In my diary UPDATED: Mr. Christie meet Mr. RICO I put forth the idea that things might lead to the US Attorney looking at RICO violations in the developing scandals coming out of New Jersey. BTW, it is time to drop "Bridgegate" and start calling the scandals "Jerseygate" or "Christiegate" or something else.
My diary was received with a generally good response, getting me on the Rec list. I appreciate everyone who T&Red the diary. We also had a very interesting comment thread, which to my surprise got pretty heated. There was some blowback from a few lawyers, but to my surprise, not for a lack of "briefing" it in more detail. No, it was just for the idea that RICO might even be in play. This might have been in part for a lack of explaining, and documenting, concept of RICO. Thus, I want to flesh out the issue a little more.
Things in Jerseygate are moving at a very fast pace. It is almost impossible to even keep up with them. Here are some other very good diaries that discuss current developments:
There is also this, Hoboken Mayor: Christie Team Shook Us Down for Sandy Relief.
First the caveats: it is still early even if it feels like it has been forever, these are only allegations and nothing has been proven. Okay, we got that out of the way, lets get onto the topic. I will be relying on the US Attorney's Criminal Resource Manual for a great deal of this analysis.
Section 9-110.100 to the Organize Crime and Racketeering states:
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. Emphasis mineSo although the primary focus of the statute is to fight the "mob" from infiltrating legitimate businesses, it can be used "relat(ed) to any enterprise affecting interstate commerce. The authority of Congress to regulate such crimes flows from the Interstate Commerce Clause of the US Constitution. At this point we do not know the full extent of the enterprise. However, the focus is on the Governor's Office of the State of New Jersey, and the tentacles that run out from it into the Port Authority of New York and New Jersey. They now also appear to be running to very large and influential business in the states of New York and New Jersey.
So contrary to many people's belief, RICO can be, and has been, used to go after "non-mob" enterprises, and as will be discussed in more detail below, these include governmental organizations.
The Dept. of Justice guidelines state that RICO is only to be used in exceptional circumstances:
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.Clearly people of good will can have differing opinions as to the fact of whether the current situation meets the extraordinary circumstances necessary to use RICO. I believe this is an exceptional case, or more precisely could be, as the facts are more fully developed.
9-110.310Arguably all of the above might be relevant, but I will focus on the criteria that I think are the most important.
Considerations Prior to Seeking Indictment gives us the criteria for deciding whether to seek a RICO indictment. This is not to be confused with what makes up the elements of a RICO violation, but guides a USA as to whether they should go down the RICO road.
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:
1.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;
2.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;
3.A RICO charge could combine related offenses which would otherwise have to be prosecuted separately in different jurisdictions;
4.RICO is necessary for a successful prosecution of the government's case against the defendant or a codefendant;
5.Use of RICO would provide a reasonable expectation of forfeiture which is proportionate to the underlying criminal conduct;
6.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;
7.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.
3.A RICO charge could combine related offenses which would otherwise have to be prosecuted separately in different jurisdictions;At this point there appear to be so many criminal charges that you need a spreadsheet to keep track of them. They are all egregious on their own, but when you consider that they all appear to be coming from the same source, it an even bigger deal. Certainly they can all be punishable individually, but given the possibility that the multiple sentences would be served concurrently, do we really get the right level of punishment? Those who wish to engage in Pay-to-Play must be sent a message that this will no longer be allowed. It is intolerable at the local level like a city, but it is unfathomable that anyone would not agree that it cannot a state level.
The other two criteria go hand-in-hand.
6.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;Any state would have a very difficult time investigating and prosecuting what appears to be a widening web of corruption. Staffing and budgetary resources would be stretched to the absolute limit. In addition, the complex nature of the evidence and laws would require a team of investigators and prosecutors with expertise that in most cases would only be at the federal level.
7.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.
We also have government officials who are at the core of these scandals. But for New Jersey it is even more imperative that the feds are involved and that they bring each and every one of their weapons to this battle. The Attorney General is appointed by the Governor. The Attorney General's office is thus answerable directly to the Governor. The AG's office has a great deal of control over the local prosecutors' offices so the possibility of interference is extremely high. If there is no statute in New Jersey for an independent prosecutor then there is no way to ensure a thorough and independent investigation of this case.
Also, there is the issue that the Governor appoints the judiciary. It doesn't take much imagination to realize that a judge who is where they are would not be willing to give the person who put them there the benefit of the doubt, or more. The same is true of that person's close associates, friends, minions, cronies, and so on.
So, now to the kinds of crimes that can bring on a RICO charge(s). Remember, the purpose of RICO is to increase the punishment of someone who has done a series of crimes in concert with other people, i.e. an enterprise. Criminal punishment includes 20 yrs for each RICO conviction, and fines. In addition, civil forfeitures of property derived from illegal activity can occur thus depriving the individual of the benefits of their crimes. The definition of racketeering is:
As used in this chapter—18 U.S. Code § 1961 - Definitions
(1) “racketeering activity” means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891–894 (relating to extortionate credit transactions), section 1028 (relating to fraud and related activity in connection with identification documents), section 1029 (relating to fraud and related activity in connection with access devices), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to financial institution fraud), section 1351 (relating to fraud in foreign labor contracting), section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship papers), sections 1461–1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), section 1542 (relating to false statement in application and use of passport), section 1543 (relating to forgery or false use of passport), section 1544 (relating to misuse of passport), section 1546 (relating to fraud and misuse of visas, permits, and other documents), sections 1581–1592 (relating to peonage, slavery, and trafficking in persons).,  section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful welfare fund payments), section 1955 (relating to the prohibition of illegal gambling businesses), section 1956 (relating to the laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity), section 1958 (relating to use of interstate commerce facilities in the commission of murder-for-hire), section 1960 (relating to illegal money transmitters), sections 2251, 2251A, 2252, and 2260 (relating to sexual exploitation of children), sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles), sections 2314 and 2315 (relating to interstate transportation of stolen property), section 2318 (relating to trafficking in counterfeit labels for phonorecords, computer programs or computer program documentation or packaging and copies of motion pictures or other audiovisual works), section 2319 (relating to criminal infringement of a copyright), section 2319A (relating to unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances), section 2320 (relating to trafficking in goods or services bearing counterfeit marks), section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts), sections 2341–2346 (relating to trafficking in contraband cigarettes), sections 2421–24 (relating to white slave traffic), sections 175–178 (relating to biological weapons), sections 229–229F (relating to chemical weapons), section 831 (relating to nuclear materials), (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501 (c) (relating to embezzlement from union funds), (D) any offense involving fraud connected with a case under title 11 (except a case under section 157 of this title), fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), punishable under any law of the United States, (E) any act which is indictable under the Currency and Foreign Transactions Reporting Act, (F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain, or (G) any act that is indictable under any provision listed in section 2332b (g)(5)(B);
I apologize for such a large block of information in the above blockquote, but I want to avoid the possibility of select quoting. What is necessary is that two or more of the above "predicates" must be in relation to a number of state or federal crimes.
In the diary thread we had a very heated discussion of whether the actors in Jerseygate would comprise an "enterprise" under RICO. I think it is pretty obvious that it is, but I want to give an H/T to CenPhx who provided an number of cases on this subject. I hope CenPhx doesn't mind but I am going to borrow that material here:
See, e.g., United States v. Cianci, 378 F.3d 71, 79-88 (1st Cir. 2004) (an association-in- fact of the office of Mayor of Providence, Rhode Island and other city agencies); United States v. Blandford, 33 F.3d 685, 703 (6th Cir.) (Office of the Representative for House District 14 together with individuals employed therein), cert. denied, 514 U.S. 1095 (1995); United States v. McDade, 28 F.3d 283, 295-96 (3d Cir.) (Congressman McDade and his Congressional offices in Washington, D.C. and in the 10th Congressional District of Pennsylvania), cert. denied, 514 U.S. 1003 (1995); United States v. Freeman, 6 F.3d 586, 596-97 (9th Cir. 1993) (Offices of the 49th Assembly District), cert. denied, 511 U.S. 1077 (1994); United States v. Thompson, 685 F.2d 993 (6th Cir. 1982) (en banc) (applying RICO to the Tennessee Governor's Office, but questioning the wisdom of not defining the enterprise in the indictment as a “group of individuals associated in fact that made use of the office of Governor of the State of Tennessee”), cert. denied, 459 U.S. 1072 (1983); United States v. Long, 651 F.2d 239, 241 (4th Cir.) (office of Senator in the South Carolina legislature), cert. denied, 454 U.S. 896 (1981); United States v. Sisk, 476 F. Supp. 1061, 1062-63 (M.D. Tenn. 1979), aff’d, 629 F.2d 1174 (6th Cir. 1980) (Tennessee Governor’s Office), cert. denied, 449 U.S. 1084 (1981); see also United States v. Ganim, 225 F. Supp. 2d 145, 160-61 (D. Conn. 2002) (an association-in-fact of the office of Mayor of Bridgeport, Connecticut and other individuals); United States v. Gillock, 445 U.S. 360, 373 n.11 (1979) (“[o]f course, even a member of Congress would not be immune under the federal Speech or Debate Clause from prosecution for the acts which form the basis of the . . . [RICO] charges here”). But see United States v. Mandel, 415 F. Supp. 997, 1020-22 (D. Md. 1976), rev’d on other grounds, 591 F.2d 1347 (4th Cir.), aff’d on reh’g, 602 F.2dMore information can be found in A Manual for Federal Prosecutors.
653 (4th Cir. 1979) (en banc) (State of Maryland not an “enterprise” for RICO purposes), cert. denied, 445 U.S. 961 (1980). Mandel, however, has been discredited by all courts that have considered the issue, including the Fourth Circuit. See, e.g., United States v. Warner, 498 F.3d 666, 694-95 (7th Cir. 2007); United States v. Angelilli, 660 F.2d 23, 33 n.10 (2d Cir. 1981), cert. denied, 455 U.S. 945 (1982); United States v. Long, 651 F.2d 239, 241 (4th Cir.), cert. denied, 454 U.S. 896 (1981); United States v. Clark, 646 F.2d 1259, 1261-67 (8th Cir. 1981); United States v. Altomare, 625 F.2d 5, 7 n.7 (4th Cir. 1980); United States v. Baker, 617 F.2d 1060, 1061 (4th Cir. 1980); see also United States v. Powell, No. 87 CR 872-3 (N.D. Ill. February 27, 1988) (City of Chicago proper enterprise for purposes of RICO); State of New York v. O'Hara, 652 F. Supp. 1049 (W.D.N.Y. 1987) (in civil RICO suit, City of Niagara Falls proper enterprise); Commonwealth v. Cianfrani, 600 F. Supp. 1364 (E.D. Pa. 1985) (Pennsylvania Senate).
Am I predicting with 100% certainty that any of the players in this show will be charged with RICO. NO. However, I do think it is not unreasonable to consider RICO as a possibility. The more information that comes out, the more likely this possibility becomes a reality as the number of potential crimes and players grow.
And one last thing. Am I enjoying watching this thing? No and Yes. No, because it shows how corrupt money has made our political system. Yes, because I love it when those in power who think nothing will ever happen to them take the big fall. If the facts prove it out, I hope the hammer comes down on the whole group of them. An to you Justice Alito, do you still think Citizens United was a good decision? Yah, I am sure you still do.