RE: 9/11 ACCOUNTABILITYLaw as a Weapon: Use RICO SUE SSN a/k/a GOV AUTH...Mon Feb 12, 2007 23:15RE: 9/11 ACCOUNTABILITY
Law as a Weapon: How RICO Subverts Liberty and the True Purpose of Law
By William L. Anderson
Candice E. Jackson
The RICO statute defines an enterprise as “includ[ing] any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” The Supreme Court has held that enterprise can refer to wholly illegitimate endeavors as well as to legitimate ones. (Hence, the stated goal of RICO—to prosecute the infiltration of legitimate businesses by organized crime—has been broadened into prosecution of criminal endeavors as such.)
Thus, under RICO, it is a crime to (a) use income derived from the commission of at least two “acts or threats” involving any of the crimes listed in the statute to acquire an interest in any group of individuals associated in fact affecting interstate commerce; (b) acquire or maintain an interest in any group of individuals associated in fact affecting interstate commerce, through at least two “acts or threats” involving any of the crimes listed in the statute; (c) conduct or participate, through at least two “acts or threats” involving any of the crimes listed in the statute, in any group of individuals associated in fact affecting interstate commerce; or (d) conspire to take any of the foregoing actions.
Section 1962(c) is the most frequently utilized substantive section of criminal RICO, and section 1962(d) (conspiracy) is practically ubiquitous in RICO indictments. What does subsection (c) really prohibit? Violation of RICO is defined as participation in a group of individuals, associated however loosely, “through” commission of at least two other crimes. By definition, the truly wrongful acts in RICO are already criminalized under other statutes. What does RICO add to the criminal code by making it a crime to associate with others “through” commission of crimes? The lack of a satisfactory answer to this question highlights the problematic implications of the fact that RICO is a highly derivative criminal statute. Assuming for the moment that the crimes listed in the RICO statute are themselves properly characterized as crimes, nothing is gained by making it a new and separate crime to associate with others (“conduct or participate in an enterprise”) through commission of other crimes. With the added fact that many of the crimes listed in the RICO statute are themselves derivative crimes, RICO stands out as a highly derivative criminal statute with many illiberal implications.
In reality, RICO acts as an arbitrary penalty enhancer and prosecutorial bargaining tool. A violation of RICO is a crime of convenience—for prosecutors, that is. What defendant, charged with a predicate act carrying a potential sentence of a few years, would refuse to bargain with a prosecutor who says, “I’ll take the RICO charge with its mandatory twenty-year sentence off the table if you plead guilty to the predicate offense”? If this tactical weapon fails, a prosecutor faced with a resolute defendant determined to roll the dice at trial can still rest easy, knowing that RICO has stockpiled new procedural weapons in the prosecutor’s war chest. For example, RICO allows the government join into a single prosecution widely diverse defendants and crimes that, absent RICO, would be too disjointed to be allowed in the same trial under the rules of evidence and criminal procedure.
Owing to the highly derivative character of RICO offenses, a prosecutor has options when deciding what charges to seek in an indictment. There are few constraints on a prosecutor’s discretion to include a RICO charge along with others. Given the formidable sentences RICO threatens and the relatively weak evidence needed to prove that a defendant associated with a group of individuals who committed other crimes, prosecutors have much to gain by including a RICO charge. Such abuse of prosecutorial discretion aids politically motivated or vindictive prosecutions and produces concomitant suffering and injustice for the victimized defendants. Moreover, such abuse of prosecutorial discretion is virtually irremediable because of the legal doctrine of absolute prosecutorial immunity, which bars civil suits for damages against prosecutors.
According to Roberts and Stratton (2000), federal criminal statutes today number more than three thousand. In addition, more than ten thousand federal regulations have the same legal force, thus widening the net in which federal prosecutors can catch ordinary citizens. The proliferation of derivative crimes, in combination with all these laws and regulations, has produced a prosecutor’s paradise.
Under RICO, individuals who engage in what prosecutors allege to be extortion, illegal gambling operations, and the like are not charged with those specific crimes, but rather are accused of racketeering, which is a derivative catch-all term. Because RICO cases are tried in federal courts, U.S. attorneys do not have to prove to juries and judges that the accused engaged in the aforementioned crimes (which as a rule are violations of state criminal law); they must show only that it appears the defendants carried on those activities. Moreover, for a RICO conviction, the prosecutor must meet only the civil standard of “preponderance of the evidence,” not the higher standard of “guilt beyond a reasonable doubt” that historically has been required for criminal conviction.
The highly derivative nature of RICO offenses is further exposed by examination of section 1962(d)—conspiracy to violate the other sections of the RICO Act. For example, with respect to subsection (c), violation of subsection (d) means conspiracy to conduct or participate, through at least two “acts or threats” involving any of the crimes listed in the statute, in any group of individuals associated in fact affecting interstate commerce. Now the crime amounts to an agreement (without any overt act) to participate in any loosely defined association of people through the commission of two or more other crimes.
RICO’s Expansive Vagueness
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