RICO Defenses

A racketeering charge is defended element by element, not story against story. 18 U.S.C. § 1962 requires the government to prove a set of distinct things, and a failure on any one of them defeats the count regardless of how much other evidence the jury hears. That is a structural advantage for the defense, and it is lost when the case is argued as a general denial rather than as a series of specific challenges.

The material below sets out where those challenges are usually found. It describes the analysis rather than any particular case, and no page can substitute for an assessment of the actual discovery. If you are defending a charge under 18 U.S.C. § 1962, call Law Offices Of SRIS, P.C. at (888) 437-7747 to request a consultation.

Challenging the Enterprise

The enterprise is a separate element and it is frequently the weakest one. Where the alleged enterprise is an association in fact, the government must show a common purpose, relationships among those associated with it, and enough duration for the members to pursue that purpose. Proof that a set of people committed offenses together, or knew one another, or lived in the same area, does not establish those features.

The examination is concrete. What decided who participated in a given episode? Was there any continuing structure, or did each venture assemble and dissolve on its own terms? Did the alleged members share a purpose, or did they share only a supplier, a location, or a customer base? Where the answer is that the connections were incidental, the enterprise element fails and the count fails with it.

A second line of attack applies where the entity alleged to be the enterprise is a business the defendant owns or is employed by. The statute requires that the person charged be distinct from the enterprise, and that requirement is not satisfied by every arrangement the government describes.

Challenging the Pattern

The statute fixes the number of predicate acts and the period within which they must fall, and those figures come from the current statutory text rather than from any summary. Beyond the count, the acts must be related and must show continuity. Both requirements are contestable on the evidence the government itself intends to offer.

Relatedness fails where the alleged acts had different purposes, different participants, and different methods, and are connected only by the assertion that the same enterprise lay behind them. Continuity fails where the alleged scheme had a natural end and reached it, so that nothing threatened to continue. Each predicate act is also independently vulnerable: some rest on a single cooperating witness, some on conduct outside the alleged period, and some on evidence that will not be admitted at all. When enough of them fall away, what remains is not a pattern.

Participation and the Commerce Element

Under the most commonly charged subsection the defendant must have conducted or participated in the conduct of the affairs of the enterprise. Supplying services, goods, transport, advice, or labor to an organization is not the same as taking part in directing its affairs. That distinction protects employees, contractors, and professionals who appear in a charging document because they were useful rather than because they had any hand in running anything.

The enterprise must also affect interstate or foreign commerce. The requirement is usually satisfied without difficulty, but it is an element, and where the alleged enterprise is genuinely local and self-contained it should not be conceded without examining what the government intends to prove.

Defending the Conspiracy Count

The conspiracy provision is broader, which changes the shape of the defense rather than removing it. The government must still prove that this defendant knowingly agreed to the essential nature and scope of the plan. Presence, association, knowledge of criminal activity by others, and incidental benefit are not agreement, and jury instructions saying so are worth fighting for.

Where the evidence shows a number of separate arrangements rather than a single overarching one, the variance argument becomes available. Its value is practical as well as doctrinal: it supports severance, it limits which co-defendant statements can be used, and it constrains the conduct attributed at sentencing. Withdrawal is also available, though it requires affirmative action inconsistent with the objective of the conspiracy, communicated in a way the fact finder can accept.

Evidentiary and Structural Challenges

Much of the real work in a racketeering case is done outside the elements. Intercepted communications are challenged on the sufficiency of the application, the scope of what was captured, and the handling of what was captured. Searches of homes, businesses, and devices are challenged on particularity and on the basis offered to the issuing judge. Statements are challenged on custody, warnings, and voluntariness.

Joinder and severance matter more here than in most prosecutions, because a racketeering indictment is designed to try people together. Where a client faces allegations far less serious than those against his co-defendants, severance protects him from a verdict reached on someone else’s conduct. Statements by a co-defendant that implicate a person who cannot cross-examine the speaker raise their own problem, and the answer is usually litigated before the jury hears anything.

Cooperating witnesses supply the connective tissue in most of these cases. Their agreements, their prior inconsistent accounts, the sequence in which their story developed, and the benefits they expect are all proper subjects of disclosure and cross-examination, and obtaining that material in usable form is itself a piece of litigation.

Frequently Asked Questions

Can the racketeering count be dismissed before trial?

Sometimes. A count that fails to allege an enterprise distinct from the defendant, that does not plead a pattern, or that borrows language across subsections without pleading the elements of the one charged is open to challenge. More often the pretrial motion narrows rather than dismisses, by forcing the government to state which acts it relies on and how the enterprise is defined. That narrowing is valuable in itself, because it fixes the case the defense has to meet.

Is it a defense that I never committed any violent act?

It is relevant but not sufficient on its own, because the charge does not require that every member commit every kind of act. What matters is what this defendant did, agreed to, and could reasonably foresee. Establishing that a client had no part in and no knowledge of the violent conduct alleged against others affects the verdict, the severance analysis, and the conduct attributed at sentencing, so it is developed as a documented position rather than a denial.

What if the government has recordings?

Recordings are examined for what they actually contain rather than for what the transcript summary says. Attribution of voices, the accuracy of transcripts, translations where another language is involved, the completeness of the sessions produced, and the lawfulness of the interception are all live questions. Recordings frequently show a narrower involvement than the charging document asserts, which is why they are worked through in full rather than accepted as a whole.

How does a variance argument help me?

If the proof shows several separate agreements rather than the single conspiracy charged, the mismatch can support acquittal, and it also supports severance and limits the evidence usable against a particular defendant. In practice its most reliable value is at sentencing, where it constrains the conduct that can be attributed to a client under the relevant conduct rules. It is an argument built from the government evidence rather than from a competing account.

Do I have to testify to raise these defenses?

No. Every challenge described here is made through cross-examination, through motions, through the instructions given to the jury, and through argument about what the government evidence does and does not establish. Whether a defendant testifies is a separate decision, made late, after the evidence is in and the risks are known. It is his decision alone, taken with advice.

Does an acquittal on the predicate acts end the racketeering count?

Not automatically, because a racketeering count can rest on acts that are not separately charged, and the jury may be asked to decide the acts within the racketeering count itself. That is why instructions requiring the jury to agree on which acts were proved matter so much. It is also why the defense litigates each alleged act inside the count rather than treating the separate charges as the whole contest.

Working With Law Offices Of SRIS, P.C.

Defense work on a racketeering count is organized around the elements: what the enterprise is said to be, which acts are said to form the pattern, what this client is said to have done, and what the discovery actually supports.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

Related pages

• RICO defense lawyer
• RICO penalties and sentencing
• RICO elements of the offense
• Charged under 18 U.S.C. § 1962: what happens next
• Hobbs Act robbery defenses

This page provides general information about defenses to federal racketeering charges under 18 U.S.C. § 1962 and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

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