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RICO - Racketeer Influenced and Corrupt Organizations

On October 15, 1970, the Organized Crime Control Act of 1970 became law. Title IX of the Act is the Racketeer Influenced and Corrupt Organizations Statute (18 U.S.C. §§ 1961-1968), commonly referred to as the "RICO" statute. The purpose of the RICO statute is "the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce." S.Rep. No. 617, 91st Cong., 1st Sess. 76 (1969). However, the statute is sufficiently broad to encompass illegal activities relating to any enterprise affecting interstate or foreign commerce.

Although initially enacted to fight organized crime, the Supreme Court has rejected a reading of RICO that applies only where the pattern of conduct is “characteristic either of organized crime in the traditional sense, or of an organized-crime-type perpetrator, that is, of an association dedicated to the repeated commission of criminal offenses.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 243 (1989). To the contrary, “the RICO statute provides that its terms are to be liberally construed to effectuate its remedial purposes.”

The Supreme Court has described an “association-in-fact” enterprise as “a group of persons associated together for the common purpose of engaging in a course of conduct” and as an “ongoing organization, formal or informal [with] various associates function [ing] as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981).

RICO convictions require proof of both the existence of an enterprise and the connected pattern of corrupt activity. Since making money is the purpose of every for-profit corporation, this purpose is wholly insufficient to establish an association-in-fact enterprise. According to the RICO statute, an “‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4).

An association-in-fact must be held together by a common purpose of engaging in a course of conduct, and it may be associated together for purposes that are both legal and illegal. An association-in-fact enterprise must be an ongoing organization however formal or informal; and the various participants of the union or group must function as a continuing unit, even if the group changes by gaining or losing participants over time. The term 'enterprise' includes both licit and illicit enterprises.

An association-in-fact enterprise does not itself comprise a legal entity. RICO convictions require proof of both the existence of an enterprise and the connected pattern of corrupt activity. The Supreme Court has instructed that an association-in-fact enterprise must possess three qualities: “a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle, 556 U.S. at 946.

An association-in-fact enterprise may have a domestic presence even if some participants in the enterprise are outside of the United States. Ohio Supreme Court Justice Paul E. Pfeifer wrote in 2015 that "proof of a pattern of racketeering activity may be sufficient in a particular case to permit a jury to infer the existence of an association-in-fact enterprise ... “We hold that the existence of an enterprise, sufficient to sustain a conviction for engaging in a pattern of corrupt activity under R.C. 2923.32(A)(1), can be established without proving that the enterprise is a structure separate and distinct from a pattern of corrupt activity”.

It is unlawful for a person knowingly to participate, directly or indirectly, in the affairs of an enterprise, when participation includes committing or causing to be committed two or more acts of qualifying criminal activity in or related to the affairs of the enterprise; or otherwise includes an act of participation with the intention that some known or unknown participant or participants of the enterprise would commit, or would cause to be committed, individually or collectively, two or more acts of qualifying criminal activity in or related to the affairs of the enterprise.

The review and approval function for all RICO matters has been centralized within the Organized Crime and Gang Section of the Criminal Division. Not every proposed RICO charge that meets the technical requirements of a RICO violation will be approved. Further, the Criminal Division will not approve "imaginative" prosecutions under RICO which are far afield from the congressional purpose of the RICO statute.

The Democratic National Committee on 20 April 2018 sued President Donald Trump's campaign, Trump's son, his son-in-law, the Russian Federation and Wikileaks, saying they conspired to help Trump win the 2016 presidential election by breaking into DNC computers and stealing tens of thousands of emails and documents. The Democratic National Committee charged that "the Trump Campaign was part of an Association-In-Fact Enterprise comprising Russia, the GRU, and GRU Operative #1, WikiLeaks, Assange, the Trump Campaign, Aras and Emin Agalarov, Misfud, and the Trump Associates, their employees and agents, and additional entities and individuals known and unknown. The Association-In-Fact Enterprise was formed by at least June 2016. From that time until November 8, 2016, the members of the Association-In-Fact Enterprise worked together to further their mutual goals of improving Trump’s electoral prospects and damaging the DNC."





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