as there are members in society determined to take what is not rightfully theirs by means of force and corruption.  However, RICO ensures that such criminal enterprises are weary and know their enterprise is within the cross-hairs of the Justice.  A recording of one mafia boss echoes the sentiments of all La Cosa Nostra families in the RICO era: “under RICO, no matter who…we are, if we’re together, they’ll get every…one of us.”[156]

 

 


[1] 18 U.S.C. § 1961 et. seq

[2] U.S. Const. amend. XVIII passed on January 16, 1919 made it illegal to manufacture, sell, or transport alcoholic beverages in the United States.

[3] William Balsamo & George Carpozi, Jr., Crime Incorporated: The Inside Story of the Mafia’s First 100 Years xv (1991).

[4] Selwyn Raab, Five Families: The Rise, Decline, and Resurgence of America’s Most Powerful Mafia Empires (2006).

[5] Balsamo, supra note 3, at xiv.

[6] U.S. Const. amend. XVIII. (the Eighteenth Amendment to the U.S. Constitution ratified on January 16, 1919  made it illegal to manufacture, sell, or transport alcohol  within the United States)(the Eighteenth Amendment was later repealed by the Twenty-First Amendment on December 5, 1933).

[7] Balsamo, supra note 3, at xvi.

[8] Raab, supra note 4, at 29. see also Balsamo, supra note 3, at 365.

[9] Balsamo, supra note 3, at 365.

[10] Id.

[11]Raab, supra note 4, at 5-8.

[12] A bloody feud in the mid 1920s between New York City’s two biggest mafia families, which were led by Giuseppe “Joe the Boss” Masseria and Salvatore Maranzano.  Balsamo, supra note 3, at 246-52.

[13]Raab, supra note 4, at 33.  see also Balsamo, supra note 3, at 357-62.

[14]Raab, supra note 4, at 33.

[15] Id. at 34.

[16] Id. at 221.

[17] A. Laxmidas Sawkar, From the Mafia to Milking Cows: State RICO Expansion, 41 Airz. L. Rev. 1133 (1999).

[18] Id.  See also United States General Accounting Office, Effectiveness of the Government’s Attack on La Cose Nostra (1988).  (“Prior to the passage of (RICO), attacking an organized criminal group was an awkward affair.  RICO facilitated the prosecution of a criminal group involved in superficially unrelated criminal ventures and enterprises connected only at the usually well-insulated upper levels of the organization’s bureaucracy.”)

[19] President Johnson became the thirty-seventh President of the United States after the assignation on President John F. Kennedy on November 22, 1963. Lydon B. Johnson—Biography, http://www.whitehouse.gov/history/presidents/lj36.html.

[20] Gerard E. Lynch, RICO: The Crime of Being A Criminal, Parts I & II, 87 Colum. L. Rev. 661, 667 (1987).

[21] Nicholas de Belleville Katzenbach was appointed by President Lyndon Baines Johnson as the 65th Attorney General of the United States on February 11, 1965, succeeding Robert Kennedy and thereafter served as Under Secretary of State.  Nicholas de Belleville Katzenbach—Biography.  http://en.wikipedia.org/wiki/Nicholas_Katzenbach.

[22] Sawkar, supra note 17, at 1136.

[23] Current Professor of Law at Notre Dame Law School, Blakey has served on numerous Congressional Committees and served as a Special Attorney in the Department of Justice’s Organized Crime and Racketeering Section, under the Attorney General’s Honor Program.  G. Robert Blakey—Biography, http://law.nd.edu/people/faculty-and-administration/teaching-and-research-faculty/g-robert-blakey.

[24] Organized Crime Control Act of 1970 Title IX, Pub. L. No. 91-452, 84 Stat. 941 (1970).

[25] Senator John Little McClellan of Arkansas, who held the McClellan Hearings, also known as the Velachi Hearings in 1963 that investigated organized crime in America from first hand accounts of the first public mafia turncoat Joseph Velachi.  Senator John Little McClellan—Biography.  http://en.wikipedia.org/wiki/John_Little_McClellan.

[26]Raab, supra note 4, at 175.

[27] 18 U.S.C. 2510 et seq.

[28] 18 U.S.C. § 3521.  (gives the government the power to relocate witnesses who’s testimony may subject them or their family to harm).

[29]Raab, supra note 4, at 179. 

[30] Organized Crime Control Act of 1970 Title IX, Pub. L. No. 91-452, 84 Stat. 941 (1970).

[31]Raab, supra note 4, at 209-22. 

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38]Raab, supra note 4, at 202-22.

[39] Organized Crime Control Act of 1970, Title IX, Pub. L. No. 91-452, 84 Stat. 941 (1970).

[40] 18 U.S.C. § 1961(4).

[41] 18 U.S.C. § 1961(1).

[42] 18 U.S.C. § 1962.

[43] 18 U.S.C. § 1963.

[44] 18 U.S.C. § 1964.

[45] 18 U.S.C. § 1965.

[46] 18 U.S.C. § 1966.

[47] 18 U.S.C. § 1967.

[48] 18 U.S.C. § 1968.

[49] 18 U.S.C. § 1961(1).

[50] Pamela H. Bucy, White Collar Practice 68 (3d ed. 2005).

[51] BancOklahoma Mortg. Corp. v. Capital Title Co., Inc., 194 F.3d 1089, 1102 (10th Cir. 1999).

[52] Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 488 (1985).  (holding that though defendant hadn’t been convicted of the predicate acts of mail and wire fraud did not bar plaintiff’s claim).

[53] 18 U.S.C. § 1961(1).

[54] 18 U.S.C. § 1961(1).

[55] 18 U.S.C. § 1961(1).

[56] 18 U.S.C. § 891-894.

[57] 18 U.S.C. § 1951.

[58] 18 U.S.C. § 1952.

[59] 18 U.S.C. § 1955.

[60] 18 U.S.C. § 1961(5).

[61] Sedima, 473 U.S. at 496, n.14 (citing S. Rep. No. 91-617, at 158 (1969)).

[62] Id. 

[63] H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989).

[64] 18 U.S.C. § 1961.

[65] 18 U.S.C. § 1961.

[66] 18 U.S.C. § 1961(4).

[67] DEP’T OF JUST. MANUAL, RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS (RICO): A MANUAL FOR FEDERAL PROSECUTORS, § II(D)(1) at 39 (2000) [hereinafter “U.S. ATTORNEY’S MANUAL”].

[68] Ross Bagley, Dorian Hurley, & Peter Mancuso, Racketeer Influence and Corrupt Organizations, 44 Am. Crim. L. Rev. 901, 911 (2007).

[69] U.S. v. Turkette, 452 U.S. 576, 580-81 (1981).

[70] Turkette, 452 U.S. at 583.

[71] U.S. v. Lemm, 680 F.2d 1193, 1199 (8th Cir. 1982).

[72] U.S. v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980) cert. denied, 452 U.S. 961 (1981); see also U.S. v. Robilotto, 828 F.2d 940, 947-48 (2d Cir. 1987), cert. denied, 484 U.S. 1011 (1988).

[73] 18 U.S.C. § 1962(a).

[74] 18 U.S.C. § 1962(b).

[75] 18 U.S.C. § 1962(c).

[76] 18 U.S.C. § 1962(d).

[77] Bagley, supra note 68, at 918-19. (quoting David B. Smith & Terrance G. Reed, CIVIL RICO § 5.02[1] n.4 (1987 & Supp. 1997).

[78] Id.

[79] 18 U.S.C. § 1962(a).

[80] Id.

[81]Lynch, supra note 20, at 681.

[82] Bagley, supra note 68, at 920 (Emphasis added); see also G. Robert Blakey & John Robert Blakey, Civil and Criminal RICO: An Overview of the Statute and Its Operation, 64 Def. Couns. J. 36, 38 (1997); see also U.S. v. Vogt, 910 F.2d 1184, 1193-94 (4th Cir. 1990) (finding a violation of Section 1962(a) because defendant used part of bribery money from drug smuggler to create a multi-corporation laundering enterprise); U.S. v. Porcelli, 865 F.2d 1352, 1364 (2d Cir. 1989) (affirming defendant’s RICO conviction under Section 1962(a) because racketeering proceeds were funneled through defendant’s realty companies).  But see U.S. v. Robertson, 73 F.3d 249, 253 (9th Cir. 1996) (affirming the dismissal of a Section 19629(a) charge where the government failed to tie the deposit of illegal drug sale proceeds to investment or operation of a RICO enterprise).

[83] 18 U.S.C. § 1962(a).

[84] Barry Tarlow, RICO Revisited, 17 Ga. L. Rev. 291, 316 (1983).

[85] Id.

[86]Id. at 315.

[87] 18 U.S.C. § 1962(b).

[88] Tarlow, supra note 84, at 323.

[89] Compare 18 U.S.C. § 1962(a) (prohibiting persons from acquiring an interest in an enterprise affecting interstate commerce, through the investment of proceeds from a pattern of racketeering activity) (Emphasis added), with, 18 U.S.C. § 1962(b) (prohibiting persons from acquiring an interest in an enterprise affecting interstate commerce, through a pattern of racketeering activity).

[90] 18 U.S.C. § 1962(c).

[91] Reves v. Ernst & Young, 507 U.S. 170 (1993).

[92] Tarlow, supra note 84, at 324.

[93] 18 U.S.C.  § 1961(4).

[94] Sedima, 473 U.S. at 496.

[95] 18 U.S.C. § 1962(d).

[96]If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.  If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.”

 

 

[97] Tarlow, supra note 84, at 922-23.

[98] Salinas v. U.S., 522 U.S. 52, 65 (1997).

[99] Id.

[100] Compare 18 U.S.C. § 371 where “two or more persons conspire to commit any offense against the United States or to defraud the United States…and…do any act to effect the manner of the conspiracy (Emphasis added), with, 18 U.S.C.  § 1962(d) where “any person to conspire to violate any of the provisions of subsections (a), (b), or (c)…”

[101] U.S. v. Quintanilla, 2 F.3d 1469, 1484 (7th Cir. 1993); see also U.S. v. Antar 53 F.3d 568 (3d Cir. 1995).

[102] 18 U.S.C. § 1963(a).

[103] Julie R. O’Sullivan, Federal White Collar Crime, 659 (3d ed. 2007).

[104] 18 U.S.C. § 1963(d)(1)(B).

[105] 18 U.S.C. § 1963(c). (under this provision there is an exception to a bona fide purchaser who at the time of the purchase reasonably had cause to believe that the property was not subject to forfeiture).

[106] Bagley, supra note 68, at 933.

[107] 18 U.S.C. § 1963(d)(1)(B).

[108] 18 U.S.C. § 1964(a).

[109] Id.

[110] Id.

[111] 15 U.S.C. § 15(a).

[112] 18 U.S.C. § 1964(c).

[113] 18 U.S.C. § 1964(d).

[114] 18 U.S.C. § 1964(d).

[115] Bagley supra note 68, at 946.

[116] Agency Holding Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 156 (1987).

[117] Bagley, supra note 68, at FN 326.

[118] Bagley, supra note 68, at 946.

[119] In re Merrill Lynch Ltd. P’ships Litig., 154 F.3d 56, 58-59 (2d. Cir. 1998); Rotella v. Wood, 147 F.3d 528 U.S. 549 (2000).

[120] 18 U.S.C. § 3282.

[121] Klehr v. A.O. Smith Corp., 521 U.S. 179, 187-88 (1997).

[122] O’Sullivan, supra note 103, at 659. citing U.S. v. Licavoli, 725 F.2d 1040. 1046-47 (6th Cir. 1984).; U.S. v. Malatesta, 583 F.2d 748, 757-58 (5th Cir. 1978). (Generally, RICO cases may be brought based on predicate acts, no matter when committed, if “the government…demonstrate[s] that a defendant committed at least one predicate act of racketeering within the [5-year RICO criminal] statute of limitations.”)  U.S. v. Wong, 40 F.3d 1347, 1367 (2d Cir. 1994).

[123] U.S. v. Dentico, et al. Indictment at 5. 

[124] U.S. v. Dentico, et al. Indictment at 2.

[125] 18 U.S.C. § 1961(4).

[126] Turkette, 452 U.S. at 580-81.

[127] Bagley, supra note 68, at 913

[128] Turkette, 452 U.S. at 580-81.

[129] Turkette, 452 U.S. at 583 (Emphasis added).

[130] U.S. v. Dentico et al. Indictment at 9. 

[131] 18 U.S.C. § 1962(d)

[132] Salinas, 522 U.S. at 61-66. 

[133] Id. at 63.

[134] Id. at 65.

[135] Raab, supra note 4, at 509.

[136] 18 U.S.C. § 1962(c).

[137] H.J., 492 U.S. at 237-78; see also Goren v. New Vision Int’l, Inc., 156 F.3d 721, 729 (7th Cir. 1998).

[138] Bagley, supra note 68, at 918-19.

[139] 18 U.S.C. § 1955

[140] 18 U.S.C. § 891(2) & (3).

[141] 18 U.S.C. § 892(b)(1).

[142] 18 U.S.C. § 891(6). 

[143] 18 U.S.C. § 894(a)(1) & (2).

[144] 18 U.S.C. § 894(b). 

[145] 18 U.S.C. § 1951(a) & (b).

[146] U.S. v. Salerno, 868 F.2d 524, 531 (2d Cir. 1989)  (quoting U.S. v. Gambino, 566 F.2d 414, 419 (2d. Cir. 1977)).

[147] 18 U.S.C. § 1951(c).

[148] 18 U.S.C. § 1952(a)(3).

[149] 18 U.S.C. § 1952(b).

[150] 18 U.S.C. § 1952(a)(3).

[151] 18 U.S.C. § 1952(b).

[152] 18 U.S.C. § 659.

[153] Sedima, 473 U.S. at 496.

[154] U.S. v. Bonanno Organized Crime Family of La Cosa Nostra, 683 F.Supp. 1411, 1425 (E.D.N.Y. 1988) (citing Haroco, Inc. v. American National Bank & Trust Co., 473 U.S. 606 (1985)).

[155] Bonanno Organized Crime Family of La Cosa Nostra, 683 F.Supp. at 1426.  (quoting Albany Insurance Co. v. Esses, 831 F.2d 41, 44 (2d Cir. 1987)). 

[156] G. Robert Blakey & John Robert Blakey, Civil and Criminal RICO: An Overview of the Statute and Its Operation, 64 Def. Couns. J.  36 (1997).  (quoting U.S. v. Cintolo, 818 F.2d 980, 984-85 (1st Cir.), cert. denied, 484 U.S. 913 (1987), La Cosa Nostra boss Gennaro Angiulo, overhead on a bug at 98 Prince Street in Boston in 1981 speaking to his brother, Donato).

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