American Criminal Law Review Volume: 41 Issue: 2 Dated: Spring 2004 Pages: 1027-1078
This article discusses elements of the offense, defenses, criminal penalties, civil penalties, and recent developments under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO).
RICO is Title IX of the Organized Crime Control Act of 1970, although it has broad application beyond the context of organized crime, because Congress mandated that RICO "be liberally construed to effectuate its remedial purposes." The U.S. Supreme Court has held that RICO may be applied to legitimate businesses and to enterprises without a profit motive. To prosecute a defendant under RICO, the government must prove that the defendant, through the commission of two or more acts that constitute a pattern of racketeering activity, directly or indirectly invested in, maintained an interest in, or participated in an enterprise, the activities of which affected interstate or foreign commerce. Courts have found that public entities and governmental agencies, as well as private entities, can constitute RICO enterprises. Also, a combination of different entities can constitute an enterprise within the meaning of RICO. In discussing defenses to RICO, the article assesses the results when one or more underlying predicate acts that supports a RICO offense is invalidated, the statute of limitations for criminal and civil RICO violations, a defendant's withdrawal from a conspiracy as a defense, preemption challenges to RICO, challenges based on the "primary jurisdiction" or "horizontal preemption" defense, and defense approaches that use a "reverse vertical preemption" theory. Constitutional challenges to RICO are also considered. Following a review of the criminal and civil penalties under RICO, an overview of recent developments in the RICO statute focuses on protests, tobacco litigation, health care fraud, divorce, and police misconduct. 350 footnotes
United States of America