Thursday, October 29, 2020

RICO Redux

It'd be a foolish exercise to keep repeat-reporting polling stories--although there is encouraging news out there. So, on a day when there's not much else, but on which I did link to Maria Bartiromo's promise of Russia Hoax prosecutions after the election, let's briefly return to RICO.

I'm not going to try to provide information here. I'm just offering the views of professionals. You'll need to read between the lines a bit, but the line at the bottom is simply this: RICO was dreamed up with a very specific problem in mind--Mafia type organized crime. While it does have theoretical applicability beyond that, as a practical prosecutive matter by far the better case theory to go with--if at all possible--is a much more traditional conspiracy approach. It depends on circumstances, but that's always going to be the general rule, and it's basically DoJ policy as well. Conspiracy cases are far more straightforward, and any juror can understand a conspiracy.

This, in my view, is absolutely beyond question as regards the Russia Hoax. Regarding the Biden Inc. case, we're hampered because we simply don't know the full scope of it--recall, Biden Inc. appears to have been incorporated into an already existing money laundering investigation, according to Rudy Giuliani. And that money laundering investigation would include other criminal violations that are hidden from our view at this time. Nevertheless, I'd be very surprised if any effort to do a RICO would be made.

Fitting in with that, there was a revealing lawyerly exchange on Twitter today regarding the general utility of RICO. Read it and see how actual prosecutors view RICO:



Replying to 


My experience as an attorney: It's very easy to spell "RICO."  If only I had a dollar for every time someone suggested that RICO was the cure for all ills.  It's not.

12:01 PM · Oct 29, 2020·



LOL.  It is a never-ending source of amusement. 

RICO is a screwed up statute that is hard to make jurors understand and hard to prove.  There are specific -- and very limited -- fact patterns it fits into.  Otherwise it is best avoided.


Imitations Precede the Original


Replying to 


I'm not an atty but I can spell overt act and Clinesmith.

1:36 PM · Oct 29, 2020·



That gets you a "conspiracy" charge, not a RICO charge.  VICAR -- "Violent Crime in Aid of Racketeering" -- is a much more useful statute that I used many times rather than go down the RICO road.  When I was first starting out and  suggested RICO approach to a case my supervisor said -- "Give yourself a couple years before you ever consider that again. My prediction is you'll come to the realization almost everyone does, 'Why would I ever want to put myself through that?'"

He was right.

1:47 PM · Oct 29, 2020·

I'm looking forward to a big picture conspiracy case.


  1. It will be interesting to see what develops as it relates to RICO. I will defer to your judgment for now.

    However, there have been judges, sheriffs, politicians, and other government employees convicted under RICO.

    Have no doubt the current DOJ guidelines are just as you have posted on multiple occasions.

    Whether or not RICO applies to the Biden family, we are in for very interesting times, especially if Trump wins as expected.

    1. It's not necessarily a question whether RICO "applies"--it's what's the best fit for prosecutors. Conspiracy + asset forfeiture in combination with other crimes can be extremely efficient. The benefits for prosecutors is that it's easier to manage and easier to present in court if it comes to a trial.

  2. RICO sounds zingy on internet forums where laptop commandos become instant laptop prosecutors!

  3. "The verdict reached today has resulted in dismantling the ruling council of La Cosa Nostra," the United States Attorney, Rudolph W. Giuliani, said in a statement issued by his office in Manhattan Nov. 20, 1986

    >According to the 22-count indictment, the defendants conducted the affairs of ''the commission of La Cosa Nostra'' in a racketeering pattern that included murders, loan-sharking, labor payoffs and extensive extortion in the concrete industry in New York City.

  4. We need that audio of Biden yelling "I want him dead! I want his family dead!"

  5. Back in 1980, I wrote an early law review article on the criminal use of RICO in Arkansas federal court. United States v. Anderson and Moody. It appeared in the Creighton Law Review.

    It has been years since I looked at RICO, but I think it applies in the case of the Biden Crime Family.