The Labyrinth Known as RICO Conspiracy
Back in 1970, midway through Richard Nixon’s first term, Congress enacted the Racketeering Influenced and Corrupt Organizations Act (RICO) to combat a perceived rise in organized crime. See Pellegrino v. United States of Am. Transportation Sec. Admin., Div. of Dep’t of Homeland Sec., 937 F.3d 164, 179 (3d Cir. 2019) ) (“It was the declared purpose of Congress to seek the eradication of organized crime in the United States.”);18 U.S.C. §§ 1961–68. Now 55 years old, the structure of RICO mirrors organized crime as it was then practiced in Philadelphia, New York and Chicago by Il Cosa Nostra, “our thing,” more generally known as the Mob or the Mafia. Under the RICO template, a group of “associates” conspire to form an “enterprise” for the purpose of engaging in “racketeering activity” that affects interstate commerce. The theory was that “racketeers” threatened legitimate business, because RICO enterprises don’t pay taxes, could stifle competition by demanding protection money, and could ruin neighborhoods with soldiers engaged in loansharking, numbers games, and drug deals. The definition of “racketeering activity” is 781 words long, and ranges from murder to the “unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances.” See 18 U.S.C. § 1961 (1). The definition is so broad that it could be distilled to “any act that is illegal anywhere” without appreciably broadening the practical reach of the statute.
With the South Philly Mob now a memory, the Federal Government reserves RICO criminal indictments for show trials – big cases involving defendants who are familiar and more often infamous. RICO cases burn through resources like wildfire, often last for months, and usually feature multiple defendants, represented by squads of lawyers, scrambling to keep up with the parade of witnesses called by the US Attorney. As with the ongoing trial in US v Sean Combs, the testimony of Government witnesses often gets emotional, with descriptions of defendants’ racketeering conduct creating a trail of tears, from one disturbing incident to the next, on the witness stand.
For defense counsel, even worse than tears is the fear – a witness still so scared of the defendants that he finds it hard to testify, with nerves manifesting as a hushed voice, restricted eye contact, or simply the shakes. With minimum 15-year sentences looming in the event of conviction (and many more years likely to be imposed under the federal Sentencing Guidelines), the stakes in a RICO trial are life-changing. The tension triggers communication breakdowns between lawyers and defendants, shouting from defendant relatives escorted by US Marshals from the spectator area, and cross-examinations that last longer than they should, due to chronic shortages of preparation time when trial goes from 9 to 5, Monday through Friday. All in, a RICO trial exemplifies the defendants’ nightmare that is a federal prosecution.
The odds of the Government achieving convictions in a RICO case are higher than usual, because the broad language of the statute (combined with decades of accommodating judicial interpretations) allow the US Attorney to bring in all manner of visceral, “bad acts” evidence to prove the far more technical, and many would say incomprehensible, elements of a RICO conspiracy. As mentioned above, the core elements are that the defendant and at least one other person entered an agreement to form an “enterprise,” intended to engage in “racketeering activity,” which was in turn intended to affect interstate commerce. Since RICO conspiracy under 18 U.S.C. § 1962 (d) is a specific-intent crime (there is no such thing as attempted conspiracy), the agreement to enter the conspiracy is the key RICO element.
Oddly, the Government is not required to prove that a functioning “enterprise” actually resulted from the conspiracy, or that it actually engaged in “racketeering,” or that it even actually affected interstate commerce. However, the jury considers each of these elements, as defined by the “substantive” RICO violation provisions at 18 U.S.C. § 1962 (c), to help determine if the defendants really intended the RICO conspiracy to touch all the required bases. As the late Edward G. Smith (a fabulous District Judge who sadly passed away at age 62) observed in US v Shaquille Newson, a RICO case which spanned more than three years from the initial Indictment through trial:
Even if the jury finds that conspiracy, that was only a conspiracy to form an enterprise. It doesn’t even require the proof that an enterprise ever was formed, or that any racketeering activity took place, or that it even effected interstate commerce, et cetera. All the Government has to prove is that that’s what they intended. That was their object crime. So it’s really difficult with a RICO crime.
See US v Newson, jury charge conference (May 26, 2022). “Really difficult” is an understatement, and there were times during the three-hour jury instruction session in Newson where the bewilderment of most jurors, and the sleepy-eyed boredom of the rest, was painfully evident. Striving to keep the jury’s attention, Judge Smith helpfully simplified matters where possible: “And every time you hear of ‘racketeering activity,’ just keep thinking it’s a violation of certain enumerated federal law crimes and state law crimes.”
Since a conspiracy cannot by nature be a solo performance, RICO trials are usually multi-defendant proceedings like Newson, where trial kept the author of this article busy for six weeks, defending one of four people charged with RICO conspiracy and related crimes, including sex trafficking by force, fraud or coercion and murder. The “racketeering activity” alleged against our client’s co-defendants included stabbing a rival drug dealer to death (his collapse and bleeding out into the snow was captured on video), mutilation (by cutting a victim from ear to ear with a Bowie knife so that he resembled The Joker), imprisoning a teenage prostitute in a dog cage after the “generals” became dissatisfied with her productivity, and pushing a drug addict who hadn’t paid for his crack out the third floor window of a rowhouse, and then beating him on the asphalt with baseball bats. This man’s noticeable limp as he approached the witness stand made an impact far beyond his testimony.
A stark contrast of trial in US v Combs is that “Diddy” is the sole defendant, not sharing his side of the courtroom with multiple “associates” alleged to have intended the creation and maintenance of an “enterprise,” which was further intended to engage in “racketeering activity,” and thereby affect (even slightly) interstate commerce. The lack of indicted criminal “associates,” which a mob requires as a matter of common experience (the Godfather did not work alone), may leave room for the rare defense verdict in a RICO case. If Vito Corleone had been indicted for RICO, his many co-defendants would have included Sonny Corleone, Tom Hagen, Luca Brasi, Peter Clemenza and Michael Corleone, who eventually succeeded Vito as leader of the Corleone “enterprise.” In contrast, none of the people who helped Diddy with “Freak Offs” by paying male escorts, or allegedly blowing up cars or dangling people from 17 stories above the ground have been indicted with him. Diddy’s defense may yet successfully argue that far from a RICO conspiracy, his prosecution involves a successful rap artist turned billionaire businessman, the proverbial “mogul” who maintained unusual and at times all-consuming enthusiasms in his spare time. Immoral, disgusting, but not organized to do anything but cater to Diddy’s urge to party, which (even under the 781 word definition) is not racketeering activity.
Richard Maurer has defended serious federal criminal cases, including a three-month trial in United States v. Dr. Jeffrey Bado, the six-week RICO trial in US v Newson discussed above, and about 35 other jury trials. If you, or someone you know, may be facing an Indictment that includes RICO charges or otherwise, please contact Richard at 215-345-7000.
