The federal RICO (Racketeer Influenced and Corrupt Organizations Act) statutes were originally enacted as a way to address the activities of the mafia or “mob” and other organized crime. However, more recently, law enforcement officers and prosecutors have been following the trend of using RICO against any potential criminal organization, including street gangs, drug traffickers and even legitimate businesses. In fact, RICO has even been used to prosecute white-collar crimes such as securities fraud or embezzlement. This across-the-board approach to RICO prosecution may cause a legitimate business or personal relationship to result in serious criminal charges, severe financial loss, a damaged reputation and a harsh prison sentence.
Through RICO, prosecutors are able to combine diverse and seemingly unrelated offenses into a single criminal charge that can result in extremely severe penalties. Under the federal RICO statute, charges may be brought against any person or group that commits two acts of racketeering within a specified time period and that further violates other provisions of the statute. Broadly, the term “racketeering” refers to the activities of an organized group that operates an illegal business or scheme in order to make a profit. These activities include a broad category of conduct, such as bribery, extortion, loan sharking, sexual exploitation of children, drug trafficking, prostitution and illegal gambling,? in addition to white-collar crimes like securities fraud, embezzlement and public corruption. Racketeering also includes the production and use of counterfeit money and trading in untaxed alcohol.
A person convicted of RICO charges typically faces severe criminal penalties, including a lengthy prison sentence and the forfeiture of any property or funds allegedly obtained through a RICO violation. The RICO statutes also allow individuals harmed by alleged RICO violations to file a civil lawsuit for treble damages from the convicted defendant.
What Crimes Are Covered by RICO
RICO contains the list of “prohibited activities.” RICO violation occurs if the person commits any two (or one act at least twice) of the enumerated state or federal crimes listed in 18 U.S.C. ß 1961(1).
Federal offenses include, any indictable federal crime listed in Titles 18 and 29 of the United States Code, which cover most criminal offenses. Also included are federal generic offenses, money laundering, bankruptcy fraud, and immigration violations, all narcotics crimes, and securities fraud.
Conspiracy to violate RICO is a powerful tool used by federal prosecutors. 18 U.S.C. ß 1962(d) makes it a separate crime to conspire to violate any of the RICO There is a difference between RICO conspiracy and the general federal conspiracy in several ways.
Under the general federal conspiracy statute, it is a crime to agree with others to commit a crime but the agreement should have the same objective. In RICO cases, often there are many different objectives as RICO activities may involve many various criminal activities. The general conspiracy statute is not as effective as the RICO conspiracy statute, which simply makes it a separate substantive offense, which covers all participants and all crimes.
In a RICO conspiracy, just like a general conspiracy, participants don’t need to have full knowledge of all the details of the conspiracy. The only requirement for a conviction is that the person had knowledge of the general nature of the criminal plan. It doesn’t matter that one conspirator ha no knowledge of the crimes committed by other members of the conspiracy. The crime is agreeing to commit the crime, not necessarily committing it.
Another distinction between RICO conspiracy and the general federal conspiracy is that in RICO conspiracy there no requirement of avert act in furtherance of the conspiracy.
RICO Criminal Penalties
Criminal penalties for RICO violations include imprisonment, fines, and forfeiture. criminal penalties for violations of section 1962. The fines can be up to $250,000, and organizational fines can be up to $500,000. Alternatively, the fine may be not more than the greater of twice the gross gain from the offense or twice the gross loss to a person from the offense.
The maximum prison sentence for RICO violations may be twenty years, or a life sentence if the violation is based on a racketeering activity for which the maximum penalty is life imprisonment.
The government has been using the RICO forfeiture provisions to confiscate defendants’ property. The property subject to forfeiture includes all assets which constitute proceeds or profits of an illegal racketeering enterprise or which provide a source of influence over an illegal enterprise.
In some cases, the government may ask the court to restrain or freeze the defendant’s assets pre-trial and pre-forfeiture to preserve them for forfeiture. IF the application is granted, the court may seize assets, issue restraining orders and injunctions, or require the execution of a performance bond.
Al parties with an interest in the property subject to this order will be given a notice and may be able to raise their objections at a hearing.
In some cases, the court may grant an ex parte, pre-indictment temporary restraining order where the government demonstrates that the property would be subject to forfeiture if the defendant were convicted and that notice would allow the defendant to hide or transfer the property. This order is effective for 10 days.
RICO Forfeiture Relief
Often, the unintended victims of RICO forfeiture law are innocent parties who are not guilty of any crimes such are spouses and property co-owners. The statute permits these parties to challenge an order of forfeiture by demonstrating that they had legal right, title, or interest in the property at the time the criminal acts occurred, or they were bona fide purchasers for value.
New York RICO Attorneys
If you are facing a RICO investigation or charge in New York, your most important asset in fighting for your rights is an experienced and knowledgeable criminal defense attorney with expertise in RICO cases.
Joseph Potashnik and Associates PC provide representation for individuals and businesses accused of RICO violations. Our team of skilled and energetic attorneys will work tirelessly in creating a strong defense and obtaining the best possible result in your case. We have over 75 years of combined criminal defense experience and we have defended over a thousand of federal cases in New York and across the country.
To learn more about how Joseph Potashnik and Associates PC can help you fight RICO charges, contact us at (212) 577-6677.