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“Racketeering” and organized crime are frequently used synonymously, but the two words actually refer to completely separate concepts. “Racketeering” technically refers to a constellation of criminal offenses contained at Chapter 95 of Title 18 of the United States Code. These offenses relate to interference with interstate commerce by threat or violence, interference with organized labor, money laundering, murder-for-hire and illegal gambling.
“Organized crime”, by contrast refers to any criminal activity entered into by a criminal organization. Organized crime has historically engaged in racketeering offenses but has expanded since its inception to include narcotics offenses, prostitution and human trafficking, political corruption, frauds (including mail fraud, wire fraud, banking fraud, Medicare fraud, just to name a few). These organizations tend to have strong bonds fostered by ethnic affinity (the Italian mafia, Russian Organized Crime (ROC) and various Latin American drug cartels like the Cali Cartel or the Sinaloa Cartel).
The most successful criminal organizations have strong internal disciplinary rules designed to protect the organization and the leadership of the organization. Many times, these organizations are transnational in character and have more wealth and power than many national governments of the world. This leads to their ability to corrupt law enforcement officials at the local, state and federal level, even in the United States.
From the government’s standpoint, the most power tool at their disposal to combat organized crime is the Racketeer Influenced and Corrupt Organizations Act (RICO). The heart of RICO is 18 U.S.C. 1961 which expands the definition of “racketeering” to include just about any serious felony. RICO covers such other activities as narcotics trafficking, human trafficking and prostitution, immigrations and passport offenses, Trade Secrets and Economic Espionage Act offenses, Mail Fraud, Wire Fraud, Banking Fraud, and just about any offense imaginable. Members of a gang charged with robbing two convenience stores could be charged with RICO. In addition its criminal penalties, RICO also contains a private cause of action for individuals or companies injured by racketeering activity.
All that is required for a government to prove a RICO violation is a “pattern of racketeering activity”, meaning two acts of racketeering activity within the past ten years. There are two other aspects of RICO that are important. The first is the draconian penalties associated with RICO. The maximum penalty for a RICO violation is 20 years imprisonment or death if death is the penalty for an underlying offense. The second is the inclusion of “conspiracy”—an agreement to violate the law—in prohibited acts under RICO. Since co-conspirators are liable for all violations committed by co-conspirators during the course of and in furtherance of the conspiracy, one who joins a RICO conspiracy becomes subject to almost unlimited criminal liability.
Defending someone alleged to be a member of an organized crime syndicate, whether it be Russian Organized Crimes, one of the Mexican or Colombian narcotics trafficking cartels or a domestic criminal organization, requires the very best criminal defense attorney available, one who is not only an experienced and successful trial attorney but also understands the nature of organized crime and nuances of RICO and conspiracy law. In a world where the criminal justice system is built upon quick pleas and “cooperation”, charges involving allegations of organized crime are different.
“Cooperation” may not be possible. Often times, the defendant will have family members in another country—Mexico, Colombia, the Balkans or Russia—and cooperation could mean death for the cooperator’s loved ones. As one alleged cartel member once said, “they will kill everyone, even my dog”. The government’s promises of protection may not be sufficient, even if the government makes these offers in good faith. In major cartel cases, the U.S. government works with foreign law enforcement.
These foreign law enforcement officials may themselves be corrupt. “Plata o plomo” is a phrase commonly used in Latin America. It means “silver or lead”—the choice narcotics traffickers give to law enforcement officials. Either they can become rich working with the criminal organizations, or they can die. As the recent arrest of the former Mexican Defense Minister demonstrates, prosecutions can be compromised, and cooperators, and their families can die.
The defense counsel must understand that cooperation may not be possible. He or she must also understand that cooperation may not be necessary. Often, a defendant may be working at the behest of an organized crime group because he or she has no other alternative. This is called the defense of “Duress”. In the right case, an experienced defense counsel may be able to use the duress defense to completely eliminate the criminal charge.
A complete understanding of the law of conspiracy is another area an experienced defense counsel can use to limit or avoid criminal responsibility. What did the alleged co-conspirator know and intend? Does he or she have any criminal liability at all? Not everyone who does work for a cartel is a co-conspirator, and in the right case, an experienced defense counsel can use the law of conspiracy to the defendant’s advantage.
For more than 30 years, we have represented hundreds of individuals suspected of or charged with involvement in racketeering or organized crime. In many instances, these individuals were never charged. Others have been acquitted or received greatly reduced sentences. Although we do not identify clients by name, we have represented:
Because of the ongoing sensitivity of many of the matters in which we have been retained, we cannot discuss other matters where we have been retained. Every case is different, but every case starts with a willingness to listen to the client, to investigate all possible defenses to the matter and to properly advise the client of the best course of action. We will do everything in our power to ensure the client receives the best possible outcome.