Racketeering and RICO Laws

Congress passed the Racketeer Influenced and Corrupt Organizations (RICO) Act in 1970, seeking to curb organized crime. Many states have adopted similar laws since then. While people often associate RICO with prosecutions of notorious Mafia kingpins, its scope may extend more broadly. RICO violations carry heavy penalties, so a suspect should be wary of talking to law enforcement about their situation. Even if they feel confident in their innocence, this could inadvertently damage their defense. Instead, they should look for an attorney who can guide them through any interactions with police or prosecutors.

What Is RICO?

The main RICO law is a federal statute that targets certain conduct related to a "pattern of racketeering activity," which tends to involve organized crime. States have their own RICO laws as well.

Elements of RICO Charges

18 U.S. Code Section 1962 is the core of the federal RICO Act. It prohibits using income received from a “pattern of racketeering activity” in relation to an enterprise that is engaged in (or affects) interstate or foreign commerce. It also prohibits acquiring or maintaining an interest in or control of any such enterprise through a pattern of racketeering activity. Most broadly, it prohibits anyone who works for this type of enterprise or is associated with it from conducting or participating in the conduct of its affairs through a pattern of racketeering activity. Conspiring to do any of these things also falls within the statute.

Section 1961 defines each of the following terms, illustrating the broad scope of RICO:

• Racketeering activity: numerous federal offenses, extending from traditional crimes like murder, arson, and robbery to drug trafficking, white collar crimes, and even immigration offenses
• Pattern of racketeering activity: at least two acts of racketeering activity within a 10-year period
• Enterprise: any legal entity, as well as any group of people who are associated but are not a legal entity (such as a gang)

In U.S. v. Turkette, the U.S. Supreme Court emphasized that Section 1962 applies to both legitimate and illegitimate enterprises. The Court explained that an enterprise is an entity separate and apart from the pattern of activity in which it engages. An enterprise may be proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The more recent decision of U.S. v. Boyle provides that a group with a common purpose and course of conduct is an enterprise.

Interpreting the pattern element, the Supreme Court ruled in H.J., Inc. v. Northwestern Bell Tel. Co. that a prosecutor must show that the racketeering predicate offenses are related. They also must amount to or pose a threat of continued criminal activity. The Court explained that a threat of continuity arises when the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes. This requirement is also met when the predicates are a regular way of conducting the defendant’s ongoing legitimate business, or of conducting or participating in an ongoing, legitimate RICO “enterprise.”

Examples of RICO Offenses

One of the most notable RICO cases involved the “Five Families” who spearheaded the Italian-American mafia in New York City during the 1980s. A federal prosecutor named Rudolph Giuliani used RICO to indict 11 key members of the mafia, including three of the five bosses. Some of the defendants died before trial, but the rest were convicted, and most were sentenced to 100 years in prison. Giuliani became Mayor of New York City less than a decade later.

Around the same time, federal prosecutors in Florida targeted a novel criminal enterprise: the Key West Police Department. Three of its officers, including the deputy chief, were convicted under RICO for their role in protecting cocaine traffickers. Ironically, the traffickers also were convicted on RICO charges due to their involvement with the police department.

Offenses Related to RICO Violations

As noted earlier, a broad range of crimes could support a RICO charge. Some examples include:

• Murder: killing another person with intent or extreme recklessness
• Arson: damaging property through a fire or explosion
• Drug trafficking: distributing controlled substances
• Child pornography: producing, possessing, distributing, or receiving materials depicting a minor engaging in sexually explicit conduct
• Robbery: taking someone else’s property through the use or threat of force
• Bribery: offering, giving, soliciting, or accepting something of value in exchange for exercising authority or influence in a certain way
• Fraud: using false statements or misrepresentations to gain something of value

A prosecutor could pursue a conviction of the predicate crime in addition to the RICO charge, or use it as a fallback option if they cannot prove all the elements required by the RICO law.

Defenses to RICO Charges

A prosecutor must prove several complex elements beyond a reasonable doubt to get a RICO conviction. This may offer many ways for a defendant to attack the charge. For example, they could argue that an enterprise did not exist, they were not connected with any enterprise, they did not knowingly or intentionally participate in an enterprise, or no predicate crime occurred. They also could dispute the pattern element by challenging relatedness or continuity. If multiple isolated crimes occurred, the defendant might be guilty of those crimes but not a RICO violation.

If a criminal organization like a gang forced a defendant to engage in illegal conduct, they might raise a defense called “duress.” This means that they committed the crime only because they faced a serious threat of imminent harm. Meanwhile, a defense called “entrapment” arises when law enforcement induced the defendant to engage in acts that they were not predisposed to commit.

Procedural violations by law enforcement also could support a defense. Perhaps the police seized evidence in a search beyond the limits of the Fourth Amendment, which could result in the exclusion of the evidence. Or perhaps they violated the defendant’s Miranda rights or their Sixth Amendment right to counsel.

Penalties for RICO Violations

A violation of the federal RICO statute may result in up to 20 years of imprisonment, or potentially life imprisonment if the violation arises from a racketeering activity for which a defendant may be sentenced to life imprisonment. In addition, they will face a fine as described by Section 3571, which generally provides for a maximum $250,000 fine upon a felony conviction. However, if someone financially benefited from the crime, or if someone other than the defendant suffered a financial loss, the defendant may face a fine of up to twice the gain or twice the loss (whichever is greater) if this exceeds the $250,000 ceiling. Moreover, the RICO sentencing statute allows a judge to fine a defendant who derived profits or other proceeds from an offense up to twice the profits or proceeds instead of a fine under Section 3571.

A judge also may order the defendant to forfeit various types of property to the federal government, such as any proceeds obtained from racketeering activity, any property derived from those proceeds, any interest that the defendant acquired or maintained in violation of the RICO law, and any interest in an enterprise in which the defendant was involved in violation of the RICO law. Property may include real estate and tangible and intangible personal property.

State RICO laws also impose severe penalties. For example, a violation of the Georgia RICO statute is a felony that carries 5-20 years of imprisonment. It also may result in a fine of up to $25,000 or three times the amount of the defendant’s financial gain from the violation, whichever is greater. In addition, all property used or intended for use in a pattern of racketeering activity, or derived from it, is subject to forfeiture to the state. Meanwhile, the Pennsylvania RICO statute defines this offense as a first-degree felony. This carries up to 20 years of imprisonment and a fine of up to $25,000.

Last reviewed October 2024