A racketeering charge can land you in some serious trouble. You could have fines to pay and face significant prison time. It is a conviction that will follow you for the rest of your life and cause people to have doubts about your credibility and integrity.
If you are facing racketeering charges you need a criminal defense attorney who will fight for you and work to protect your rights. The thing you don’t want to do is try to go into court without representation or without a lawyer who is experienced and skilled in defending people charged with these types of crimes. Your future is too important to leave to chance.
Overview of Racketeering
The crime of racketeering means engaging in or perpetrating an illegal scheme. These schemes involve a structured group of individuals who are acting illegally to gain financially. Often the crime involves an illegal business that is involved in the scheme and may be employed to either obtain or hide money.
Racketeering is typically associated with the mafia and organized crime but can also include street gangs. These are structured groups, and their illegal activities often meet the definition of the crime simply because of the structured group dynamic.
The term racketeering is very broad and can include a number of crimes:
- Acts of terrorism
- Arson
- Assisting illegal entry of aliens into the U.S.
- Bank fraud
- Bankruptcy fraud
- Blackmail
- Bribery
- Bribery
- Commission of murder for hire
- Counterfeiting
- Criminal copyright infringement
- Dealing a controlled substance or chemical
- Dealing in obscene matter
- Embezzlement
- Embezzlement of union funds
- Extortion
- Financial institution fraud
- Forgery
- Fraud
- Gambling
- Human smuggling
- Human trafficking
- Insider trading
- Investment Fraud
- Kidnapping
- Mail fraud
- Money laundering
- Murder
- Obstruction of justice
- Ponzi/pyramid schemes
- Robbery
- Securities fraud
- Sexual exploitation of children
- Slavery
- Trafficking a controlled substance or chemical
- Tax Evasion
- Terrorists’ threats or acts
- Theft
- Wire fraud
- Witness tampering (or victims or informants)
The crime of racketeering can be committed against a person, the government, or a business. This crime is considered to have the potential to be harmful to the government due to crimes that are involved such as terrorism, trading of untaxed goods (i.e., tobacco or alcohol), or counterfeiting U.S. currency.
While illegal businesses are typically used to conceal racketeering crimes, sometimes legal businesses participate as well. When a legal business is involved, the crime becomes a white-collar crime.
What is RICO?
In 1970 the United States Congress passed the Racketeer Influenced and Corrupt Organizations (RICO) Act (18 USC § 1961-1968). RICO makes it a federal crime to make money from or participate in racketeering activities. This law allows for both criminal prosecutions and civil liability. This means that the person or entity guilty of the crime can face fines as well as prison, their ill-gotten gains seized by the government, and restitution made to those who were harmed financially by the crime.
Early on, the law was targeted more to address organized crime and the mafia, but over time, it has come to encompass even legitimate associations or businesses that are engaged in criminal activity.
It is used by federal prosecutors to fight white-collar crime, combat political corruption, and reduce organized crime. Under RICO all of the different crimes committed by an organization can be brought together for a single prosecution. New York, like many other states, has its own RICO laws.
What are Predicate Offenses?
A predicate Offense is a crime that is a component of a more serious crime. The larger crime may be racketeering, money laundering, financing of terrorism, etc. For example, to violate the Racketeer Influenced and Corrupt Organization Act (RICO), a person must “engage in a pattern of racketeering activity”, and in particular, must have committed at least two predicate crimes within 10 years. These include bribery, blackmail, extortion, fraud, theft, money laundering, counterfeiting, and illegal gambling.
The predicate offense is used to establish the more serious RICO crime, allowing for more severe prosecution under the RICO statute.
What is the Difference Between Extortion and Racketeering?
Racketeering and extortion may appear to be the same crime. While the two may appear very similar, they are indeed separate crimes.
Extortion – The practice of obtaining money, property, or immaterial gain (such as silence of a crime witness) by using threats, intimidation, or force. It is also sometimes called blackmail.
Racketeering – The practice of committing crimes like extortion, fraud, money laundering, loansharking, or bribery to aid or support an illegal or shady business or entity.
Extortion crimes can fall under the racketeering umbrella, but by themselves, they are usually not considered as engaging in racketeering. A person committing the crime of extortion is trying to get something they want by using violence, threats, or kidnapping. The threats can be that physical harm will come to the person being extorted, or it can be that incriminating or defaming information will be released.
The differences can be subtle, but they are there.
It should be noted though that extortion can be included in racketeering charges.
Federal Racketeering Charges
In order for a person to be charged under RICO, three criteria must be met:
- They must commit a minimum of two acts of racketeering activity, and
- One of those acts had to occur after RICO became law in 1970, and
- The last offense must have occurred within 10 years of the first act
Racketeering that occurs at the federal level can be prosecuted at both the federal and state levels.
At the federal level, the crimes under RICO for federal prosecution include economic and financial crimes, bribery, murder for hire, gambling offenses, sexual exploitation of children, obstructing justice, obstructing justice, and money laundering.
New York Racketeering Charges
New York law has its own RICO statute that functions much like the federal RICO laws. New York Penal Law Article 460 – Enterprise Corruption has two charges:
- New York Penal Law Article 460.20 – Enterprise Corruption
- A person is guilty of enterprise corruption when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise, he:
- intentionally conducts or participates in the affairs of an enterprise by participating in a pattern of criminal activity; or
- intentionally acquires or maintains any interest in or control of an enterprise by participating in a pattern of criminal activity; or
- participates in a pattern of criminal activity and knowingly invests any proceeds derived from that conduct or any proceeds derived from the investment or use of those proceeds, in an enterprise.
- For purposes of this section, a person participates in a pattern of criminal activity when, with intent to participate in or advance the affairs of the criminal enterprise, he engages in conduct constituting, or is criminally liable for pursuant to section 20.00 of this chapter, at least three of the criminal acts included in the pattern, provided that:
- Two of his acts are felonies other than conspiracy.
- Two of his acts, one of which is a felony, occurred within five years of the commencement of the criminal action; and
- Each of his acts occurred within three years of a prior act.
- For purposes of this section, the enterprise corrupted in violation of subdivision one of this section need not be the criminal enterprise by which the person is employed or with which he is associated and may be a legitimate enterprise.
- A person is guilty of enterprise corruption when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise, he:
- New York Penal Law Article 460. 22 – Aggravated Enterprise Corruption
- A person is guilty of aggravated enterprise corruption when he or she commits the crime of enterprise corruption and two or more of the acts that constitute his or her pattern of criminal activity are class B felonies or higher, and at least two acts are armed felonies as defined in paragraph (a) of subdivision forty-one of section 1.20 of the criminal procedure law or one act is such an armed felony and one act is a violation of subdivision two of section 265.17 of this chapter or one act is a class B violent felony and two are violations of subdivision two of section 265.17 of this chapter.
What Must a Prosecutor Prove?
At the federal level, prosecutors must prove to the jury that the defendant:
- Has a pattern of racketeering, and
- Has a criminal enterprise or is part of a criminal enterprise, and
- Defendant’s activity affects interstate commerce
This means that the defendant or defendants participated in ongoing illegal activity (pattern of racketeering) and that they acted as part of a group (a legal entity or a group) and as a result, interstate commerce was impacted. For instance, moving large amounts of goods, money, or people across state lines is an example of impacting interstate commerce.
Under New York law, for a person to be convicted of enterprise corruption (racketeering), it must be shown that they have done at least one of three things:
- Establish a pattern of criminal activity that the accused intentionally participated in or conducted, or
- Establish that the accused intentionally acquired control or an interest in a business, group, or enterprise via participation in a specific criminal behavior pattern, or
- Establish that the accused was a participant in a pattern of criminal activities and invested into the enterprise proceeds that they gained from those criminal activities.
To prove that the accused participated in a pattern of criminal activity, the prosecution must prove that the accused:
- Committed two felonies that were not classified as conspiracy
- Committed two criminal acts and one of those was a felony that occurred within five years of the commencement of the enterprise corruption
- Committed three separate acts of illegal participation in a criminal enterprise, all acts committed within three years of each other
Penalties for a Federal Racketeering Conviction.
Racketeer Influenced and Corrupt Organizations (RICO) law (18 USC § 1961-1968)
- Penalties for each count of racketeering
- Maximum fine $25,000
- Maximum 20 years in prison
- Asset forfeiture of any interest maintained or acquired in the commission of the crime (money, property, etc.)
If other crimes were committed as part of racketeering, the defendant could be charged with those crimes and be subject to the penalties associated with them. For instance, murder can carry a life sentence so that would be added to the racketeering charge.
Penalties for a Racketeering Conviction in New York
New York law also has strict penalties for those convicted of racketeering.
- New York Penal Law Article 460.20 – Enterprise Corruption
- Class B Non-Violent Felony
- Maximum 25 years in prison
- Asset Forfeiture
- Class B Non-Violent Felony
- New York Penal Law Article 460. 22 – Aggravated Enterprise Corruption
- Class A-1 Felony
- Minimum 15 years in prison
- Maximum Life without parole
- Asset Forfeiture
- Class A-1 Felony
As with federal charges for this crime, the sentence may be increased for each count. If other crimes were committed during the commission of the racketeering crime, the defendant may be charged and convicted of those crimes as well. This means they would also have to serve the sentences for those crimes.
Defenses for Racketeering
There are several defenses that your RICO defense attorney can use to either get an acquittal or lessen your sentence.
- No pattern of criminal activity
- Illegal search and seizure
- Duress or compulsion
- Not associated with or employed by an enterprise or business that is indirectly or directly engaged in the collection of unlawful debt or patterned racketeering activity and engaged in that activity or related activity
- Lack of knowledge of a criminal enterprise
- Insufficient evidence
- If associated with an enterprise or business and participated in the activity, it was longer than 10 years ago
- Entrapment
- No enterprise existed, including no union, legal entity, corporation, group of individuals, partnership
- Withdrawal
- No involvement in criminal organizations
- Interstate commerce was not affected
If you have been accused or charged with participation in organized crime, you need a sharp, experienced attorney by your side to help you understand your charges and identify which crimes may fall under the RICO laws. You need a federal criminal defense attorney who is experienced in racketeering laws to provide you with sound and professional advice.
You do not want to face the complex, powerful RICO laws alone. If convicted, you could lose everything.
If you’re under investigation for racketeering, don’t wait until prosecutors charge you. If you’ve been charged, don’t wait until you are standing in that courtroom all alone. Call Mr. Litvak of The Litvak Law Firm at (718) 989-2908. He will answer your questions and help you sort out your case, provide you with professional, legal advice, and help make sure your rights are protected. He will see to it that you have the best possible outcome for your case, so don’t wait, call today.