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RICO (Racketeer Influenced and Corrupt Organizations Act) - Penalties

property government forfeiture defendant

RICO authorizes severe penalties of fine and imprisonment. The maximum punishment for an individual on a single RICO charge is imprisonment for twenty years (life if any of the predicate acts charged, such as murder, would permit such a punishment), and a fine of $250,000 or twice the proceeds of the offense. In addition, RICO revived the punishment of forfeiture of property, which before 1970 had been little used in American criminal law.

RICO imposes, as a mandatory penalty, a judgment of forfeiture to the United States government not only of any proceeds or property derived from the proceeds of the crime, but also of any interest the defendant holds in the enterprise, or any property of any kind that provides a source of influence over the enterprise. The latter provisions, rooted in the statute's original purpose of preventing criminal control of legitimate business, aim not only to punish the offender, but also to deny continuing power over an enterprise to anyone who has corrupted it to criminal ends.

Such forfeitures can be extremely harsh, and even disproportionate to the offense. For example, if an executive defrauds a number of customers of one division of a giant corporation, the forfeiture would encompass all of the offender's stockholdings in the company, whether the dollar value of those holdings was large or small in proportion to the losses caused by the fraud. In one Supreme Court case, the proprietor of an adult bookstore, convicted under RICO for selling a number of obscene books, forfeited to the government his entire store, including a large volume of nonobscene material. The Court held that since all the books were now property of the government, they could be destroyed, whether or not they were obscene (Alexander v. United States, 509 U.S. 544 (1993)).

A number of procedural provisions relating to forfeiture increase the impact of the forfeiture remedy. For example, RICO permits the government to obtain a restraining order in advance of trial, freezing any of the defendant's assets that are subject to forfeiture. Thus, before a jury has evaluated the case against the defendant, he can be deprived of the use of his property, and hampered from using that property to obtain legal counsel. Moreover, a judgment of forfeiture "relates back" to the time the property was obtained. Thus, if the court eventually finds that property was obtained by means of a RICO violation, the property is declared to have been the government's from the moment the violation occurred. Consequently, it can be recovered not only from the defendant, but also from anyone else to whom it had been transferred. Even someone who received a bona fide payment for legitimate goods or services from funds held to be racketeering proceeds would lose them to the government, unless he or she had no reasonable cause to believe that the property was forfeitable. Since defense lawyers in particular are on notice that the government has brought racketeering charges, legal fees paid to them could be recovered by the government. This possibility can complicate a RICO defendant's ability to retain counsel.

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