*Andrea Hutton
I. Introduction
In the first episode of The Sopranos, Tony Soprano laments to his therapist that “[he’s] not getting any satisfaction from [his] work.”[1] When his therapist asks why, Tony says, “[a]ll because of RICO,” clarifying that RICO is not a family member, but a statute.[2] Many Americans are familiar with the Racketeer Influenced and Corrupt Organizations Act (RICO) because of its association with the Mafia. However, states’ recent use of RICO statutes have many Americans wondering, what are these statutes and how do they connect mob bosses and former presidents?
II. Cultural and Legislative History
The Mafia grabbed the attention of America after the arrival of the first known member of the Sicilian Mafia in 1878.[3] The Mafia and other organized crime entities grew in sophistication when the passage of the Eighteenth Amendment created lucrative opportunities to provide alcohol to the public.[4] In the first half of the Twentieth Century, criminal organizations oversaw an array of activities including, “gambling, loan sharking, drug trafficking, extortion, gun running, prostitution, bootlegging, racketeering, money laundering and fraud.”[5] Public awareness of the Mafia grew after World War II, with approximately 30 million people tuning into a televised 1951 Senate committee investigation of organized crime.[6] Twenty years later, President Nixon signed RICO into law as part of the Organized Crime Control Act of 1970 with the purpose of “eradicat[ing] . . . organized crime in the United States by strengthening the legal tools in the evidence gathering process[.]”[7]
III. A Powerful Weapon
To fight the Mafia the federal government needed an arsenal as effective as the organizations it was up against. The RICO statute provides the munitions by attacking the profits of businesses engaging in racketeering activity.[8] The first weapon is the statute’s expansive definition of racketeering activity. Racketeering activity is “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 . . . chargeable under State law and punishable by imprisonment for more than one year.”[9] The statute also includes more than fifty federal offenses considered racketeering activity and “white collar crimes” like “mail fraud, . . . money laundering, and securities fraud.”[10] This definition makes it hard to name a crime that would not constitute racketeering activity.
The statute attacks businesses associated with organized crime by making it both criminally and civilly unlawful for any person to invest money derived from a pattern of racketeering into an enterprise, use a pattern of racketeering to control an enterprise, or conduct the affairs of an enterprise through a pattern of racketeering.[11] The statute also strikes at the planning stages of such endeavors with the inclusion of conspiring to violate the provisions of RICO as another unlawful act.[12]
The statute allows “unconnected acts,” often completed by different defendants, “to be woven together” to establish the pattern required to form a RICO conspiracy.[13] Conduct forms a pattern when the acts “have the same or similar purposes, results, participants, victims, or methods of commission.”[14] One limit the provision establishes is that the related acts must occur within ten years of each other.[15]
RICO imposes liability on those who are part of an enterprise and know of two or more racketeering activities committed by another member of the enterprise.[16] An enterprise encompasses “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”[17] To prove the enterprise exists, there must be an “ongoing organization, formal or informal” in which the associates of the organization “function as a continuing unit.”[18]
The intentionally broad terms and concepts in the statutes finally gave prosecutors an opportunity to point to connections that resulted in culpability for people who during previous attempts to hold them responsible could say, “Wasn’t me.”[19] Some thought this aspect of the statute granted too much power and sought to narrow its reach.[20] The courts disagreed, holding that “[t]he legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots”[21] as evidenced by Congress’s direction that “provisions of this title [should] be liberally construed to effectuate its remedial purposes.”[22]
IV. Expanding RICO
Once successful RICO cases brought previously untouchable defendants to bay, prosecutors and legislators eyed new ways to expand the statute from its initial focus on the Mafia.[23] The Supreme Court put big business on notice in Sedima, S.P.R. v. Imrex Co., Inc., ruling that “respected and legitimate enterprises” were just as capable of violating RICO as “mobsters and organized criminals” and that Congress intended the statute to be liberally construed, allowing it to reach both types of organizations.[24] Congress expanded the statute during the War on Drugs to go after target gangs and later, to pursue suspected terrorists following the attacks of September 11, 2001.[25] In 2007, the First Circuit ruled that RICO also applied to enterprises that “engaged in noneconomic criminal activity”[26] because a “de minimis effect on interstate commerce is all that is required to satisfy RICO’s commerce element.”[27] In that case, the court held that the enterprise’s purchase of guns manufactured in another state satisfied the interstate commerce element.[28]
V. In the News: The Georgia RICO Statute
Over thirty states followed the federal government’s lead enacting their own “little RICO” statutes.[29] Some state RICO statutes, like the one Georgia enacted in 1980, expand on the federal statute. Unlike the federal statute, the Georgia statute has no “enterprise” requirement—it allows for charges against an individual.[30] Georgia’s RICO statute also provides a broader array of crimes that create a pattern of racketeering activity, including: “the attempt, solicitation, coercion, and intimidation of another to commit any [state] crime which is chargeable by indictment.”[31]
In Atlanta, Fani Willis, the Fulton County District Attorney, is relying on the Georgia statute to bring a dizzying array of RICO indictments.[32] For example, in May 2022, Willis brought fifty-six counts against rappers Young Thug and Gunna along with twenty-six members of the Young Stoner Life Collective.[33] Earlier this year, she brought RICO charges against Donald Trump and eighteen others for their attempts to overturn the 2020 presidential election.[34]
VI. Conclusion
These Willis-led indictments are bringing Georgia’s RICO statute into the popular imagination—like the impact of the earlier Mafia cases under the federal RICO statute. While federal RICO cases successfully brought down Mafiosos and businessmen, state RICO cases are often broad and unwieldy, requiring prosecutors to rely on plea deals to take care of most of the defendants. The eyes of America and the world will, once again, scrutinize RICO statutes when Donald Trump’s case kicks off in October 2023, laying bare the strengths and weaknesses of the Georgia statute and its federal predecessor.
*Andrea Hutton is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Andrea received dual bachelor’s degrees from Louisiana State University in Public Relations and Fashion Merchandising. Before law school, she had a nearly 10-year career in digital marketing and business development. Since 2008, Andrea has volunteered with the Hugh O’Brian Youth Leadership Louisiana Seminar, an organization with the mission to create a global community of young volunteers dedicated to a life of leadership, service, and innovation. She served as the Leadership Seminar Chair from 2021-2023, leading a team of more than 20 volunteers to plan and execute the organization’s premiere event, a weekend-long leadership seminar for high school sophomores. In the summer of 2023, Andrea interned in the office of the County Attorney for Montgomery County. She intends to practice real estate law.
[1] The Sopranos: The Sopranos (HBO television broadcast Jan. 10, 1999).
[2] Id.
[3] Sean M. McWeeney, The Sicilian Mafia and Its Impact on the United States, FBI L. Enf’t Bull., Feb. 1987, at 1–2.
[4] John R. Mitchell, et. al., Beyond the Mob: “Varsity Blues” and DOJ’s Expanding Use of RICO to Prosecute White-Collar Crime, Crim. Just., Fall 2019, at 4.
[5] Id. at 4–5.
[6] Id. at 5.
[7] Id.
[8] Pamela H. Bucy & Steven T. Marshall, An Overview of RICO, 51 Ala. Law. 283, 284 (1990).
[9] 18 U.S.C. § 1961(1).
[10] Id.; Bucy & Marshall, supra note 8, at 284.
[11] § 1962(a)–(c).
[12] Id. § 1962(d).
[13] Mitchell, supra note 4, at 5.
[14] H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 (1989).
[15] 18 U.S.C. § 1961(5).
[16] Piper French, An Offer You Can’t Refuse: How a Mob Statute Metastasized, The Drift (July 12, 2023), https://www.thedriftmag.com/an-offer-you-cant-refuse.
[17] § 1961(4).
[18] Bucy & Marshall, supra note 8, at 285.
[19] See Julian Simcock, Recalibrating After Kiobel: Evaluating the Utility of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) in Litigating International Corporate Abuse, 15 CUNY L. Rev. 443, 450.
[20] See Rusello v. U.S., 464 U.S. 16, 17 (1983).
[21] Id. at 26.
[22] Id. at 27.
[23] See Mitchell, supra note 4, at 7–8.
[24] Sedima, S.P.R. v. Imrex Co., Inc., 473 U.S. 479, 497–99 (1985).
[25] See French, supra note 16; see also Mitchell, supra note 4, at 7–8.
[26] U.S. v. Nascimento, 491 F.3d 25, 30 (1st Cir. 2007).
[27] Id. at 37.
[28] Id.
[29] French, supra note 16.
[30] Ga. Code Ann. § 16-14-4 (West 2023).
[31] Ga. Code Ann. § 16-14-3 (West 2023).
[32] Christina Lee, What (or Who) Is Behind the Rise of RICO?, Atlanta Mag. (June 14, 2023), https://www.atlantamagazine.com/news-culture-articles/what-or-who-is-behind-the-rise-of-rico/.
[33] Zoe Guy, Everything We Know About YSL’s RICO Case, Vulture (July 22, 2023), https://www.vulture.com/article/ysl-young-thug-gunna-arrest-charges-explained.html.
[34] Richard Fausset & Danny Hakim, What We Know About the Trump Election Interference Case in Georgia, N.Y. Times (Aug. 14, 2023), https://www.nytimes.com/2023/08/14/us/trump-georgia-election-indictment-what-to-know.html?name=styln-georgia-investigation.
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