Racketeer Influenced and Corrupt Organizations Act

RICO ACT in Conception and Application

Prosecuting organized crime has always carried with it unique and unwieldy challenges for law enforcement agents and groups. By their very nature, organized crime syndicates will tend to be complex, inherently subterranean in their affairs and given over to a widespread obscurity of illegal activities. Thus, for law enforcement groups, even in the face of what in some instances might be seen as egregious offenses against the law or other groups or individuals, it has still been historically difficult to bring charges that not only stick to offenders, but also to bring charges that are significant enough to serve justice and encompass the scope of that in which such illegal entities are often engaged. The secretive leadership structure, the widely distributed delegation of responsibilities and the relationships often forged between members of organized crime groups and individuals who are a party to the legitimate worlds of business, judiciary or politics have made it also supremely difficult to make meaningful charges stick to those at the top of organized criminal structures, whether corporate, Mafioso or some other form of gang or contraband trafficking group. These variant challenges account for the passage and widely diffuse application of the Racketeer Influenced and Corrupt Organizations Act (RICO), which has in its four decades of application become the bane of traditionally ethnically-based organized criminal enterprises and, over time, has come to be gradually applied to a far wider set of cases than perhaps originally imagined.

Indeed, today, RICO has become a powerfully versatile tool for law enforcement, conforming to needs that have expanded to include white collar crime, political corruption, terrorist conspiracy and gang activity. The organized and structural nature of such targeted groups renders them elusive to traditional or individual charges, and have thus made the catch-all nature of the RICO provisions a favored way to approach otherwise difficult legal intervention in the face of obvious criminality. This point inclines us to first consider that which is implied by the conception of organized crime, so that we might develop a clearer understanding as to why the RICO Act has come today to hold such far-reaching and strategic importance. Likewise, understanding the nature of the type of organization or activity targeted by RICO will help to illuminate some of its core shortcomings, some of its practical failures and some degree of the conflict which relates to RICO's constitutionality or diversion therefrom.

In 1970, the United States government attempted to craft a piece of legislation with a sweeping focus on the proliferation of organized crime, which at the time would be embodied by the leading role of Sicilian and Italian family enterprises known as La Cosa Nostra of the Mafia. Attempting to heighten both agency enforcement capacity and the stakes for those running afoul of its conditions, the Racketeer Influenced and Corrupt Organizations Act (RICO) was designed to ease restrictions on surveillance methods and the establishing of a concrete relationship between criminal acts and involvement with organized crime. Its intent was to establish the inherent assertion in its application that the concurrence of certain criminal activities was not incidental but part of a broader criminal conspiracy against state and country. The legislation was thus designed to both triple the financial penalty for acts of such an association and to increase the coincidence between various criminal charges and the 'organized crime' classification needed to levy such fines. (Grell, 1) This did greatly expand the government's ability to combat organized crime, as it conforms to the traditional definition, endowing federal prosecutors the right to utilize the included offenses to earn the defendant the umbrella charge of racketeering. As our research denotes of its initial application, "throughout the 1970's, RICO's intended purpose and its actual use ran parallel to each other. Seldom was RICO used outside of the context of the Mafia, and it is not an overstatement to say that civil claims under RICO were simply not brought." (Grell, 1)

But as we consider the notion of organized crime here, we can develop a clearer view of the way that RICO has evolved to present day, such that it is rarely if ever used in regards to the Mafia now. (Grell, 1) Indeed, organized crime is something which should increasingly be demystified and examined for that which it truly is. It is appealing to view organized crime as a paradoxically nuanced subject, given over to both tactics of an extremely objectionable nature and to meaningful principles that are deeply ingrained by tradition. This view of organized crime, however, is not a realistic understanding of its current makeup. While organized crime does still denote a complex enterprise consisting of many established forms of self-regulation, its motives are far simpler and governed almost exclusively by money. Essentially, organized crime operates in much the same way as does corporate consolidation, only doing so outside the boundaries of the established bylaws of state and country.

The 'mob,' as it were, is neither mythological nor fully understood by the general public, but it bears a number of key characteristics which distinguish it both from legitimate enterprising and from more informal criminal entities.

This is to note that organized crime may take on any number of forms which deviate from the stereotypical impression of the Sicilian Mafioso figures that pervade popular culture. Instead, organized crime pertains to the activity orientation of any such enterprise which operates outside of the law according to economic ventures, which are often characterized transgressing operations such as drug trafficking, arms trafficking, gambling and prostitution. (FBI, 1)

With each of these territories is inbuilt a demand for monopolistic tactics that mirror those in the legitimate business realm. Leadership in organized crime is a double-edged sword, with high-ranking 'family' members being simultaneously in a position to accumulate great power, wealth and influence while residing in the crosshairs of those aspiring to seize such authority by violent means or those looking to disrupt illegal activity through the application of judicial and enforcement jurisdiction.

Its structural approach is often the key distinction in such activity, with its design intended to contend with both of these realities. This precipitates the condition which distinguishes organized crime to its own business and criminology category. Its capacity for self-perpetuation has made it a superior model for the instigation of crime-for-profit. While maintaining an exclusivity with regard to its admission of membership, defined by a variety of factors that are not strictly ethnic in nature but more typically relating to power, influence and discreteness, organized crime units are still uniquely resilient. "The FBI has found that even if key individuals in an organization are removed, the depth and financial strength of the organization often allows the enterprise to continue." (FBI, 1) Thus, its methods of violence and assassination are actually accounted for in its structural tendencies as are such likelihoods as prosecutions and imprisonment for members at myriad levels of a hierarchy.

According to Section 1961 of the RICO Act, the definition for the charge is an incredibly broad category, touching upon almost all areas of criminal activity as they might occur in an organized sense and with relation to one another. To the point, the legislation refers primarily to the idea of racketeering, evaluating this as a criminal conspiracy characterized by the inclusion of only two coinciding charges out of an array that includes almost forty items for which one could be considered in breach of federal law. As Section 1961 denotes, "racketeering activity' means (a) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year" (CULS, 1)

The law then goes on to note further such specific offenses as bribery, interstate theft, mail fraud, the falsification of citizenship, illegal gaming facilitation, counterfeiting, insider trading, unlawful monetary activities and the corruption or exploitation of minors, just to name a selection of those most often considered relevant.

As implied above, one of the unique distinctions that would set RICO apart from its crime-fighting counterpart policies is its ability to apply federal charges to an alleged offender even where many of the crimes are articulated as offended against state-based laws. Moreover, we find that the sentencing which can be applied to charges while standing alone or assembled without the umbrella RICO charges is inherently more conducive to long sentencing. The idea here is that sentencing should occur in a manner proportional to the degree of criminality understood to relate to those who are known to be involved in organized crime. This is the raison d'etre for the RICO Act, which proceeds from the understanding that its primary targets are individuals who are involved in a degree of criminality more established and extensive than the law is likely to be able to either monitor, prove or prosecute. Proving the relationship between two or more of the charges encapsulated by the RICO laws is thus considered tantamount to proving that one is guilty of taking a leadership role in an organized criminal enterprise, with the understanding that there are likely to be a variety of additional offenses for which prosecution has not been sought. Moreover, a prosecution of the core leadership of an organization under RICO charges is likely to produce revelations concerning the relationship between leadership and other members who are either guilty of racketeering or some lesser scope of individual crime. This is to say that RICO was essentially designed to push the door open on the activities of such typically obscured enterprises in order to systematically disrupt its initiatives and priorities.

Still, as this investigation finds as a recurrent theme in considered research materials, even when armed with RICO's expansive authorities, there remains a fundamental difficulty in overcoming the effectively obfuscating structure of the modern organized crime enterprise. In the case of the long-ingrained style of activity instituted by La Cosa Nostra, the protective degree to which structure is designed to insulate the activities, connections and implications relating to real decisions-makers and bosses tends to effect the ability of RICO statutes to truly serve the purpose of removing core leaders from their roles. The practice of elevating a 'fall guy' to absorb the allegations and attention relating to RICO charges and their related organization-wide probes has often given organized crime families of the Mafioso type one face before the public, the media and law enforcement and another face in business betwixt organizations and within the decision-making structure.

To date, the most well-known incident of RICO application remains a useful cautionary note composed by the trial, prosecution and sentencing of an alleged head of the Genovese family. Long one of the most notorious, stable and even romanticized Mafia families, the Genovese enterprise had been a visible target for FBI agents across many decades leading up to the 1970 initiation of RICO statute applicability. Therefore, when it saw an opportunity to play on the family's apparent vulnerability to the new legislation, the FBI pounced upon the family. As our research denotes, "when Alphonse 'Funzi' Tieri, known as Frank to all acquainted with him, was promoted to the head of the Genovese Family in 1972, he was put there for the same reason that his successor originally had been - to be a 'yes man.' Just as Vito Genovese had placed Tommy Eboli in control when he went to prison in order to maintain his own power, Carlo Gambino inserted Tieri to wield his influence over yet another crime family." (Upahts, 1)

After a number of years operating from this position, Tieri was apprehended by federal agents and would become both an example to other Mafia figures as to how the RICO charges would be used to gain previously hard-won court prosecutions and, to the contrary, would become a symbol of the core futility which was always a symbol of prosecuting organized crime. Indeed, to both points, Tieri holds the distinction of being "the first man to ever be convicted under the then newly conceived RICO law. In 1980 he was charged with being the head of the Genovese crime family, overseeing activities such as extortion, conspiracy, bankruptcy fraud, and murder. In January 1981, Tieri was convicted and sentenced to ten years in prison." (Upahts, 1)

Naturally, his prosecution would in many ways serve to demonstrate to heretofore immune Mafia leaders that the federal government was determined to shape its laws as a means to undermining such obscuring design principles.

But this is a statement which would be undermined by the real nuance and implication of Tieri as defendant. The understanding, both within the Genovese famiiy, and indeed across various sectors of law enforcement, judiciary and public opinion, would render the case a relative failure insofar as it was unable to truly remove any sort of real power or strategic personnel from the family's structural leadership. Tieri had not only served his purpose as fall guy by absorbing prosecutorial scrutiny from family leaders who would thus continue to work with relative impunity, but he would died in hospital care of natural causes only two months after his conviction. (Upahts, 1) Therefore, opportunities to use his captivity as an example, a source of information or even a carriage of justice had simply failed, with the new application of RICO running into the same old problem of struggling to penetrate the abstruse and clever structural confutation of such organized criminal groups.

One of the aspects of the Mafia in particular that has made it so difficult to pin down is its transnational structure which, until the inception of the RICO statutes, the FBI generally lacked. With much of its familial heritage rooted in Sicily and other parts of Mediterranean Italy, the American contingent of Mafioso have used this relationship to great strategic effect. In the ensuing generations, this relationship had brought greater power to families through their involvement in the international cocaine and heroin trade. This was a venture which would bring a constant threat of violence to the city streets and countryside of Sicily, where the cryptic 'omerta' or honor-code pertaining to Mafia business and personal relations would often be enforced by harsh strong-arm tactics such as assassination. Dwarfing the American Mafia's tradition of internal violence, the Sicilian principle of the vendetta predisposed Mafia affiliates there to commit revenge killings that helped to enforce authority and exploitation through the levying of fear. By the 1980's, this condition had reached a fever pitch in Sicily. The city of Palermo, specifically, would be devastated by mafia friction during "the period from 1978 to 1992 when its streets were bloodied by unprecedented violence. At the outset, a group of notoriously aggressive mafiosi originally from the mountain town of Corleone waged a takeover of the city's established mafia 'families.' The aggressors' strategy included murdering public officials -- police and Carabinieri officers, magistrates and political leaders. With a population of around 700,000, Palermo lost 100 or more persons annually to assassination." (Schneider, 2-3)

Much of this was enabled by the Mafia's deep entanglement with politicians, law enforcement agents, judges and industry leaders in Sicily and the U.S., providing it with protection from criminal prosecution and virtually every other form of justice. This is a condition which would change in the 1980's, as public resentment for the presence of organized crime had risen to new heights. A decade of violence had rendered a heavy toll on the people of Sicily who, in addition to suffering the loss of so many of its citizens, had also undergone a level of international trade repudiation due to the unquestionable links between its leadership, its industry, its Church and its organized crime families. The results had been a negative economic cycle in which unemployment, poverty, a suspicion of notoriously corrupt political systems and an animosity for law enforcement had helped to sustain the relevance of such criminal careerism. The steps being taken by legislative and judicial officials in the United States with RICO would inspire a dramatic attack on Sicily's organized crime families.

The 1986 Maxi Trials, in which more than 400 mob defendants were held on trial in Palermo for the crime of Mafia entanglement, echoed American consolidation efforts with the 1970 RICO Act. (FBI, 1) This would greatly hone the tools available to law enforcement agencies for prosecution. With the in-trial informant Tommaso Buscetta, a formerly high-ranking Mafioso, providing a damning case against organized crime in both the U.S. And Italy, Sicily would make its first serious foray into curbing Mafia rule. (Israely, 1) Still, in the aftermath of this trial, many members of Buscetta's family were killed in retaliation, as were many of the public officials responsible for bringing the Maxi Trial into occurrence. (Sicily, 1) to an extent, the factors of intimidation employed by the Mafia would remain present, but in RICO, governments facing the problem of organized crime would also see the opportunity to employ similarly strong-armed tactics through a broad construction of the law.

Unfortunately, questions as to the effectiveness of the RICO statutes in meeting their initial intent have been continually inflamed by failure. A good example is the case today used against biker or motorcycle gangs, the largest of which constitute crime syndicates that while not sophisticated in the way of the Mafia, are nonetheless structurally secretive, prone to enterprising criminal activity and given over to working through expansive networks to achieve their goals. It is thus that racketeering has frequently been used as the primary tool in obstructing or disrupting such gangs. According to the Federal Bureau of Investigation (FBI), which has in recent decades taken a significant interest in the activities of such clubs, "although not all [Outlaw Motorcycle Gangs] fit the definition of organized crime, many of the estimated 800 motorcycle gangs operating in the United States do." (Potter, 1) This is primarily because those motorcycle clubs which are most widely spread, heavily populated and publicly visible are also those which have established a clear and traceable pattern of violence, legal disregard and conscious, active and expansive racketeering. The FBI has identified each of the four largest motorcycle gangs as participating in activities which could be considered racketeering, with the notorious Hell's Angels at the top of this list.

Indeed, like Tieri, founder of the Hell's Angels, Sonny Barger would be a symbol of the continued enforcement futility even in the introduction of RICO statutes. Barger and his associates would seem to flout the capability of courts to force the proper functionality of RICO, with well-known records for organized criminal activity still not serving to constitute the need evidence to gain conviction of the implied conspiracy. Accordingly, "in 1979, the federal government put Barger and several members and associates of the Oakland chapter on trial on RICO charges (United States of America v. Ralph Barger, Jr., et al.), trying to connect the club to guns and illegal drugs. The jury acquitted Barger on the RICO charges with a hung jury on the predicate acts: 'There was no proof it was part of club policy, and as much as they tried, the government could not come up with any incriminating minutes from any of our meetings mentioning drugs and guns'(p. 221)." (von Lampe, 1) Juries would seem here to almost express a wariness concerning the constitutionality of the RICO ACT, placing a heavy burden on prosecutors to prove the broad and sweeping implications which are intended by racketeering charges.

And indeed, as time has passed, this issue of constitutionality has become a greater interest in discussions over RICO. This intensely vague and broad standard, some argue, has created a dangerous liberty for federal prosecutors to employ the heightened racketeering categories and penalties to implicate civil behavior other than organized crime. To the point, the American Civil Liberties Union argues that "when Congress enacted the Racketeer Influenced and Corrupt Organizations Act (RICO), it intended those extraordinary powers to be used against the Mafia and organized crime. Over the years, however, RICO was used far more broadly, even against anti-abortion protesters and other dissidents." (ACLU, 1) Until as recently as 2003, when the Supreme Court finally struck down the entitlement to prosecutors, RICO had been implemented in pursuit of activist groups targeted for their dissident, counter-cultural or even environmental views. In the 2003 case, the court decision was made with regard to anti-abortion protestors who had invoked government scrutiny for their extremist tactics, but it illustrates that the broad powers that the government had awarded itself could be used to discredit groups whose organization and activity is directed by social, political or ideological cause rather than for the sustenance of underworld criminal networks. This represents a clear violation of civil rights in RICO's overarching intent to bypass Constitutional safeguards against undue criminal prosecution. So too would this provoke concerns over the nature of RICO applications to terrorist activities and other alleged violent or anti-establishment conspiracies against state.