When the FBI Comes Calling…®

MCNABB ON RICO CRIMES

Tony Soprano arrives home to a frantic phone call from his mother Livia, who's been detained by airport security. The tickets Tony gave her are stolen, -- booty from a criminal enterprise scheme. No sooner is Tony off the phone than the FBI shows up with a search warrant. They've found the rest of the stolen airline tickets in Tony's Suburban so he has no choice but to accompany them to FBI headquarters. Meanwhile, assured that, "they don't have bubkes," Tony's not convinced. "We're talkin predicates everywhere," Tony exclaims, "A RICO case. Twenty to life.1"

RICO, the dreaded acronym for the Racketeering Influenced and Corrupt Organizations act. The very mention of a RICO case strikes fear in the hearts of organized crime bosses from the fictional Tony Soprano to real life mob bosses Frank Costello and Carlo Gambino. RICO has attracted widespread attention because of its draconian penalties, including innovative forfeiture provisions and its broad draftsmanship. This has left it open to a wide range of applications, not all of which were foreseen or even intended by the Congress which enacted it2. The potency of its sanctions and the procedural advantages it bestows on prosecutors draws praise from law enforcement and aggressive criticism from the defense practice3.

Surprisingly, the statutes complexity required the interpretation of the United States Supreme Court in but a handful of cases. The defendants producing these criminal cases, however, were indeed colorful. The high Court has seen bona fide mobsters, porn kings, and corrupt law enforcement officials within its hallowed halls, each arguing against the government's action in their respective RICO prosecutions.

To begin, a historical account of RICO's legislative development, a source of great controversy, is necessary for any discussion involving interpretation by the United States Supreme Court. On October 15, 1970 the Organized Crime Control Act of 1970 was enacted. Included within this Act as Title IX was the controversial statute entitled "Racketeer Influenced and Corrupt Organizations" Act more commonly known as RICO and codified as 18 U.S.C. & 1961-1963. There remains an urban legend surrounding the naming of the statute which indicates the drafters of the RICO statute deliberately named the law the rather awkward Racketeer-Influenced and Corrupt Organizations Act so they could obtain the acronym RICO -- the name of the gangster portrayed by Edward G. Robinson in the film "Little Caesar." As the once-powerful mobster lay dying he uttered the famous last line, "Mother of God, is this the end of Rico?4"

The historical background of RICO reflects the expanding federal role in prosecuting organized crime. From the enactment of 18 U.S.C. & 1951 dealing with interference with commerce by threats of violence in 1934, the Hobbs Act in 1961 aimed at prevention of interstate and foreign travel in aid of racketeering enterprises, to the RICO statute, there has been an almost complete lack of political and judicial opposition to the federalization of law enforcement. This contrasts sharply with the long judicial and political defense of state's rights in areas such as economic regulation and civil rights5.

The legislative history of RICO began with President Lyndon Johnson's Commission of Law Enforcement and Administration of Justice, otherwise known as the Katzenbach Commission, which operated from 1965-1967. The three aspects of the Commission's report most relevant to RICO were: (1) its understanding of what organized crime is, (2) its emphasis on the dangers of organized crime's infiltration of legitimate institutions and (3) its recommendations for dealing with the problem6.

Perhaps encouraged by the impending 1968 elections, in which public perceptions of increased crime and civil disorder played a significant role, members of Congress were quick to introduce a variety of anticrime bills, including many that were specifically responsive to the Commission's recommendations. Included in the flurry of legislative activity were two bills introduced by Senator Roman Hruska7 that are generally considered ancestors of RICO8.

Senator Hruska's first two bills would have amended the Sherman Anti-trust Act prohibiting investment or use in one line of business, intentionally unreported income from a second line of business. His second bill created new civil and criminal penalties for the investment of income derived from various specified criminal activity in a business affecting interstate commerce. However, no action was taken on Senator Hruska's two bills9.

Senator John L. McClellan,10 in the next year's congressional session, introduced legislation aimed at organized crime. His anticrime package included a variety of proposals in the areas of evidence and criminal procedure, mostly derived from the Commission's recommendations, but suggested no need for changes in the substantive law of crimes11.

Thereafter, so as not to be outdone by his colleague, Senator Hruska introduced a new bill identified as the "Criminal Activities Profits Act," which would have made it a crime to invest any income derived from any of several enumerated federal offenses, or any intentionally unreported income, in any business enterprise affecting interstate commerce. His new bill placed great emphasis on the harm that organized criminals could do once entrenched in ordinary businesses. Racketeers, he feared, would use illegitimate tactics to secure monopoly power, with attendant anticompetitive damage to the economy. Unlike the Senator McClellan's bill or the Katzenbach Commission's recommendations, Senator Hruska's bill would not have dealt with these ills by giving law enforcement agencies additional investigatory tools to uncover and prove crimes committed by racketeers, whether or not the crime was committed before the infiltration that produced the capital or after it through and for the benefit of the penetrated business. Instead, like its immediate predecessors, the bill directly prohibited the entry of criminal money into the legitimate economy12.

Following hearings on the various anti-organized crime proposals, Senators Hruska and McClellan joined forces to introduce a revision of the Hruska bill, which was now restyled the "Corrupt Organizations Act of 1969." Although the bill was amended in several relatively minor aspects while it passed through the Senate and House Judiciary Committees, in its essence, the "Corrupt Organizations Act" was all but identical to the final version of Senate bill 1861 that was enacted into law as Title IX of the Organized Crime Control Act of 1970. Although the bill was entitled " Corrupt Organizations Act of 1969," the proposed new chapter to Title 18 of the United States Code was called "Racketeer Influenced Organizations." The two titles were later combined to yield the present acronymic title13. While Senators Hruska and McClellan were the legislative sponsors of the bill, the person primarily responsible for drafting the legislation was G. Robert Blakey14.

The purpose of the Organized Crime Control Act of 1970 was to enable the federal government to address a large and seemingly neglected problem. The view was that existing law, state and federal, were not adequate to address the problem of organized crime, which was believed to be of national dimensions. In other words, the government found that throwing mob bosses in prison did little to stop organized crime because the bosses were easily replaced. It was the declared by Congress "to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.15"

Congress viewed RICO principally as a tool for attacking the specific problem of infiltration of legitimate business by organized criminal syndicates. Congress found that organized crime in the United States a highly sophisticated, diversified, and widespread activity that annually drained billions of dollars from America's economy by unlawful conduct and the illegal use of force, fraud, and corruption. Organized crime activities in the United States were believed to weaken the stability of the Nation's economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten the domestic security, and undermine the general welfare of the Nation and its citizens. Further, there was evidence that organized crime derived a major portion of its power through money obtained from such illegal endeavors as syndicated gambling, loan sharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs, and other forms of social exploitation. This money and power were shown as increasingly used to infiltrate and corrupt legitimate business and labor unions and to subvert and corrupt our democratic processes16.

The RICO statute simply prohibits: (1) "persons" from engaging in a (2) "pattern" of (3) "racketeering activity" or (4) "collection of an unlawful debt" that have a specific relationship to an (5) "enterprise" (6) "affecting interstate commerce." However, this straightforward one sentence definition belies the sheer complexity of the statute and its vast reach.

From the statute, a "person" is defined as any individual or entity (such as a corporation) capable of holding a legal or beneficial interest in property17. This definition has yielded little or no controversy as it is broad enough to encompass virtually any defendant.

A "pattern" of racketeering activity, as defined under the statute, requires at least two acts of racketeering activity, one of which occurred after October 15, 1970 and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity. In normal usage, the word "pattern" is taken to require more than just multiple racketeering predicates. A "pattern" is an "arrangement or order of things or activity," and the mere fact that there is more than one predicate act is no guarantee that they fall into any "arrangement or order." It is not the number of predicates acts but the relationship that they bear to each other or to some external organizing principle that renders them "ordered" or "arranged." Unfortunately, the text of RICO fails to identify any forms of relationship or external principles to be used in determining whether racketeering activity falls into a pattern for purposes of the Act18.

A pattern is not formed by "sporadic activity," and a person cannot "be subjected to the sanctions of Title IX simply for committing two widely separated and isolated criminal offenses." Instead, the term "pattern" requires the showing of a relationship between the predicate acts, and of the threat of continuing activity. It is this factor of "continuity plus relationship" which combine to produce a pattern. RICO's legislative history reveals Congress' intent that to prove a pattern of racketeering activity a prosecutor must show that the racketeering predicate acts are related, and that they amount to or pose a threat of continued criminal activity19.

Congress defined the pattern requirement solely in terms of the relationship of the defendant's criminal acts one to another: "Criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." To establish a RICO pattern it must also be shown that the predicate acts amount to, or otherwise constitute a threat of, continuing racketeering activity. Therefore, a prosecutor must prove "continuity of racketeering activity" or its threat. "Continuity" is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition20.

Whether the predicate acts proven establish a threat of continued racketeering activity depends on the specific facts of each case. A RICO pattern may surely be established if the related predicate acts involve a distinct threat of long-term racketeering activity, either implicit or explicit. Thus, the threat of continuity is sufficiently established where the predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes. Such associations include, but extend well beyond, those traditionally grouped under the phrase "organized crime." The continuity requirement is likewise satisfied where it is shown that the predicate acts are a regular way of conducting defendant's ongoing legitimate business (in the sense that it is not a business that exists for criminal purposes), or of conducting or participating in an ongoing and legitimate RICO "enterprise.21"

The term "racketeering activity" refers to any one of a number of criminal violations. It may include any act or threat involving murder, kidnapping, gambling, arson, robbery, extortion, dealing in obscene material, or dealing in a controlled substance or listed chemical as they are defined in Section 102 of the Controlled Substance Act, which are chargeable under state law and punishable by imprisonment for more than one year. Racketeering activity also includes any act which is indictable under one of 44 provisions of Title 18 of the United States Code22 . Additionally, racketeering activity also relates to certain acts, which are indictable under title 29 of the United States Code23 as well as any offense involving fraud connected with a case under title 11 of the United States Code24. Racketeering activity may also include any act which is indictable under the currency and foreign transactions reporting act and nay indictable act under the Immigration and Nationality Act25 if such an act was committed for the purpose of financial gain.

The idiom "collection of an unlawful debt" is an alternative means of establishing a RICO charge in the absence of a pattern of racketeering activity. The unlawful debt here refers to those debts incurred from an illegal gambling venture which charges an illegal money lending rate. The illegality may stem from either federal or state law. The usurious or unlawful rate must be twice the enforceable rate26.

The word "enterprise" is defined as including any individual partnership corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity27.

The maxim "affecting interstate commerce" refers to either purely intrastate activities that nonetheless have a substantial interstate effect, or engaging in interstate or foreign commerce. Engaging refers to any time there is a direct engagement in either the production, distribution, or acquisition of goods or services in interstate commerce28.

The first RICO case to reach the United States Supreme Court was United States v. Turkette, 452 U.S. 576 (1981). A character worthy of a Mario Puzo29 novel, Novia Turkette Jr. was capo30 of a gang of hoodlums in Eastern Massachusetts. Turkette envisioned himself a modern day Al Capone exclaiming at one time, "If anybody wants to get anything done in this city, they have to come through me.31"

The Turkette gang engaged in a variety of criminal activity on a continuous basis from at least July of 1976 through May of 1978. Turkette managed the group in an organized and professional manner with different individual wiseguys performing specific and distinct roles. Their criminal escapades included: (1) a burglary ring, (2) a drug distribution operation, (3) an insurance fraud scheme, (4) an arson for hire service, and (5) bribery of pubic officials32.

The burglary ring consisted of Turkette, a co-defendant Edward Young, and an unindicted co-conspirator Kenneth Landers. For approximately two years beginning in July 1976, Turkette, Young, and Landers, together with various others, burglarized approximately 50 drug stores in the eastern Massachusetts area. The burglars followed a specific pattern in which each of the participants had a well-defined responsibility. After Turkette, Young, and Landers had arrived at a drug store in Young's car, Turkette would disconnect the burglar alarm. After switching off the alarm, Turkette would return to the car to monitor a police scanner for reports. Once satisfied that they had not been detected, Young and Landers would enter the store and remove those drugs that Young determined could be easily sold at the greatest profit on the street. While Young and Landers were in the store, Turkette remained in the car to check the scanner and to maintain a watch in the area. The trio would then drive to Young's house to inventory the drugs and divide them on either a cash or consignment basis for distribution. The burglars subsequently enlisted co-defendant Michael Kamens, the owner of a burglar alarm company, to disengage the more sophisticated alarm systems. Kamens also agreed to ignore certain alarms of his unsuspecting customers in order to allow Turkette, Young, and Landers to commit various burglaries33.

The defendant's own father, Novia Turkette Sr. used his house to store the drugs not immediately sold. Young would later deliver the drugs to various distributors. Apparently, Turkette Sr. was a habitual drug dealer. In fact, he was arrested again in 1995 at the age of 73 for conspiracy to distribute cocaine34.

In addition to burglarizing drug stores to supply their distribution operation, the Turkette gang also devised a scheme to defraud insurance companies, which developed into an arson for hire service. Turkette and Landers were again the principal participants, and co-defendants Thomas Brown, Phillip A. Fraher, John Vargas, Kamens and Young took part, among others, in one or more of the frauds. In most of these instances, Turkette and Landers would be contacted on behalf of the owner to make arrangements to destroy the property in question. At other times, one or more of the co-conspirators directly participated in the initiation and submission of the fraudulent insurance claim as well as in the destruction of the property. After an acceptable agreement was reached, Turkette would advance the money necessary to buy supplies, and Landers would burn the property. Thereafter, Turkette and Landers would collect their fee. For instance, in November 1976, the owner of a delicatessen in Sharon, Massachusetts, wanted his business premises burned so that he could recover the insurance proceeds. He asked a local attorney about someone to do the arson job, and Turkette and Landers arrived a short time later. They met with the owner on several occasions and agreed to perform the arson for $1,00035.

In order to protect their drug and insurance-fraud operations, the conspirators devised a scheme to bribe police officers and witnesses. For example, co-defendant Gabriel DeMarco, working with Turkette and Young, paid off police officers to fix 10 to 12 cases, including one involving Landers in which the charges were dismissed. On another occasion, Turkette made repeated payments to induce a 14-year-old witness not to testify or identify him in connection with an attempted burglary of a drug store, and as a result Turkette was acquitted. The conspirators also had a continuing arrangement with Charles Werner, a local police officer, to furnish them with general protection and information about police activities. However, Werner reported these bribes to the FBI and recorded a number of conversations he had with Turkette and others. Werner's recordings and trial testimony provided incriminating evidence against the conspirators and corroborated Landers' account of their criminal ventures36.

The ultimate question in Turkette v. United States was whether RICO could be applied to an "enterprise" which was wholly criminal in nature. The United States Supreme Court heard arguments from the government suggesting the legislative history of the RICO statute supported the inclusion of illegal operations within the "enterprise" definition. The government argued, "The statute on its face belies the holding that an entirely criminal operation can not constitute an "enterprise.37"

The government further argued that Congress's "Statement of Findings and Purpose" in the Organized Crime Control Act of 1970 indicates the RICO provisions were directed at wholly illegal enterprises. Congress expressly found that "(1) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America's economy by unlawful conduct and the illegal use of force, fraud, and corruption; and (2) organized crime derives a major portion of its power through money obtained from such illegal endeavors as syndicated gambling, loan sharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs, and other forms of social exploitation. Concluding that these activities have a pernicious effect on the American society and economy, Congress declared that "it is the purpose of this Act to seek the eradication of organized crime in the United States by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." While it is true that one of Congress' concerns was the use of organized crime's "money and power to infiltrate and corrupt legitimate business and labor unions", nothing in the Statement suggests in any way that Congress sought to confine its efforts to such infiltration and corruption and to ignore the other aspects of organized crime's activities38.

The government went on to argue that eight of the ten39 Courts of Appeals have held that RICO is applicable to wholly illegitimate enterprises. Only40 the First Circuit by its decision (in this case) restricted the application of RICO to legitimate enterprises41.

Turkette also argued that the legislative history supports the analysis of the First Circuit Court of Appeals that RICO was not intended to punish criminal conduct itself but was instead concerned with protecting legitimate business enterprises from victimization or exploitation by criminals. RICO was enacted because Congress found that organized crime's "money and power are increasingly used to infiltrate and corrupt legitimate business thereby weakening the stability of the Nation's economic system, harming innocent investors and competing organizations, interfering with free competition, seriously burdening interstate and foreign commerce, threatening the domestic security, and undermining the general welfare of the Nation and its citizens."

Additionally, Turkette focused his argument on the statutory wording suggesting the proposition that RICO did not apply to wholly criminal enterprises because of the ejusdem generis principle. Ejusdem Generis is a rule of statutory construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed. For instance, in the phrase, "horses, cattle, sheep, pigs, goats, or any barnyard animal" the general language, "or any other barnyard animal despite its seeming vast breadth would be held to include only four legged hoofed mammals and thus would exclude chickens42.

Under the principle of ejusdem generis, the final catchall phrase "any... group of individuals associated in fact..." should also be limited to legitimate enterprises. If Congress had intended to include "criminal enterprises" in the definition section, it would have done so. Contrary to the plain meaning of 18 U.S.C. & 1961(4)43, the government uses the word "any" to engraft into the section a phrase that is not there.

The U.S. Supreme Court held there are no restrictions upon the associations embraced by the definition. An "enterprise" includes any union or group of individuals associated in fact. On its face, the definition appears to include both legitimate and illegitimate enterprises within its scope. It no more excludes criminal enterprises than it does legitimate ones. Further, had Congress not intended to reach criminal associations, it could easily have narrowed the sweep of the definition by inserting a single word, "legitimate." However, it did nothing to indicate that an enterprise consisting of a group of individuals was not covered by RICO if the purpose of the enterprise was exclusively criminal44.

The Turkette decision expanded the grasp of the RICO statute. However, the most controversial aspect of RICO remains its far-reaching forfeiture provisions. To provide insight into just what is a forfeiture provision, a brief historical analysis of forfeiture and its various species is required. The origins of forfeiture extend to biblical and Judeo-Christian practices. Three distinct types of forfeitures were utilized by English common law and form the basis of modern forfeiture provisions. The three types included: (1) deodand, (2) statutory forfeiture and (3) forfeiture upon conviction of a felony or treason45.

A deodand refers to any personal chattel, which was the immediate cause of death of any reasonable creature, forfeited to the crown and applied to pious uses46. At common law the value of an inanimate object directly or indirectly causing the accidental death of a King's subject was forfeited to the Crown as a deodand. The origins of the deodand are found in the Bible. For instance, in Exodus 21:28, "If an ox gore a man or a woman, and they die, he shall be stoned and his flesh not eaten." This reflected the view that the instrument of death was accused and that religious expiation was required. The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man's soul, or insure that the deodand was put to charitable uses. When application of the deodand to religious or eleemosynary purposes ceased, and the deodand became a source of Crown revenue, the institution was justified as a penalty for carelessness47.

Second, English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws. The most notable of these were the Navigation Acts of 1660, which required the shipping of most commodities in English vessels. Violations of the Acts resulted in the forfeiture of the illegally carried goods as well as the ship that transported them. The statute was construed so that the act of an individual seaman, undertaken without the knowledge of the Captain or owner, could result in forfeiture of the entire ship48.

Both Deodand and the English statutory forfeiture laws are examples of In Rem forfeitures. In Rem forfeitures are based on the legal fiction, which considers the property to be the guilty party. Thus, because the property is deemed to be the guilty party it is named as the defendant and if found to tainted, it may be forfeited despite the owners innocence49.

The third kind of common-law forfeiture fell only upon those convicted of a felony or of treason. The convicted felon forfeited his chattels to the Crown and his lands escheated to his lord. The convicted traitor forfeited all of his property, real and personal, to the Crown. Such forfeitures were known as forfeitures of estate. These forfeitures obviously served to punish felons and traitors and were justified on the ground that property was a right derived from society, which one lost by violating society's laws50. This type of forfeiture can be classified as In Personam.

An In Personam forfeiture results in the automatic forfeiture of the contraband once a defendant is convicted of a felony. RICO forfeitures are In Personam forfeitures. Because RICO forfeitures are In Personam and do not depend upon the legal fiction that the property is tainted and thus guilty, it has been used to cause forfeiture of a myriad of assets51. Although well grounded in the English common law, In Personam criminal forfeiture penalties like those authorized under 18 U.S.C. & 196352 were unknown in the federal system until the enactment of RICO in 197053. For example, under RICO it is mandatory that the defendant not only forfeit the contraband or its traceable proceeds but also their property constituting the defendant's "interest" in the racketeering enterprise and property affording the violator a source of influence over the RICO enterprise54.

The U.S Supreme Court answered the question of what constituted an "interest", which could be forfeited, two years after the Turkette decision in Russello v. United States, 464 U.S. 16 (1983). The sole question in Russello was whether profits and proceeds derived from racketeering activity constituted an "interest" within the meaning of the statute and thus subject to forfeiture.

The U.S. Supreme Court held that the meaning of "interest" encompasses all forms of real and personal property. The Court also found that Congress did not wish the forfeiture provisions to be limited by rigid or technical definitions drawn from other areas of the law and therefore chose the term "interest" to describe those things subject to forfeiture under the statute. Congress no doubt selected this term because of its breadth and consistency with other RICO terms and concepts and was thus meant to be construed broadly55.

The decision in Russello v. United States constitutionalized that a defendant's assets, which are proceeds of racketeering activity, are forfeitable to the government. The obvious questions now arising are: (1) when does the racketeering activity in question yield proceeds and (2) what are the possible ramifications of such a forfeiture? Attempting to preserve the simplicity of the RICO statute while sustaining its original goals, Congress in 1984 passed the Comprehensive Forfeiture Act, which expanded the RICO forfeiture provisions in several ways. First, a "relation back" clause provides that property is forfeited to the government as of the date the crime occurs56. Second, the government can now get forfeiture of proceeds the defendant as transferred to third parties, unless the third parties meet one of two exceptions: (1) the third party had an interest in the property before the defendant committed the crime, or (2) the third party was a bona fide purchaser from the defendant who had no reason to know the property was subject to forfeiture57. Third, courts can now restrain the defendant's use of the property even before conviction. If the defendant has been indicted, no hearing is required prior to a restraining order's issuance. However, a hearing is required if the defendant has not been indicted58. Third parties cannot intervene in the criminal case but must wait until the defendant is convicted before filing a claim against the United States in a civil action60.

The extent of this new aspect of RICO's already broad forfeiture provision required clarification from the United States Supreme Court in two cases. In United States v. Monsanto, 491 U.S. 600 (1989) and Caplin & Drysdale v. United States, 491 U.S. 617 (1989) the high Court addressed the reach of the new forfeiture act and its constitutional ramifications. Both cases were argued on the same day, both were decided on the same day and for purposes here will be discussed together. Monsanto and Caplin & Drysdale challenged the new forfeiture provision and pesented three main issues for the U.S. Supreme Court. One, do these forfeiture statutes apply to proceeds the defendant uses or wants to use to pay his attorney's for defending him in the criminal case? Second, if the statutes do apply to attorney's fees, is forfeiture mandatory or a matter of the trial judge's discretion? Third, if attorney's fees are forfeitable, are the statutes unconstitutional under the Sixth Amendment right to counsel or the Fifth Amendment due process clause61?

The U.S. Supreme Court held that the Comprehensive Forfeiture Act of 1984 did not unconstitutionally seize the accused's property, did not interfere with the accused's right to obtain counsel, and did not provide any discretionary release by the courts of seized assets to pay for attorney's fees62. The Court further held that the statute did not contain an exception for assets used as payment for legal services and the statute was consistent with the Fifth and Sixth Amendments63.

The most controversial aspect of the RICO forfeiture provision arises via the attempted control of obscenity. Congress added the violations of both state and federal obscenity laws to the list of predicate acts in a 1984 RICO amendment. Members of Congress justified this addition by citing the proliferation of pornography and the involvement of organized crime in that industry64. In 1984, Senator Jesse Helms65 proposed amending RICO to include obscenity as one of the predicate acts because of the increasing infiltration of organized crime in that industry. There was, however, no discussion in Congress as to the possible First Amendment implications before the passage of this amendment also in 1984. Following the publication of the Final Report of the President's Commission on Pornography in 1986, former Attorney General Ed Messe formed a separate division of the Justice Department devoted to curtailing obscenity as well as a task force to combat obscenity in 198766.

To illustrate the magnitude of the RICO statute and its forfeiture provisions, imagine you are the owner of a local bookstore, marveling at the enormous variety of titles you offer to your customers. You assume that you may place virtually any book you want on the shelves, motivated only by the dictates of the marketplace. After all, this is the United States. The Constitution protects citizens from government censorship of the books they read. What if you learned, however, that if a court determined that if just two books of the thousands of titles in your bookstore were obscene, the government could seize and destroy every book in your store and every book in any other store you own? What if you also learned that you might lose nearly all of your personal assets and face a lengthy prison term? Finally, what if you learned that the definition of obscenity is so difficult to formulate, every community in the country has its own standard? Confused and intimidated, you remove numerous titles from the shelves fearing that if even two books sold over a ten-year period violated your state's obscenity laws, you could lose your entire business and be sent to prison. Is this a scene from an Orwellian nightmare or a possibility in the United States today67?

The magnitude of the RICO forfeiture provisions was challenged in Alexander v. United States, 509 U.S. 544 (1993). Ferris Alexander presided over a flourishing porno empire for nearly 30 years. His so-called "adult entertainment" business consisted of selling magazines and sexual paraphernalia, showing films, and selling and renting videocassettes. Alexander plied his trade in retail stores, rental stores, and movie theaters located throughout Minnesota. The sale and rental of the sexually explicit materials generated millions of dollars in annual revenues68.

Alexander used elaborate means to conceal his wealth. He established sham corporations and used false names and the names of employees in opening bank accounts, obtaining licenses, and responding to state and federal reporting requirements. He also filed false tax returns in 1982 and 1983 that under-reported his gross receipts by approximately $2.7 million. At the time of his arrest, Alexander's adult entertainment empire included 13 retail stores and a warehouse. Alexander received shipments of pornographic materials at the warehouse, where the materials were then wrapped in plastic, priced, boxed, and distributed to his retail outlets. Alexander testified that he was the sole owner of the 13 retail stores and the wholesale business. The revenue generated by the stores was brought to Alexander at the warehouse and main office. Alexander placed some of the cash in bank accounts that were used to pay business expenses and he converted the rest into large denomination bills, cashier's checks, or money orders69.

Following a four-month trial, a federal jury in May 1989 found Alexander guilty, of thirty-four counts of disseminating obscene material. Specifically, the jury declared four of the magazines and three of the videos sold by Alexander obscene. This finding enabled the trial court then to invoke RICO and convict Alexander on charges of "receiving and using income derived from a pattern of racketeering, in violation of 18 U.S.C.& 1962(a); one count of conducting a RICO enterprise, in violation of Section 1962(c); and one count of conspiring to commit that offense in violation of 1962(d)." Utilizing RICO's powerful forfeiture provision, the trial court dismantled Alexander's entire business enterprise ordering the confiscation of nearly $9 million in cash and the seizure of his entire stock of erotic materials. The forfeiture order covered all inventory, including thousands of sexually expressive books, magazines, videos, assorted sexual paraphernalia, televisions, video recorders, cash registers, furniture, three vehicles and ten pieces of commercial property. Additionally, the trial court levied a $100,000 fine and sentenced the fallen prince of porn to a six-year prison term70.

Following the Eighth Circuit's affirmation of his conviction, the federal government quickly disposed of Alexander's real property by quitclaim deed and burned the inventory of pornographic books, films and magazines confiscated from his California warehouse and various retail outlets. The appellate court approved of the destruction of Alexander's stock, noting that once the government obtains two or more obscenity convictions, RICO provides for the indiscriminate seizure of all implicated assets; and the First Amendment presents no barrier to total forfeiture71.

Alexander did not challenge either the 6-year prison sentence or the $100,000 fine imposed against him as punishment under his RICO convictions72. He did challenge the forfeiture punishment he received arguing that the RICO forfeiture provisions were: (1) a prior restraint on free speech and per se violation of the First Amendment, (2) overbroad as the provisions were fatally flawed because they resulted in the seizure of items protected by the First Amendment as well as assets traceable to protected items, (3) grossly disproportionate as the forfeiture of his $25 million dollar business was relinquished due to disseminating four obscene magazines and three video tapes, and (4) cruel and unusual punishment as (a) it divests the offender of his entire estate for offenses that may not be crimes in some jurisdictions, (b) are misdemeanors in others, (c) involve only consenting adults and (d) require little or no showing that the offender knew the material at issue was obscene73.

Conversely the government argued: (1) that a RICO forfeiture is not a prior restraint on free speech as a prior restraint requires no showing that the restrained person actually committed a criminal offense, (2) that the complete ban on obscenity based forfeiture would be unworkable and make adult-oriented erotic businesses even more attractive to organized crime, (3) that Alexander fails to explain why an obscenity triggered RICO forfeiture is any different from the substantial fines and prison terms that can be imposed for the obscenity offenses which trigger the RICO forfeiture, (4) that Alexander's overbreadth argument is flawed in that a RICO forfeiture is aimed only at unprotected, obscene speech and publications and thus can not be overbroad, and (5) that Alexander's cruel and unusual argument that the forfeiture in this case is grossly disproportionate to the seven items adjudged obscene is misplaced in that Alexander sold or rented multiple copies of the seven obscene items and disseminated many other items which were obscene74.

Alexander v. United States presented the U.S. Supreme Court with two clear-cut constitutional issues, which implicate the substantial competing interest of law enforcement and that of free expression. A decision for Alexander on the First Amendment issue would protect persons who own or operate businesses that disseminate adult-oriented erotica even though such a decision might make these businesses prime targets for investing money gained from organized crime. On the other hand, a decision for the government would constitutionalize asset forfeitures, which implicate the First Amendment, even though such a decision might lead to self-censorship or to the suppression of otherwise protected speech and press activity75.

The U.S. Supreme Court in a very divided 5 to 4 opinion with Justice Souter's sole concurrence providing the swing vote upheld the conviction and affirmed the Eighth Circuit's ruling. The majority opinion, written by Chief Justice Rehnquist and joined by Justices White, O'Connor, Scalia and Thomas, evaluated and rejected each of Alexander's First Amendment challenges to RICO. The Court decided that RICO's post-trial forfeiture provisions were valid subsequent punishments for criminal violations and not unconstitutional prior restraints on speech76.

The Majority rejected Alexander's claim that RICO's forfeiture provisions, when applied to obscenity violations, constitute an unconstitutional prior restraint on speech. They dismissed the argument that because such a forfeiture prohibits future presumptively protected speech in retaliation for prior unprotected speech, it constitutes a prior restraint on that protected speech. They further reasoned that to accept Alexander's argument that a post-trial forfeiture resembles an injunction enjoining future speech would destroy the important distinction between prior restraint and subsequent punishment77.

The Majority contrasted unconstitutional prior restraints with the RICO forfeiture order in that neither forbade Alexander from engaging in expressive activity in the future, nor required him to obtain prior approval for expressive activities. Rather, according to the Majority, the forfeiture merely deprived Alexander of assets that were related to his previous racketeering violations. Thus, Alexander forfeited the protected expressive materials not because they were suspected of being obscene, but because they were directly related to his racketeering violations. RICO, the Court noted, mandates the forfeiture of assets because of their financial role in the racketeering enterprise. The statute is oblivious to the expressive or non-expressive nature of those assets78.

Chief Justice Rehnquist stressed that the forfeiture order in this case imposes no legal impediment to or no prior restraint on Alexander's ability to engage in any expressive activity he chooses. Alexander is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials. However, he just cannot finance these enterprises with assets derived from his prior racketeering activities79.

The Majority also rejected Alexander's claim that RICO forfeiture provisions are constitutionally overbroad because they are not limited to obscene materials and the proceeds from the sale of those materials. They noted that RICO does not criminalize constitutionally protected speech and therefore materially differs from the statutes in overbreadth cases. The Majority conceded that RICO's stringent forfeiture provisions may cause some booksellers to censor themselves and remove marginally protected materials from their shelves, however, RICO's forfeiture provisions would have no more of a chilling effect on free expression than a prison sentence or large fine80.

In a heated dissent, Justices Kennedy, Blackmun, and Stevens as well as Justice Souter in part, all expressed outrage at the majorities reasoning. Justice Kennedy, writing for the dissent wrote, "Until now I had thought one could browse through any book or film in the United States without fear that the proprietor had chosen each item to avoid risk to the whole inventory and indeed to the business itself. This ominous, onerous threat undermines free speech and press primarily essential to our personal freedom.” Justice Kennedy further commented, “This Court's decision is a grave repudiation of First Amendment principles…81" Thus, in theory if your local video store carried titles such as "Gone with the Wind", "Dumbo" and "The Last Tango in Paris" along with "Debbie Does Dallas" and "Deep Throat", the Court would allow the entire inventory to be forfeited if the latter two were found to be obscene82.

Both Turkette and Alexander involved defendants who were leaders of their respective enterprises. However, conspiracy to violate the RICO statute is a punishable offense as well under 18 U.S.C. & 1962(d)83 and can be charged against one who is not the director of an organization. The question of what is required of an individual to be part of a RICO conspiracy was in conflict among the Courts of Appeal. Decisions of the First, Second, and Tenth Circuits required that under the RICO conspiracy provision, the defendant must himself commit or agree to commit two or more RICO predicate acts84. The eight other Courts of Appeals85 took a contrary view86.

The United States Supreme Court resolved the conflict in Salinas v. United States, 522 U.S. 52 (1997). Mario Salinas was the Divisional Chief for Detention of the Hidalgo County Sheriff's Office. His co-defendant, Brigido Marmolejo, Jr., was the Sheriff of Hidalgo County and was responsible for the operation of the Hidalgo County Jail. Salinas was his second in command at the Jail. The Hidalgo County Jail was built and improved with an $850,000 federal grant issued pursuant to a grant contract executed between the United States Marshals Service and Hidalgo County in May 1984. Under that grant agreement, the County agreed to house federal prisoners in the completed facility. The agreement between the federal government and the County established a federal program for providing "suitable quarters for the safekeeping, care, and subsistence" of persons held in custody under federal law87.

A secondary agreement between the Marshals Service and the County, executed by Sheriff Marmolejo on behalf of the County, established specific provisions for the County's housing of federal prisoners, including the compensation to be paid to the County. Under that agreement, it was estimated that the federal government would pay the County approximately $915,000 annually for housing federal prisoners88.

The Hidalgo County Jail did not permit conjugal visits. During most visits, the inmate was separated from his visitors by a glass partition. The Jail also allowed one 30-minute family contact visit during a prisoner's incarceration with additional contact visits permitted at the discretion of Jail officials in special cases, such as a death in the family. Contact visits took place in the attorney visiting room, the booking area, or the detention squad room, and were subject to observation by guards. Under the Jail's policy, if an ordinary contact visit became too physically intimate, the guards, after a warning, would terminate the visit89.

Homero Beltran-Aguirre (Beltran) was a federal prisoner housed in the Hidalgo County Jail pursuant to the County's agreement with the federal government. Beltran was transferred to the Jail on June 7, 1991, and remained there until April 14, 1992. He was transferred to another facility, but returned to the Jail on November 6, 1992, and remained there until April 26, 1993. In August or September 1991, Beltran agreed to pay Marmolejo a series of bribes in exchange for conjugal visits at the Hidalgo County Jail. Beltran agreed to pay Marmolejo a fixed rate of $6,000 per month for weekly visits with his wife, and also to pay $1,000 for each such visit. Beltran also paid for intimate contact visits with his girlfriend on at least five occasions. The visits occurred two days a week during the period in which Beltran was incarcerated at the Jail90.

Several of the conjugal visits occurred in Sheriff Marmolejo's office. On a few occasions, Salinas stood outside the office supervising the visits. Marmolejo informed Beltran's brother-in-law, Juan Antonio Guardado, who arranged for some of the payments, that whenever the Sheriff was unavailable, Salinas should be contacted about the conjugal visits. In January 1992, Beltran instructed Guardado to purchase four pairs of Rado watches costing approximately $8,500. Beltran then instructed Guardado to give Salinas and Marmolejo each a pair of watches, and instructed Salinas to give another pair to Captain Andres Alaniz, which Salinas did. On another occasion, Guardado gave Salinas a 1984 Chevrolet Silverado pickup, valued at $3,000-$4,00091.

The RICO conspiracy count of the indictment, Count 2, alleged that "each defendant agreed upon two or more of the acts of racketeering activity, as specified in paragraph 7 of Count One, would be committed in the conduct of the affairs of the enterprise." The alleged pattern of racketeering activity consisted of 14 state felony bribery offenses, in violation of Texas Penal Code, Section 36.02(a). There was no allegation that each defendant agreed personally to commit two racketeering acts92.

The sole RICO issue in Salinas v. United States was whether there could be no conspiracy offense unless the defendant himself committed or agreed to commit the two predicate acts necessary for a substantive RICO offense under 18 U.S.C. & 1962(a). The U.S. Supreme Court heard arguments from Salinas that the view adopted by the First, Second and Tenth Circuits provided the better interpretation of the RICO conspiracy statute. Further, Salinas argued the doctrine of federalism was in issue in this case. He asserted that although purporting to use the state statutes as predicate acts for RICO, in fact the lower Federal Courts have created their own interpretations of state law and have in essence established a federal standard of conduct for state officials, which is a clear violation of federalism principles93. It is probable, that Salinas attempted to invoke the principles of federalism in order to sway the more conservative justices onto his side.

The government argued that the conspiracy count did not charge that any of the four conspirators agreed personally to commit two racketeering acts; rather, it alleged and the jury found that Salinas endorsed two or more acts of racketeering activity which would be committed while conducting the affairs of the enterprise. The government continued that Salinas's proposed interpretation for the conspiracy rule is contrary to the traditional principles of conspiracy law and there is no indication in the RICO statute that Congress intended to impose such a novel and strict requirement of proof in order to convict RICO conspirators94.

The government further argued that the absence of any requirement that a conspirator agree personally to the commission of a substantive offense stems from the fundamental point that "a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy." Entering into a conspiracy is prohibited by law not merely because the conspirator has a desire or intent that the law be violated, but because, by entering into the arrangement to commit a crime, the conspirator creates a greater danger that the crime will in fact be committed by someone. In a conspiracy, "so long as the partnership in crime continues, the partners act for each other in carrying it forward." Thus, one may be guilty of conspiracy to commit an offense even if he is incapable of committing the substantive offense95.

The United States Supreme Court held, in a unanimous opinion, unlike the general conspiracy provision applicable to federal crimes, which requires at least one of the conspirators to commit an "act affecting the object of the conspiracy", there is no requirement of some overt or specific act in the statute before us. The RICO conspiracy provision is even more comprehensive than the general conspiracy offense. Further, to require and overt act to be proven against every member of the conspiracy, or a distinct act connecting him with the combination alleged, would not only be an innovation upon established principles, but would render most prosecutions for the offense worthless. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public and so punishable in itself96.

RICO has proven itself to be a powerful tool for law enforcement. Its apparent breadth is tempered only by its structural requirements and the few cautious judicial interpretations. While RICO remains one of the most complex and controversial statutes of the federal system, the U.S. Supreme Court has provided interpretation on but a few occasions. At present, the high court has yet to limit the vast reach of RICO prosecutions and should the current ideological makeup of the Court remain, it seems unlikely they will do so anytime in the future.

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More information can be found below on the following subjects:

When the FBI Comes Calling. . . You May Be Charged with RICO Crimes

See a list of Supreme Court cases relating to RICO crimes.

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FOOTNOTES

¹The Sopranos: Funhouse Home Box Office productions, a Division of Time Warner Entertainment Company, L.P. Back to article.

²Gerald E. Lynch, RICO: The Crime of Being a Criminal, Parts I & II, 87 Colum L. Rev. 661 (1989). Back to article.

³Id. at 661-662. Back to article.

⁴Barbara and David P. Mikkelson, RICO Suave, (visited September 19, 2002) . Back to article.

⁵Lynch, supra at 663. Back to article.

⁶Lynch, supra at 666-667. Back to article.

⁷HRUSKA, Roman Lee, a Representative and a Senator from Nebraska. Born in David City, Butler County, Nebraska on August 16, 1904. He attended the public schools, the University of Omaha, and the University of Chicago Law School and graduated from Creighton University College of Law, Omaha, Nebraska, in 1929. He was admitted to the bar in 1929 and commenced practice in Omaha, Nebraska. Elected as a Republican to the Eighty-third Congress and served from January 3, 1953, until his resignation November 8, 1954, having been elected to the United States Senate, November 2, 1954, to fill the vacancy caused by the death of Hugh Butler. He assumed office November 8, 1954; reelected in 1958, 1964, and again in 1970 and served from November 8, 1954, until his resignation December 27, 1976. A resident of Omaha, Nebraska until his death on April 25, 1999, due to complications from a broken hip following a fall. Back to article.

⁸Lynch, supra at 673. Back to article.

⁹Id. Back to article.

¹⁰McCLELLAN, John Little, a Representative and a Senator from Arkansas was born in Sheridan, Grant County, Ark., February 25, 1896. He studied law and was admitted to the bar in 1913, when he was seventeen where he commenced practice in Sheridan, Ark. During the First World War he served in the United States Army as a first lieutenant in the Aviation Section of the Signal Corps 1917-1919. He then moved to Malvern, Ark., in 1919 and continued the practice of law as prosecuting attorney of the seventh judicial district of Arkansas 1927-1930. He was elected as a Democrat to the Seventy-fourth Congress; reelected to the Seventy-fifth Congress (January 3, 1935-January 3, 1939). He was not a candidate in 1938 for reelection but was an unsuccessful candidate for election to the United States Senate. He resumed the practice of law in Camden, Ark. until elected as a Democrat to the United States Senate in 1942; reelected in 1948, 1954, 1960, 1966, and again in 1972 and served from January 3, 1943, until his death in Little Rock, Ark. Back to article.

¹¹Lynch, supra at 676. Back to article.

¹²Id. Back to article.

¹³Id. Id. at 676-677. Back to article.

¹⁴Professor G. Robert Blakey is the nation's foremost authority on the Racketeer Influenced and Corrupt Organization Act (RICO). He has served on the Notre Dame Law School faculty for nearly 20 years, from 1964 to 1969 and since 1980. He teaches in the areas of criminal law and procedure, federal criminal law and procedure, and jurisprudence. He earned his B.A. cum laude and his J.D. from Notre Dame in 1957 and 1960, respectively. His extensive legislative drafting experience resulted in the passage of the Crime Control Act of 1973, the Omnibus Crime Control Act of 1970 and the Organized Crime Control Act of 1970, Title IX. He has been personally involved in drafting and implementing RICO-type legislation in 22 of the more than 30 states that have enacted racketeering laws. He frequently argues in or consults on cases involving RICO statutes at both the federal and state levels, including several cases before the United States Supreme Court. Back to article.

¹⁵United States v. Turkette, 452 U.S. 576, 586, 589 (1981). Back to article.

¹⁶Id. at 588. Back to article.

¹⁷18 U.S.C. & 1961(3). Back to article.

¹⁸H.J. INC. v. Northwestern Bell Telephone Co. 492 U.S. 229, 238 (1989). Back to article.

¹⁹Id. at 239. Back to article.

²⁰Id. at 240-241. Back to article.

²¹Id. at 242-243. Back to article.

²²Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1028 (relating to fraud and related activity in connection with identification documents), section 1029 (relating to fraud and related activity in connection with access devices), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to bank fraud), section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship papers), sections 1461-1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), section 1542 (relating to false statement in application and use of passport), section 1543 (relating to forgery or false use of passport), section 1544 (relating to misuse of passport), section 1546 (relating to fraud and misuse of visas, permits, and other documents), sections 1581-1588 (relating to peonage and slavery), section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful welfare fund payments), section 1955 (relating to the prohibition of illegal gambling businesses), section 1956 (relating to the laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity), section 1958 (relating to use of interstate commerce facilities in the commission of murder-for-hire), 2251, 2251A, 2252, and 2260 (relating to sexual exploitation of children), sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles), sections 2314 and 2315 (relating to interstate transportation of stolen property), section 2318 (relating to trafficking in counterfeit labels for phone cords, computer programs or computer program documentation or packaging and copies of motion pictures or other audiovisual works), section 2319 (relating to criminal infringement of a copyright), section 2319A (relating to unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances), section 2320 (relating to trafficking in goods or services bearing counterfeit marks), section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts), sections 2341-2346 (relating to trafficking in contraband cigarettes), sections 2421-24 (relating to white slave traffic). Back to article.

²³Section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds). Back to article.

²⁴Fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical as defined in section 102 of the Controlled Substances Act punishable under any law of the United States. Except a case under section 157 of this title. Back to article.

²⁵Section 274, 8 U.S.C. & 1324, (relating to bringing in and harboring certain aliens), section 277, 8 U.S.C. & 1327, (relating to aiding or assisting certain aliens to enter the United States), or section 278, 8 U.S.C. & 1328, (relating to importation of aliens for immoral purpose). Back to article.

²⁶See 18 U.S.C. &1961(6). Back to article.

²⁷18 U.S.C. & 1961(4). Back to article.

²⁸United States v. Robertson, 514 U.S. 669, 670-671 (1995). Back to article.

²⁹Mario Puzo (October 15, 1920- July 2, 1999) Born into an Italian immigrant family, in Hell's Kitchen on Manhattan's West Side, New York. His father was a railway trackman. He lived with his six brothers and sisters above the railway yards. They were raised by his tough and illiterate Italian mother. Puzo's life has been the epitome of the Great American Dream. The child of Italian immigrants reared in the Roaring' 20s; the teen years in a tough Hell's kitchen neighborhood; military duty in World War II, going to school using the GI Bill at City College; and working as an apprentice writer cracking out pulp tales for a slew of non-familiar magazines. His first book, Dark Arena, appeared in 1955, when he was 35. His next venture was The Fortunate Pilgrim in 1964. Though both these books got good reviews, there were few takers. His second novel sold fewer than 5,000 copies and Puzo, seeking the fame and fortune he felt he deserved as a writer, set out to write a best seller. He started work on The Godfather when he was 45, with $20,000 in debt and a wife with five kids to support. Over the years it sold more than 21 million copies. Back to article.

³⁰The chief of a branch of the Mafia. Back to article.

³¹Brief for Respondent, at 4, United States v. Turkette, 452 U.S. 576 (1981) (No. 80-808). Back to article.

³²Id. at 3. Back to article.

³³Id. Back to article.

³⁴Judy Rakowsky, 10 Arrested in North Shore Drug Sweep, The Boston Globe, December 21, 1995 at 38. Back to article.

³⁵Brief for Respondent, at 3-4, Turkette, 452 U.S. 576 (No. 80-808). Back to article.

³⁶Id. at 4 Back to article.

³⁷Id. at 8. Back to article.

³⁸Id. at 9. Back to article.

³⁹Congress established the 11th Court of Appeals in 1981 subsequent to the filling of Petitioner's brief. Back to article.

⁴⁰The Eighth Circuit has declined to distinguish between legitimate and illegitimate enterprises, holding instead that, to be within RICO, the enterprise must have "an existence that can be defined apart from the commission of the predicate acts constituting the pattern of racketeering activity." United States v. Anderson, 626 F.2d 1358, 1372 (8th Cir. 1980), cert. denied, No. 80-766 (1981). Back to article.

⁴¹Id. at 6.Back to article.

⁴²Blacks Law Dictionary 422 (7th ed 2000). Back to article.

⁴³Enterprise 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. Back to article.

⁴⁴Id. at 580. Back to article.

⁴⁵Austin v. United States, 509 U.S. 602, 610 (1993). Back to article.

⁴⁶Blacks Law Dictionary 523 (4th ed. 1968). Back to article.

⁴⁷Calero-Toledo v. Pearson Yacht Leasing, 416 U.S. 663, 680-681 (1974). Back to article.

⁴⁸Austin, 509 U.S. at 611. Back to article.

⁴⁹Michelle Madden, Alexander v. United States: Can RICO's Forfeiture Provisions Survive Alexander's Challenge? 20 J. Contemp. L. 180, 187. Back to article.

⁵⁰Austin, 509 U.S. at 610-611. Back to article.

⁵¹John J. O'Donnell, RICO Forfeiture and Obscenity: Prior Restraint or Subsequent Punishment, 56 Fordham L. Rev. 1101, 1108-09 (1988). Back to article.

⁵²The Section reads: Whoever violates any provision of section 1962 of this chapter shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment), or both, and shall forfeit to the United States, irrespective of any provision of State law, (1) any interest the person has acquired or maintained in violation of section 1962; (2)(A) interest in;(B) security of; (C) claim against; or (D) property or contractual right of any kind affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962.

The court, in imposing sentence on such person shall order, in addition to any other sentence imposed pursuant to this section, that the person forfeit to the United States all property described in this subsection. In lieu of a fine otherwise authorized by this section, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds. Property subject to criminal forfeiture under this section includes: (1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities. Back to article.

⁵³Alexander v. United States, 509 U.S. 544, 563 (1993) (Kennedy, J., dissenting). Back to article.

⁵⁴Madden, supra at 187-188. Back to article.

⁵⁵Russello v. United States, 464 U.S. 16, 21 (1983). Back to article.

⁵⁶21 U.S.C.& 853(c). Back to article.

⁵⁷21 U.S.C. & 853(n)(6). Back to article.

⁵⁸21 U.S.C. & 853(e). Back to article.

⁵⁹21 U.S.C. & 853(n)(6). Back to article.

⁶⁰Sarah N. Welling, Ill Gotten Gains and Lawyers: Forfeiting Attorney's Fees Under RICO and the CCE, 12 PREVIEW U.S. SUP CT CAS. 332-333 (1989). Back to article.

⁶¹Id. at 332. Back to article.

⁶²See United States v. Monsanto, 491 U.S. 600, 606-614 (1989). Back to article.

⁶³See Caplin & Drysdale v. United States, 491 U.S. 617, 633-635 (1989). Back to article.

⁶⁴Vartan Aznavoorian, Using Racketeering Laws to Control Obscenity: Alexander v. United States and the Perversion of RICO, 36 B.C. L. Rev. 553, 555 (1995). Back to article.

⁶⁵Senator Helms was born in Monroe, North Carolina on October 18, 1921. He attended the Monroe public schools, Wingate (NC) Junior College and Wake Forest College. He holds honorary Doctor of Law degrees from Bob Jones University, Greenville, South Carolina and Grove City College, Grove City, Pennsylvania and he has received Honorary Degrees from Campbell University, Buies Creek, North Carolina, and Wingate University, Wingate, North Carolina.

He served in the U.S. Navy from 1942 through 1945. Helms is a five-term senator from North Carolina and a longtime conservative champion. As chairman of the Senate Foreign Relations Committee he was one of the most powerful men on Capitol Hill, known as a fierce foe of Communism, arms control agreements and Cuban leader Fidel Castro. Domestically he clashed with liberals over issues ranging from school busing to the National Endowment for the Arts. (He was sometimes called "Senator No" for his implacable opposition to liberal initiatives.) Helms was first elected in 1972, then again in 1978, 1984, 1990, and 1996. In August of 2001, Helms announced that he would not run for reelection in 2002. Back to article.

⁶⁶Janice Fried, The Erosion of the First Amendment: Alexander v. United States, 16 Whittier L. Rev. 331, 352 (1985). Back to article.

⁶⁷Aznavoorian, supra at 553. Back to article.

⁶⁸Brief for Respondent, at 2 Alexander v. United States, 509 U.S. 544 (1993). (No. 91-1526). Back to article.

⁶⁹Id. at 2-3. Back to article.

⁷⁰W. Doug Waymire, Alexander v. United States: When a Picture is Worth a 1000 Years, 26 U. Tol. L. Rev. 237, 257 Back to article. (1994).

⁷¹Id. at 258. Back to article.

⁷²Alexander, 509 U.S. at 562. Back to article.

⁷³L. Anita Richardson, Obscenity Erotica and the First Amendment, 4 PREVIEW U.S. SUP CT CAS. n.s. 3 (1992). Back to article.

⁷⁴Id. at 3-4. Back to article.

⁷⁵Id. at 5. Back to article.

⁷⁶Aznavoorian, supra at 571. Back to article.

⁷⁷Id. Back to article.

⁷⁸Id. at 571-572. Back to article.

⁷⁹Alexander v. United States, 509 U.S. 544, 550 (1993). Back to article.

⁸⁰Aznavoorian, supra at 573. Back to article.

⁸¹Alexander, 509 U.S. at 560. (Kennedy, J., dissenting). Back to article.

⁸²Fried, supra at 355-356. Back to article.

⁸³It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. Back to article.

⁸⁴See United States v. Sanders, 929 F.2d 1466, 1473 (CA10), cert. denied, 502 U.S. 846, 116 L. Ed. 2d 09, 112 S. Ct. 143 (1991); United States v. Ruggiero, 726 F.2d 913, 921 (CA2), cert. denied sub nom; United States v. Rabito, 469 U.S. 831, 83 L. Ed. 2d 60, 105 S. Ct. 118 (1984); United States v. Winter, 663 F.2d 1120, 1136 (CA1), cert. denied, 460 U.S. 1011, 75 L. Ed. 2d 479, 103 S. Ct. 1250 (1983). Back to article.

⁸⁵See United States v. Pryba, 900 F.2d 748, 760 (CA4), cert. denied, 498 U.S. 924, 112 L. Ed. 2d 258, 111 S. Ct. 305 (1990); United States v. Kragness, 830 F.2d 842, 860 (CA8 1987); United States v. Neapolitan, 791 F.2d 489, 494-500 (CA7), cert. denied, 479 U.S. 940, 93 L. Ed. 2d 372, 107 S. Ct. 422 (1986); United States v. Joseph, 781 F.2d 549, 554 (CA6 1986); United States v. Adams, 759 F.2d 1099, 1115-1116 (CA3), cert. denied, 474 U.S. 971, 88 L. Ed. 2d 321, 106 S. Ct. 336 (1985); United States v. Tille, 729 F.2d 615, 619 (CA9), cert. denied, 469 U.S. 845 (1984); United States v. Carter, 721 F.2d 1514, 1529-1531 (CA11), cert. denied sub nom. United States v. Morris, 469 U.S. 819, 83 L. Ed. 2d 36, 105 S. Ct. 89 (1984). Back to article.

⁸⁶Salinas v. United States, 522 U.S. 52, 61-62 (1997). Back to article.

⁸⁷Brief for Respondent, at 2, Salinas v. United States, 522 U.S. 52 (1997) (No. 96-738). Back to article.

⁸⁸Id. Back to article.

⁸⁹Id. Back to article.

⁹⁰Id. at 2-3. Back to article.

⁹¹Id. at 3. Back to article.

⁹²Id. Back to article.

⁹³Brief for Petitioner at 19, Salinas, 522 U.S. 52 (No. 96-738). Back to article.

⁹⁴Brief for Respondent at 13, Salinas, 522 U.S. 52 (No. 96-738). Back to article.

⁹⁵Id. Back to article.

⁹⁶See Salinas, 522 U.S. 52. Back to article.

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