A DEFENSE ATTORNEY’S GUIDE TO UNDERSTANDING A CRIMINAL RICO CHARGE

WHAT IS RICO?

Attorney Jim Amberg advocating during a closing argument in a RICO Conspiracy case

Attorney Jim Amberg advocating during a closing argument in a RICO Conspiracy case

The RICO Act, the Federal law that keeps even the most dangerous crime bosses up at night, is the most powerful tool a United States attorney has for extinguishing organized crime.  RICO, the abbreviation of the Racketeer Influenced and Corrupt Organizations Act, 18 USC §§ 1961-1968, is a series of Federal laws which criminalize individuals for membership and participation in criminal enterprises.  These RICO laws are extremely complex, often misunderstood, and can result in major prison time for anybody caught in their web.  As these RICO prosecutions evolve and the use of the RICO conspiracy charge becomes more prevalent, it is vital to understand the framework and nuances of the RICO act in order to provide a better defense for our clients.

ELEMENTS OF A RICO CASE

Because of the complexity of the RICO act, when analyzing a case for a client, I always look at the case in terms of the elements of RICO.  A RICO case generally has five elements that must be proven beyond a reasonable doubt for conviction.  These elements are:

  • An enterprise existed
  • The defendant was associated with the enterprise
  • The defendant knowingly agreed to participate in the conduct of the enterprise
  •  The activities of the enterprise affected interstate commerce
  • The defendant and at least one other conspirator agreed that the defendant or a conspirator would commit at least two acts of racketeering in furtherance of the enterprise

The Enterprise

A successful RICO prosecution first requires proof beyond a reasonable doubt that an enterprise existed.  The term “enterprise” can include a group of people associated together for a common purpose of engaging in a course of conduct. This group may be associated together for purposes that are both legal and illegal.  A good example of this is the “Kilpatrick Enterprise” which consisted of the former mayor of Detroit, Kwame Kilpatrick, and his various cohorts.  Mr. Kilpatrick certainly participated in legal activities with his cohorts, but a jury found that he also participated in illegal activities as an enterprise. 

In deciding whether something is an enterprise, the jury may consider whether it has an ongoing organization or structure, either formal or informal, and whether the various members of the group functioned as a continuing unit.  A group may continue to be an “enterprise” even if it changes membership by gaining or losing members over time.  Examples of this include the Italian Mafia, the Highwaymen Motorcycle Club, and the Bounty Hunter Blood street gang.  In all of these groups, members come and go, yet the group always remains active. 

In recent years, US Attorneys have stretched the net of what can be considered an enterprise to include groups that have no formal structure, quantifiable leadership, or organization.  Instead, the government need not prove the association had any form or structure beyond the minimum necessary to conduct the charged pattern of racketeering.  Two of my fellow criminal defense attorney colleagues recently conducted a RICO trial in Flint Michigan involving the “Howard Boys” enterprise.  This “enterprise” was nothing more than friendships between the individuals involved, with a complete lack of any structure, shared money, or anything that would resemble what most people think of as organized crime. 

Being Associated with the Enterprise

After the US Attorney establishes that there is an enterprise, it must next be proven beyond a reasonable doubt that the individual defendant was associated with that enterprise.  To be associated with an enterprise, a person must be involved with the enterprise in a way that is related to its affairs or common purpose, although the person need not have a stake in the goals of the enterprise and may even act in a way that subverts those goals. A person may be associated with an enterprise without being so throughout its existence.

The Defendant Must Agree to Participate in the Conduct of the Enterprise

It is not enough that an individual be associated with an enterprise, otherwise, for example, every Blood gang member would be guilty of RICO.  Instead, the RICO act requires the additional element that the defendant agreed, or conspired, to conduct or participate in the conduct of the affairs of the enterprise.  A person conducts or participates in the conduct of the affairs of an enterprise if that person uses his position in, or association with, the enterprise to perform acts which are involved in some way in the operation or management of the enterprise, directly or indirectly, or if the person causes another to do so.  This element does not require that the individual participated in all of the illegal RICO activity.

A person conspires to conduct or participate in the conduct of the affairs of an enterprise if that person agrees to knowingly facilitate the activities of the operators or managers who conduct or participate in the conduct of its affairs. 

Interstate Commerce

The government must prove beyond a reasonable doubt that the activities of the enterprise affected interstate commerce.  Interstate commerce includes the movement of money, goods, or services, as well as travel, from one state to another. This may include the purchase or sale of goods or supplies, including controlled substances, from or to a state other than the state in which the RICO act is charged; the use of interstate mail or wire facilities; or the causing of any of those things. It may also include trips taken outside of the charging state by a member or members of the enterprise to further the enterprise’s objectives.  

It is not necessary for the government to prove that individual racketeering acts themselves affected interstate commerce; rather, it is the enterprise and its activities considered in their entirety that must be shown to have that effect. Individual racketeering acts are the key pieces of any RICO charge and are discussed at length below in the final element.  The effect on interstate commerce, though, may be established through the effect caused by the individual racketeering acts.  Moreover, it is not necessary for the government to prove that each defendant knew that the enterprise affected or would affect interstate commerce, or that the defendant intended to affect interstate commerce, or that the defendant was personally engaged in activities affecting interstate commerce. The government need only prove that the enterprise as a whole engaged in activities that affected interstate commerce.  Simply put, nearly everything can be considered to have an effect on interstate commerce, which is why many times this element is stipulated to by the parties involved.

Agreement to a Pattern of Racketeering Activity

This element is the heart of all RICO prosecutions.  Simply put, the government must show beyond a reasonable doubt that the defendant intentionally committed, or caused, or helped in the commission of two or more racketeering acts and that those acts made a pattern of racketeering activity. 

First, proof beyond a reasonable doubt that the defendant committed two racketeering acts is required.  18 USC §1961 lists a multitude of different Federal crimes, such as financial institution fraud, which constitute a racketeering act.  Much more common though is the state offenses which are considered racketeering acts, including any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance.  These violations of state law that can be considered racketeering acts must carry with them the punishment of more than one-year imprisonment.  What this means is that if you murder somebody for your street gang, that murder, a violation of state law, can be considered a racketeering act.

Second, the racketeering acts must have a meaningful connection to the enterprise, and were related to each other. Racketeering acts are related to each other if they have the same or similar purposes, results, participants, victims, or methods of commission, or were otherwise interrelated by distinguishing characteristics. Ultimately, the acts of racketeering cannot merely be isolated events, but instead must be interwoven to at least some degree.  For example, two racketeering acts are related to each other, and have a meaningful connection to the enterprise, if the evidence shows that both acts were possible solely by virtue of the defendant’s position in the enterprise or his involvement in or control over its affairs, or by evidence that a defendant’s position in the enterprise facilitated his commission of the racketeering acts, or by evidence that both of the racketeering acts benefited the enterprise, or were authorized by the enterprise, or promoted or furthered the purposes of the enterprise.

A RACKETEERING CONSPIRACY CHARGE

It is the law of the United States, per 18 USC §1962(d), that whoever conspires to conduct the affairs of any enterprise through a pattern of racketeering activity commits a crime, if the enterprise affects interstate commerce.  In a RICO conspiracy, the defendant does not have to personally commit or agree to personally commit two racketeering acts.  Rather, it is enough if the evidence proves beyond a reasonable doubt that the defendant agreed with someone else that he would participate in the enterprise with the knowledge and intent that at least one member of the conspiracy (who could, but need not, be the defendant himself) would commit at least two racketeering acts in the conduct of the affairs of the enterprise. The evidence need only show that the defendant knew the general nature and common purpose of the conspiracy and that the conspiracy extended beyond his individual role.  The defendant does not have to necessarily have knowledge of the full scope of the conspiracy and can be convicted for a minor role within the conspiracy.

The difference in the way the jury is instructed between a substantive RICO charge versus a RICO conspiracy charge is in the agreement to a pattern of racketeering element.  When presented with a RICO conspiracy, the jury will have to determine whether the defendant entered into a conspiracy to violate the RICO act.  The underlying principle that in essence a RICO charge is a conspiracy charge, coupled with the idea that one may conspire to commit a conspiracy is quite the nebulous idea, unfortunately though, a charge that is currently permitted in the Federal system.

Recently, all of our RICO cases in the Eastern District of Michigan have been RICO conspiracy cases.  The reason for this is that it is much easier to pursue a RICO conspiracy case because the individuals charged don’t have to perform any racketeering acts themselves and simply just have to have knowledge that the acts are going on in the enterprise.  An example of this is that a member of a street gang may be convicted of a RICO conspiracy even if they never committed an illegal act.  The question is whether that person knew of his fellow gang members murdering people and selling drugs.

PUNISHMENTS FOR A RICO CONVICTION

One of the more confusing areas of a RICO case is what the defendant is facing if they are convicted of racketeering.  A Federal RICO conviction carries with it the possibility of up to 20 years’ incarceration.  This is a useful tool for the government, for example, if it cannot be proven that a mob boss had any knowledge of any murders or other activity that, as seen below, would expose the person to a possible life sentence.   The amount of time actually given would be likely lower than 20 years as it is up to the court to impose a fair sentence, but the government would argue that it gets the big fish criminals off the street and disrupts their criminal organizations.

Although the base RICO conviction carries with it a maximum possible sentence of 20 years’ in prison, a convicted defendant can face a much longer sentence if they are found to have participated in the underlying racketeering acts that carry higher maximum sentences.  An example of this is an armed robbery charge.  In Michigan, armed robbery carries with it a possible sentence of life in prison.  The jury will be given an additional question as to whether the defendant agreed and intended that at least one other conspirator would commit an armed robbery.  If the finds that the defendant did do this, then the defendant’s possible maximum sentence is life imprison rather than the 20 years’ incarceration. 

DEFENDING A RICO CASE

Because of their complexity and broad scope of unlawful conduct, defending a RICO charge can be a difficult undertaking.  That being said, I recently was successful in defending my client in a major street gang RICO case that involved multiple murders, car jackings, armed robberies, and drug dealing.  The key to the defense was separating the illegal activities from the enterprise and explaining to the jury how they were committed independent from the gang.  This strategy worked and although my client was convicted of the base RICO charge, the jury found him not guilty for all the sought enhancements.  This resulted in a sentence of 3½ years, including time a halfway house, whereas his co-defendants received 30 years in prison.

_________________

Jim Amberg is a partner at the lawfirm of Amberg & Amberg, PLLC.  Jim has tried and won misdemeanor, felony, and federal jury trials and routinely handles everything from Major Narcotics Conspiracy, Federal RICO charges, to Murder cases.  He argued and won the legally significant case of United States v Presley in the 6th Circuit Court of Appeals.  Jim also has sued courts to stop the practice of illegally incarcerating minors. Jim was the plaintiff in the case of James Amberg v City of Dearborn, in which the Michigan Supreme Court ruled unanimously in Jim's favor, changing Michigan FOIA laws for the better.  Jim is an active member of the Criminal Defense Attorneys of Michigan, the Michigan Association for Justice, and the National Association of Criminal Defense Lawyers.  He has been named a Superlawyer by Superlawyer Magazine, a Top Lawyer by DBusiness Magazine, AV Rated by Martindale-Hubbell, and has a rating of Superb by AVVO.com.

If you have any legal questions regarding your case, please feel free to contact Jim at (248) 681-6255 or email at jamberg@amberglaw.net