NCJ Number
108920
Journal
New York University Law Review Volume: 60 Issue: 6 Dated: (December 1985) Pages: 1162-1187
Date Published
1985
Length
26 pages
Annotation
In failing to provide an opportunity to contest the postindictment restraining order against forfeitable property, the 1984 amendments to the Racketeer Influenced and Corrupt Organizations Act (RICO) are unconstitutional.
Abstract
The 1970 RICO statute provides for the forfeiture of gains from the illegal activities at issue in the case brought under RICO. The 1984 Amendments to RICO, the Comprehensive Forfeiture Act, are intended to eliminate shortcomings in implementing RICO forfeiture provisions. Among other provisions, the amendments allow the exparte entry of a postindictment restraining order without providing the defendant an opportunity to contest its entry. To comport with due process, a defendant must be afforded an evidentiary hearing on the merits of the State's case, a hearing which includes the presentation of evidence in addition to the indictment. At such a hearing, the State must prove by a preponderance of the evidence that it is likely to succeed on the merits at trial and prove the forfeitability of property listed in the indictment. The present section of RICO pertaining to postindictment restraining orders cannot be saved by judicial interpretation. Congress must amend the restraining-order provision to provide for compliance with due process requirements. This can be done without compromising the State's interest in a speedy restraint on the transfer of assets subject to forfeiture. 201 footnotes.