The main federal racketeering statute, known as RICO—the Racketeer Influenced and Corrupt Organizations Act—allows law enforcement to stitch together offenses over time and present them in a single case, instead of prosecuting crimes independently.
The law, passed in 1970, was used successfully early on to target the leaders of New York’s five organized crime families. Since then, it has been used effectively to target insider trading, market manipulation and cybercrime, even where defendants in some cases had never met each other.
In the past three years, federal prosecutors have further expanded the types of cases targeted by the statute. Authorities in Boston pursued RICO charges in a nationwide college admissions cheating scheme, securing two jury convictions and dozens of guilty pleas thus far; in Chicago, former traders at JPMorgan Chase & Co. face racketeering charges in a case accusing them of commodities spoofing; and the U.S. attorney’s office in Brooklyn secured racketeering convictions against Nxivm sex cult founder Keith Raniere and R&B superstar R. Kelly, both of whom were accused of running a criminal enterprise. Officials are also increasingly turning to RICO conspiracy laws to prosecute neighborhood street gangs.
“Federal prosecutors have become more enamored with the RICO law’s ability to expand the story,” said James Trusty, former chief of the U.S. Justice Department’s Organized Crime and Gang division in Washington, D.C. Mr. Trusty said the statute effectively broadens what is considered criminal behavior under federal law and what is admissible in court. “You’re basically creating your own permission slip to introduce evidence of criminality,” he said, as opposed to having to rely on the go-ahead from judges.
To prove a violation of RICO, prosecutors need to show that someone engaged in a pattern of racketeering activity connected to a criminal enterprise. The law requires proof that an enterprise existed and that a defendant committed at least two underlying acts within a 10-year period; these offenses can range from murder and assault to extortion and money laundering.
Prosecutors can also separately charge conspiracy to violate RICO, which is a subsection of the RICO statute and contains different elements than a racketeering charge. A person can be convicted of RICO conspiracy without personally committing an underlying act. It is sufficient for prosecutors to prove that a defendant knew his co-conspirators were involved in criminal activity and agreed to participate in it.
Michael Gerber, a former federal prosecutor who led Manhattan’s violent and organized crime unit, said that it is very helpful to prosecutors to be able to include the context and pattern of conduct when a criminal organization has engaged in multiple types of crime over time.
“Sometimes, the U.S. attorney’s office can use those statutes to prosecute a murder or shooting and seek justice for the victim, when otherwise the crime would have gone uncharged forever,” he said.
Some defense lawyers say that the expansion of RICO’s boundaries over time has also led to broad indictments that charge dozens of defendants at once, some of whom might have only been tangentially related to the central criminal activity. These cases, which can carry significant prison terms, violate due process and misuse a statute intended to prosecute traditional organized crime, said some defense lawyers.
Martín Sabelli, president of the National Association of Criminal Defense Lawyers, said that often people can be charged with tenuous connections to the racketeering activity even if they weren’t present for, or didn’t participate in, the underlying substantive crimes.
“This expansive use of a conspiracy theory hits people of color and the poor much more harshly, given the modern prosecutorial focus on gangs rather than organized crime,” he said, particularly when street-crime prosecutions are packaged into federal RICO cases.
Among the people charged in these sweeping RICO conspiracy cases is Christopher Howard, 29 years old, who is scheduled to be resentenced in January.
In October 2017, Mr. Howard was included in a RICO case filed by federal prosecutors in Manhattan against 33 alleged members and associates of rival street gangs that had divided a Bronx-based housing complex into warring territories for years. Mr. Howard was indicted on one count of racketeering conspiracy relating to the gang activity. He was also indicted on one count of VICAR, a federal statute that targets violent crimes committed in aid of racketeering, and one related firearms charge, both of which involved the shooting a rival gang member in 2014. Mr. Howard’s attorney said the incident wasn’t motivated by gang affiliation.
A jury convicted Mr. Howard in March 2019, when prosecutors used social-media posts to show he knew and communicated with other gang members. But in testimony of cooperating witnesses, many said Mr. Howard didn’t commit the racketeering acts in the indictment, including murders and drug sales.
Witnesses also testified that by 2014, when the shooting happened, tensions had subsided between the two gangs, according to court documents. Eight months later, a District Court judge set aside Mr. Howard’s VICAR and firearms conviction, ruling that the shooting was personal and not committed in furtherance of the criminal enterprise, which the law requires.
In August, less than a year after Mr. Howard’s release, a New York appeals court reinstated the guilty verdicts. He faces a mandatory minimum of 10 years and a maximum of up to life in prison at his resentencing.
John Diaz, who represented Mr. Howard, said the decision underscores the flexibility, breadth and danger of the RICO statutes.
“You personally don’t have to commit overt acts,” he said. “As long as you’re aware of what’s happening and adhere to it, the acts of others can be attributed to you.”
Manhattan U.S. Attorney Damian Williams said that the investigation that led to Mr. Howard’s indictment was initiated in response to an increase in shootings in the area.
“We will use every tool available to hold accountable those who seek to hurt and kill their neighbors,” he said. The prosecution led to more than two dozen individuals pleading guilty or being convicted by a jury on at least 30 shootings, including the murder of an innocent bystander to gang violence.
In the trials of Messrs. Raniere and Kelly, viewed by lawyers as novel applications of the RICO statute, both men were accused of leading a criminal enterprise and using their inner circles to engage in illegal activity and recruit women and girls for sex.
Attorneys for Mr. Raniere and Mr. Kelly have each called the racketeering charges against their clients, respectively, a misapplication of the law.
During his closing argument, Marc Agnifilo, a lawyer for Mr. Raniere, told jurors that Mr. Raniere and his followers didn’t have a common purpose, which the law requires to prove racketeering. He also said that the women freely chose to participate in sex acts.
Other Nxivm members were charged for their roles in the group under RICO. In Mr. Kelly’s case, the singer was the only individual who faced criminal prosecution.
Steve Greenberg, Mr. Kelly’s former attorney, said it was an abuse of the law to call Mr. Kelly’s lifestyle and career a “criminal enterprise.”
“Prosecutors basically said his life was an enterprise,” said Mr. Greenberg. “If they could have, they would have criminalized his going to the bathroom.”
Moira Penza, a former federal prosecutor in Brooklyn who handled RICO cases, said that the statutes were never intended to only be used in mafia cases.
“Criminal enterprises go beyond traditional organized crime,” she said. “Having RICO really allows a jury to see the way people like them operate and how it all fits together.”
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