9-110.000
ORGANIZED
CRIME
AND RACKETEERING
9-110.010 Introduction
9-110.100 Racketeer Influenced
and
Corrupt Organizations (RICO)
9-110.101 Division
Approval
9-110.200 RICO Guidelines
Preface
9-110.210 Authorization of RICO
Prosecution -- The Review Process
9-110.300 RICO Guidelines
Policy
9-110.310 Considerations Prior
to
Seeking Indictment
9-110.320 Approval of Organized
Crime and Racketeering Section Necessary
9-110.330 Charging RICO Counts
9-110.400 RICO Prosecution
(Pros)
Memorandum Format
9-110.600 Syndicated
Gambling
9-110.700 Loansharking
9-110.800 Violent Crimes in Aid
of
Racketeering Activity (18 U.S.C. § 1959)
9-110.801 Violent Crimes in Aid
of
Racketeering (18 U.S.C. § 1959) -- Division Approval
9-110.802 Violent Crimes in Aid
of
Racketeering (18 U.S.C. § 1959) -- Approval Guidelines
9-110.811 The Review Process
for
Authorization under Section 1959
9-110.812 Specific Guidelines
for
Section 1959 Prosecutions
9-110.815 Prosecution
Memorandum --
Section 1959
9-110.816 Post-Indictment
Duties --
Section 1959
9-110.900 The Gambling Ship Act
--
18 U.S.C. §§ 1081 et seq.
This chapter focuses on investigations and prosecutions
involving RICO, (18 U.S.C. §§ 1961-1968), illegal
gambling (18 U.S.C. §§ 1511 and 1955), loansharking (18
U.S.C. §§ 891-896), violent crimes in aid of racketeering
(18 U.S.C. § 1959), and gambling ships (18 U.S.C. §§
1081-1083). The Organized Crime and Racketeering Section of the
Criminal Division supervises prosecutions of each of these
statutes. For an additional discussion of RICO, see
"Racketeer Influenced and Corrupt Organizations (RICO): A Manual
for Federal Prosecutors," available from OCRS.
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.
Section 1961(10) of Title 18 provides that the Attorney
General may
designate any department or agency to conduct investigations
authorized by the
RICO statute and such department or agency may use the
investigative provisions
of the statute or the investigative power of such department or
agency otherwise
conferred by law. Absent a specific designation by the Attorney
General,
jurisdiction to conduct investigations for violations of 18 U.S.C.
§ 1962
lies with the agency having jurisdiction over the violations
constituting the
pattern of racketeering activity listed in 18 U.S.C. § 1961.
No RICO criminal indictment or information or civil
complaint shall be
filed, and no civil investigative demand shall be issued, without
the prior
approval of the Criminal Division. See RICO Guidelines at
USAM 9-110.200.
The decision to institute a federal criminal prosecution
involves
balancing society's interest in effective law enforcement against
the
consequences for the accused. Utilization of the RICO statute,
more so than most
other federal criminal sanctions, requires particularly careful and
reasoned
application, because, among other things, RICO incorporates certain
state crimes.
One purpose of these guidelines is to reemphasize the principle
that the primary
responsibility for enforcing state laws rests with the state
concerned. Despite
the broad statutory language of RICO and the legislative intent
that the statute
". . . shall be liberally construed to effectuate its remedial
purpose," it is
the policy of the Criminal Division that RICO be selectively and
uniformly used.
It is the purpose of these guidelines to make it clear that not
every proposed
RICO charge that meets the technical requirements of a RICO
violation will be
approved. Further, the Criminal Division will not appro
ve "imaginative" prosecutions under RICO which are far afield from
the
congressional purpose of the RICO statute. A RICO count which
merely duplicates
the elements of proof of traditional Hobbs Act, Travel Act, mail
fraud, wire
fraud, gambling or controlled substances cases, will not be
approved unless it
serves some special RICO purpose. Only in exceptional
circumstances will
approval be granted when RICO is sought merely to serve some
evidentiary purpose.
These guidelines provide only internal Department of
Justice guidance.
They are not intended to, do not, and may not be relied upon to
create any
rights, substantive or procedural, enforceable at law by any party
in any matter
civil or criminal. Nor are any limitations hereby placed on
otherwise lawful
litigative prerogatives of the Department of Justice.
The review and approval function for all RICO matters has
been
centralized within the Organized Crime and Racketeering Section of
the Criminal
Division. To commence the review process, the final draft
of the proposed
indictment or information and a RICO prosecution memorandum shall
be forwarded
to the Organized Crime and Racketeering Section. Separate approval
is required
for superseding indictments or indictments based upon a previously
approved
information. Attorneys are encouraged to seek guidance from the
Organized Crime
and Racketeering Section by telephone prior to the time an
investigation is
undertaken and well before a final indictment and prosecution
memorandum are
submitted for review. Guidance on preparing the RICO prosecution
memorandum is
in the Criminal Resource Manual at 2071
et seq.
RICO reviews are handled on a first-in-first-out basis.
Accordingly,
the submitting attorney must allocate sufficient lead time to
permit review,
revision, conferences, and the scheduling of the grand jury.
Unless there is
a backlog, 15 working days is usually sufficient. The review
process will
not be dispensed with because a grand jury, which is about to
expire, has been
scheduled to meet to return a RICO indictment. Therefore,
submitting attorneys
are cautioned to budget their time and to await receipt of approval
before
scheduling the presentation of the indictment to a grand jury.
If modifications in the indictment are required, they must
be made by
the submitting attorney before the indictment is returned by the
grand jury.
Once the modifications have been made and the indictment has been
returned, a
copy of the indictment filed with the clerk of the court shall be
forwarded to
Organized Crime and Racketeering Section. If, however, it is
determined that the
RICO count is inappropriate, the submitting attorney will be
advised of the
Section's disapproval of the proposed indictment. The submitting
attorney may
wish to redraft the indictment based upon the Section's review and
submit a
revised indictment and/or prosecution memorandum at a later date.
It is the purpose of these guidelines to centralize the
RICO review and
policy implementation functions in the section of the Criminal
Division having
supervisory responsibility for this statute.
Except as hereafter provided, a government attorney should
seek
approval for a RICO charge only if one or more of the following
requirements is
present:
- RICO is necessary to ensure that the indictment adequately
reflects the
nature and extent of the criminal conduct involved in a way that
prosecution only
on the underlying charges would not;
- A RICO prosecution would provide the basis for an appropriate
sentence under
all the circumstances of the case in a way that prosecution only on
the
underlying charges would not;
- A RICO charge could combine related offenses which would
otherwise have to
be prosecuted separately in different jurisdictions;
- RICO is necessary for a successful prosecution of the
government's case
against the defendant or a codefendant;
- Use of RICO would provide a reasonable expectation of
forfeiture which is
proportionate to the underlying criminal conduct;
- The case consists of violations of State law, but local law
enforcement
officials are unlikely or unable to successfully prosecute the
case, in which the
federal government has a significant interest;
- The case consists of violations of State law, but involves
prosecution of
significant or government individuals, which may pose special
problems for the
local prosecutor.
The last two requirements reflect the principle that the
prosecution
of state crimes is primarily the responsibility of state
authorities. RICO
should be used to prosecute what are essentially violations of
state law only if
there is a compelling reason to do so. See also the Criminal Resource Manual at 2070.
A RICO prosecution memorandum and draft indictment, felony
information,
civil complaint, or civil investigative demand shall be forwarded
to the
Organized Crime and Racketeering Section, Criminal Division, 1001
G Street, N.W.,
Suite 300, Washington, D.C. 20038, at least 15 working days
prior to the
anticipated date of the proposed filing or the seeking of an
indictment from the
grand jury.
No criminal or civil prosecution or civil investigative
demand shall
be commenced or issued under the RICO statute without the prior
approval of the
Organized Crime and Racketeering Section, Criminal Division. Prior
authorization
from the Criminal Division to conduct a grand jury investigation
based upon
possible violations of 18 U.S.C. § 1962 is not required.
A RICO prosecution memorandum and draft pleading or civil
investigative
demand shall be forwarded to the Organized Crime and Racketeering
Section. It
is essential to the careful review which these factually and
legally complex
cases require that the attorney handling the case in the field not
wait to submit
the case until the grand jury or the statute of limitations is
about to expire.
Authorizations based on oral presentations will not be given.
See the Criminal Resource Manual at 2071 et seq.
for specific
guidance.
These guidelines do not limit the authority of the Federal
Bureau of
Investigation to conduct investigations of suspected violations of
RICO. The
authority to conduct such investigations is governed by the FBI
Guidelines on the
Investigation of General Crimes. However, the factors identified
here are the
criteria by which the Department of Justice will determine whether
to approve the
proposed RICO. The fact that an investigation was authorized, or
that
substantial resources were committed to it, will not influence the
Department in
determining whether an indictment under the RICO statute is
appropriate.
Use of RICO in a prosecution, like every other federal
criminal
statute, is also governed by the Principles of Federal Prosecution.
See
USAM 9-27.000, et
seq.
Inclusion of a RICO count in an indictment solely or even primarily
to create a
bargaining tool for later plea negotiations on lesser counts is not
appropriate
and would violate the Principles of Federal Prosecution.
A RICO charge where the predicate acts consist only of
state offenses
will not be approved except in the following circumstances:
- Local law enforcement officials are unlikely to
investigate and
prosecute otherwise meritorious cases in which the Federal
government has
significant interest;
- Significant organized crime involvement exists; or
- The prosecution of significant political or governmental
individuals may pose
special problems for local prosecutors.
A well written, carefully organized prosecution memorandum
is the
greatest guarantee that a RICO prosecution will be authorized
quickly and
efficiently. See the Criminal
Resource Manual at
2071 et seq. for specific guidlines on drafting the RICO
prosecution
memorandum.
Once a RICO indictment has been approved by the Organized
Crime and
Racketeering Section and has been returned by the grand jury, a
copy of a
file-stamped copy of the indictment shall be provided to the
Section. The
Section shall also be notified in writing of any significant
rulings which affect
the RICO statute--for example, any ruling which results in a
dismissal of a RICO
count, or any ruling affecting or severing any aspect of the
forfeiture
provisions under RICO. In addition, copies of RICO motions, jury
instructions
and briefs filed by the United States Attorney's Office (USAO), as
well as the
defense, should be forwarded to the Organized Crime and
Racketeering Section for
retention in a central reference file. The government's briefs and
motions will
provide assistance to other USAOs handling similar RICO matters.
Once a verdict has been obtained, the USAO shall forward
the following
information to the Section for retention:
- the verdict on each count of the indictment;
- a copy of the judgment of forfeiture;
- estimated value of the forfeiture; and
- judgment and sentence(s) received by each RICO
defendant.
See the Criminal Resource
Manual at
2085.
Useful information on the prosecution of loansharking is
available in
the Criminal Resource Manual at 2086
through 2088.
Section 1959 makes it a crime to commit any of a list of
violent crimes
in return for pecuniary compensation from an enterprise engaged in
racketeering
activity, or for the purpose of joining, remaining with, or
advancing in such an
enterprise. The listed violent crimes are murder, kidnapping,
maiming, assault
with a dangerous weapon, assault resulting in serious bodily
injury, and
threatening to commit a "crime of violence," as defined in 18
U.S.C. § 16.
The listed crimes may be violations of State or Federal law. In
addition,
attempts and conspiracies to commit the listed crimes are covered.
The maximum
penalty varies with the particular violent crime involved, ranging
from a fine
and/or three years imprisonment up to a fine and/or life
imprisonment, except for
any murder occurring on or after September 13, 1994, which are
subject to the
death penalty.
For any murder occurring on or after September 13, 1994,
the prosecutor
must comply with the Department's death penalty protocol
(see USAM 9-10.000).
See approval guidelines at USAM
9-110.811 through 816.
No criminal prosecution under Section 1959 shall be
initiated by
indictment or information without the prior approval of the
Organized Crime and
Racketeering Section (OCRS). All requests for approval must be
submitted at
least 15 days in advance and accompanied by a prosecution
memorandum and final
proposed indictment.
See approval guidelines at USAM
9-110.811 through 816.
Because Section 1959 reaches conduct within state and
local
jurisdictions, there is, absent compelling circumstances, a need to
avoid
encroaching on state and local law enforcement authority.
Moreover, Section 1959
complements the RICO statute, 18 U.S.C. §§ 1961-1968, and
incorporates
RICO concepts and terms, namely "enterprise" and "racketeering
activity," and
there is a need to maintain consistent applications and
interpretations of the
elements of RICO. All proposed prosecutions under Section 1959
therefore must
be submitted to the Organized Crime and Racketeering Section
Criminal Division,
for approval in accordance with the following guidelines.
The review process for authorization of prosecutions under
Section 1959
is similar to that for RICO prosecutions under 18 U.S.C. §§
1961 to 1968.
See USAM 9-110.200,
et
seq. To commence the formal review process, submit a final
draft of the
proposed indictment and a prosecution memorandum to the Organized
Crime and
Racketeering Section. Before the formal review process begins,
prosecuting
attorneys are encouraged to consult by telephone the Organized
Crime and
Racketeering Section in order to obtain preliminary guidance and
suggestions.
The review process can be time-consuming because of the
likelihood that
modifications will be made to the indictment and because of the
heavy workload
of the reviewing attorneys. Therefore, unless extraordinary
circumstances
justify a shorter time frame, a period of 15 working days must
be allowed for
the review process.
- In deciding whether to approve a prosecution under
Section 1959,
the Organized Crime and Racketeering Section will analyze the
prosecution
memorandum and proposed indictment to determine whether there is a
legitimate
reason the offense cannot or should not be prosecuted by state or
local
authorities. For example, federal prosecution may be appropriate
where local
authorities do not have the resources to prosecute, where local
authorities are
reasonably believed to be corrupt, where local authorities have
requested federal
participation, or where the offense is closely related to a federal
investigation
or prosecution. A prosecution will not be authorized over the
objection of local
authorities in the absence of a compelling reason. Accordingly,
every
prosecution memorandum must state the views of local authorities
with respect to
the proposed prosecution, or the reasons for not soliciting them.
In addition,
the specific factors set forth in the following sections will
be considered with respect to all proposed prosecutions.
- Section 1959 was enacted to combat "contract murders and other
violent
crimes by organized crime figures." See S.Rep. No. 225,
98th Cong., 1st
Sess. 304-307, 306 (1983), reprinted in 1984 U.S. Code &
Admin. News
(U.S.C.A.N.) 3182, 3483-3487. The statutory language is extremely
broad, in that
it covers such conduct as a threat to commit an assault, and other
relatively
minor conduct normally prosecuted by local authorities. Thus,
although the
involvement of traditional organized crime will not be a
requirement for approval
of proposed prosecutions, a prosecution will not be authorized
unless the violent
crimes involved are substantial because of the seriousness of
injuries, the
number of incidents, or other aggravating factors.
- The statutory definition of "enterprise" also is very broad;
it is closely
related to the definition of the same term in the RICO statute, 18
U.S.C. §
1961(4). (It should be noted that the definition in section 1959,
unlike the
RICO definition, includes a requirement of an effect on interstate
commerce as
part of the definition, and does not include an "individual" within
the
definition.) No prosecution under section 1959 will be approved
unless the
enterprise has an identifiable structure and purpose apart from the
racketeering
activity and crimes of violence it is engaged in, and otherwise
meets the
standards for a RICO prosecution.
- The term "racketeering activity" is borrowed directly from the
RICO statute,
18 U.S.C. Sec. 1961(1). It will be construed in the same way under
Section 1959
as it is under RICO, for purposes of approval. See USAM 9-110.100, et
seq.
Every request for approval of a proposed prosecution under
section 1959
must be accompanied by a final draft of a proposed indictment and
by a thorough
prosecution memorandum. The prosecution memorandum should
generally conform to
the standards outlined for RICO prosecutions. See USAM 9-110.400. The memorandum
must contain a
concise summary of the facts and a statement of the evidentiary
basis for each
count, a statement of the applicable law, a discussion of
anticipated defenses
and unusual legal issues (federal, and where applicable, state),
and a statement
of justification for using section 1959. It is especially
important that the
memorandum include a discussion of the nexus between the enterprise
and the crime
of violence, the defendant's relationship to the enterprise, and
the evidentiary
basis for each section 1959 count. Submission of a thorough
memorandum is
particularly important, because of the complexity of the issues inv
olved and because of the statute's similarity to RICO.
Once the indictment or information has been approved and
filed, it is
the duty of the prosecuting attorney to submit to the Organized
Crime and
Racketeering Section a copy bearing the seal of the clerk of the
court. In
addition, the attorney should keep the Organized Crime and
Racketeering Section
informed of any unusual legal problems that arise in the course of
the case, so
those problems can be considered in providing guidance to other
prosecutors.
See the Criminal Resource
Manual at
2089.
| August 1999
| USAM Chapter 9-110
|