Sunday, September 14, 2003
Copyright © Las Vegas Review-Journal

UNDERSTANDING RICO: A hammer over their heads

Racketeering statute brought a new approach to federal corruption probes

The Racketeer Influenced and Corrupt Organizations statute, better known as RICO, stands in the shadows of several regional federal criminal investigations like the ultimate hitman. The mere possibility of its use is enough to make some suspects in public corruption and motorcycle-gang-violence cases pine for plea agreements.

If they fully realized what they might be in for, few defendants would risk the grim reality of a RICO conviction, which can bring enhanced sentences under the iron-clad federal guidelines, along with the forfeiture of millions of dollars and lucrative businesses.

Not that the current public corruption cases in San Diego and Las Vegas will rely on RICO as a hammer. In fact, with so many key defendants cooperating with the government in exchange for leniency, in the end there may be no need to bring out the Department of Justice's heaviest hitter.

But understanding the history and philosophy behind RICO is essential to gaining real insight into how the government approaches complex criminal and even post-Sept. 11 terrorist cases. It is an increasingly holistic approach that works from an awareness that criminal organizations come in all shapes, sizes and identities.

First, a little background: RICO was created in 1970 to allow prosecution of organized groups that commit a broad range of crimes without the violations being tied together by a single perpetrator or conspiracy. Prior to its passage, traditional mob cases were often tried singularly. While convictions came, the ruthless, secretive organization itself was not greatly weakened.

After RICO, mob families began to crack under the very real threat that members and associates could be indicted en masse for a wide range of criminal activity. It's one thing to ask a loyal soldier to sit five years in the penitentiary in the name of the family business. But even the strongest stand-up guy would have trouble fading the 20-year (and more) sentences that began accompanying RICO convictions.

Although RICO went on the books at a time La Cosa Nostra mob families were prominent fixtures of organized crime, the law has also been used effectively to combat drug cartel activity, white-collar groups, deep-rooted street gangs, Eastern European and Asian mob activity, rotten court systems, scandalous police units, and, of course, corrupt political regimes.

Its most recent application in Las Vegas came in mid-August, when 21 members and associates of the Rolling '60s Crips street gang were indicted on racketeering charges linking them to 15 murders, cocaine trafficking, and the operation of eight drug houses. It was, by all appearances, a traditional application of the statute.

But RICO can also be used to take down crooked politicians. Witness the prosecutions of Louisiana Gov. Edwin Edwards, Ohio Rep. James Traficant, and former Providence Mayor Buddy Cianci as three fast examples. Although it might not be used in the ongoing Las Vegas political corruption case linked to the Galardi topless bar empire, sources with intimate working knowledge of the investigation say the prosecutorial package was prepared at a level that easily might have been submitted as a RICO.

A meticulous vetting process

Robert Luskin knows RICO. As the special counsel to the Department of Justice's Organized Crime and Racketeering Section, he worked closely with the law and has watched it evolve over the past three decades. Since entering a second career as a University of Virginia law professor, Luskin has served as chairman of the American Bar Association's RICO committee.

He recalls that what began in 1973 as a law focused on busting mob families rapidly expanded into other areas of criminality. Early on, judges who did not fully appreciate RICO as an acronym, and mistakenly believed it was an ethnic slur, vowed not to allow its use. As higher courts endorsed its constitutionality, those lower court judges eventually came around.

Although some civil libertarians and scores of criminal defense bar members were scalded by its creation -- many argued that the original intent of the framers of the Constitution was to ban all criminal forfeiture -- RICO law has largely been settled for well over a decade.

"The ability to hang it over people's heads is a significant weapon," Luskin said recently from the Washington law office of Patton Boggs, where he is a partner.

It's also a complicated weapon.

Unlike more common prosecutions, possible RICO cases undergo a meticulous vetting process at the highest level. Although the law is three decades old, RICO prosecution memorandums are still sent for review to a Justice racketeering law review panel in Washington for a final recommendation.

"That level of scrutiny is something important," retired FBI Special Agent Walt Stowe, the former No. 2 man in the bureau's Las Vegas office, said recently. "It shows that prosecutors don't or can't use this statute frivolously."

Once approval is granted, the courtroom sales job begins.

To establish a RICO case at trial, a prosecutor must prove patterns of criminal predicate acts. Not all crimes fall into the racketeering category. Once that predicate-acts requirement is satisfied, the door is opened to establishing the structure of the criminal organization itself.

Because such things are by their nature often secret societies and schemes, it can be a difficult hurdle. The increased use of undercover investigators, confidential informants, cooperating witnesses, and recorded surveillance, has made that component much easier to establish.

In political cases, Luskin says, RICO can be used to remove corrupt officials from public office. There aren't many areas of criminal corruption where it isn't applicable.

"RICO is a very serious matter," Justice Department Organized Crime Chief Bruce Ohr said in a recent interview from his Washington office. "We don't charge RICO lightly. All RICO cases have to be approved in Washington. They are reserved for the most serious kinds of criminal conduct when we think normal criminal charges won't do the job.

"We make sure RICO is properly applied and that all those policies have been satisfied. Usually there's a lot of back and forth. It's not a rubber stamp review by any means.

"It allows us to recognize and prosecute conduct that otherwise we wouldn't be able to reach."

No statute of limitations

On the street, local cops and FBI agents for decades were frustrated by some criminal groups' elusiveness -- especially as they reinvented and reinvested their illegal activities into mainstream businesses. Legal empires were built from illegitimate finances and ill-gotten gains. Before RICO, it was extremely difficult for the government to grab those seemingly legitimate assets. But no more.

"RICO is a big hammer to bring out," FBI Public Corruption/Governmental Fraud Unit Chief Mike Anderson said from the bureau's Washington headquarters, citing the forfeiture provisions and traditionally heavier sentences associated with its use.

Retired FBI Special Agent George Togliatti, who worked organized crime cases for many years in Southern Nevada, said, "It's pretty lethal. You can get multiple subjects involved in multiple crimes, and you can get the feds involved in predicate offenses that without it would be just state violations. It's one of the most important tools. It can be very, very effective."

Here's part of what makes RICO special: Criminal relationships, even ones separated by many years, are fair game. In fact, that historical criminal association is part of RICO's reason for being.

For many years the statute of limitations didn't stretch far enough to encompass criminal enterprises that sometimes reached into several decades. RICO allows exceptions to that rule.

Given a hypothetical scenario similar to the two-pronged political corruption investigations in San Diego and Las Vegas, Luskin noted one prosecutorial possibility that might be lost on some associated with the defense.

"Sometimes things get split up that way for turf reasons," he allowed. "But sometimes it gets split up that way because the government wants two bites at the apple. They might figure `We'll get 'em coming or get 'em going.' Any of those is a real possibility.

"Would it be possible that someone's doing that so they can get two bites at the apple? Sure. I've seen it happen on a number of occasions."

Time will tell whether a RICO case is brought against the defendants in ongoing political corruption cases. Just having it the government's arsenal should be enough to give some people sleepless nights.

Said Stowe, "I don't think you can overstate the importance of the RICO statute in the past 30 years. It's been kind of a miracle drug for law enforcement to deal with the cancer of crime."

John L. Smith is a Review-Journal columnist.