Scarinci: RICO 101 — Federal and Georgia State Law

RICO charges are no longer confined to mafia members. While the Racketeering Influenced and Corrupt Organizations Act (RICO) initially targeted organized crime, state and federal racketeering laws are now used to prosecute everything from financial fraud to public corruption.

The Georgia (RICO) Racketeer Influenced and Corrupt Organization Act is like other RICO laws in that it allows a series of individual criminal acts to be charged as part of a larger conspiracy. Former President Donald Trump and 18 others have been charged with conspiring to overturn the results of the 2020 election in the State of Georgia. The defendants face a range of different charges, with RICO tying them together.

History of Federal Racketeering Law

The RICO Act was enacted in 1970 as a way to combat organized crime. The statute allows prosecutors to bring down an entire organization rather than just its individual members. Charges can be brought against everyone involved in a corrupt organization, enabling law enforcement to target its leaders rather than just the “underlings” who carry out the crimes.

Ironically, former New York Mayor Rudy Giuliani, who is charged alongside Trump, brought some of the most famous federal RICO charges in hisory. As a federal prosecutor in the 1980s, Giuliani used the statute to bring down the heads of New York’s so-called “Five Families.”

Bringing RICO Charges

In order to be found guilty of violating the federal RICO statute, prosecutors must prove the following beyond a reasonable doubt: (1) that an enterprise existed; (2) that the enterprise affected interstate commerce; (3) that the defendant was associated with or employed by the enterprise; (4) that the defendant engaged in a pattern of racketeering activity; and (5) that the defendant conducted or participated in the conduct of the enterprise through that pattern of racketeering activity through the commission of at least two acts of racketeering activity.

The RICO statute broadly defines all of the above terms. For instance, an “enterprise” includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity. Similarly, “racketeering activity” includes state offenses involving murder, robbery, extortion, and several other serious offenses, punishable by imprisonment for more than one year, and more than one hundred serious federal offenses including extortion, interstate theft, narcotics violations, mail fraud, securities fraud, currency reporting violations, certain immigration offenses, and terrorism related offenses.

Under RICO, the illegal actions forming a pattern are called “predicate” offenses. Predicate offenses must be related in that they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Prosecutors must also show that they amount to or pose a threat of continued criminal activity.

Notably, prosecutors don’t have to prove that the defendant agreed with every other conspirator, knew all of the other conspirators, or had full knowledge of all the details of the conspiracy. Rather, they must only show that the defendant agreed to commit the substantive racketeering offense through agreeing to participate in two racketeering acts; that he knew the general status of the conspiracy; and that he knew the conspiracy extended beyond his individual role.

Georgia’s RICO Statute

The Georgia (RICO) Racketeer Influenced and Corrupt Organization Act (Ga. Code § 16-14-4) is modeled after the federal RICO statute. However, there are some notable distinctions. While the federal law requires proof of continuity, Georgia’s RICO Act can be used to prosecute individuals and schemes that have been active for only a short time, requiring at least two acts of racketeering activity within a four-year period in furtherance of one or more schemes having the same or similar intent.

Georgia’s statute also includes more than 40 “predicate” acts that can be used to show a pattern of racketeering activity. According to the recent indictments, the criminal actions supporting the charges against Trump and his co-defendants include making false statements, filing false documents and forgeries, impersonating officials, computer breaches, and attempts to influence witnesses.

RICO statutes can be an incredibly powerful legal tool for criminal prosecutors, but the cases are extremely complex, and convictions can be difficult to secure. Should prosecutors be successful, a criminal conviction may result in a maximum penalty of 20 years and a fine that is the greater of $25,000 or three times the amount of pecuniary gain.