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Individual Liability for Conduct by Criminal Organizations in the United States Peter J

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Individual Liability for Conduct by Criminal Organizations in the United States Peter J Wayne State University Law Faculty Research Publications Law School 1-1-1998 Individual Liability for Conduct by Criminal Organizations in the United States Peter J. Henning Wayne State University, [email protected] Recommended Citation Peter J. Henning, Individual Liability for Conduct by Criminal Organizations in the United States, 44 Wayne L. Rev. 1305 (1998). Available at: http://digitalcommons.wayne.edu/lawfrp/101 This Article is brought to you for free and open access by the Law School at DigitalCommons@WayneState. It has been accepted for inclusion in Law Faculty Research Publications by an authorized administrator of DigitalCommons@WayneState. INDIVIDUAL LIABILITY FOR CONDUCT BY CRIMINAL ORGANIZATIONS IN THE UNITED STATES XVI International Congress of Penal Law Report Submitted by the American National Section, AIDP Topic L"General Part PETERJ. HENNINGt Table of Contents I. INTRODUCTION ................................. 1306 HI. INDIVIDUAL LIABILITY FOR THE CONDUCT OF OTHERS ..................................... 1307 HI.EXPANDING INDIVn)UAL LIABILITY: THE SCOPE OF AMERIcAN CONSPIRACY LAW .................... 1315 A. Proofof the ConspiratorialAgreement ............. 1317 B. The Pinkerton Doctrineof ConspiratorLiability ..... 1320 IV. LIMTING THE REACH OF CRIMINAL ORGANIZATIONS BY CURTAILING THER USE OF LEGIMATE BUSINESSES TO DISPOSE OF ILL-GOTTEN GAINS ................... 1324 A. RICO ..................................... 1325 B. Money Laundering ............................ 1329 V. CRIMINAL AND CIVIL SANCTIONS .................. 1334 A. Sentencesfor CriminalOrganizations and Participants ................................ 1334 B. The Growing Use ofAsset Forfeitureas a Weapon to Attack Organized Crime ...................... 1336 C. Injunctive Relief to Stop Street Gangs: The Next tAssociate Professor of Law, Wayne State University Law School. B.A., 1978, Loyola Marymount University; M.A., 1980, Fordham University; J.D., 1985, Georgetown University Law Center. Former Trial Attorney, Criminal Division, United States Department of Justice, Washington, D.C. I would like to thank Professors E. M. Wise and E. A. Kades for their helpful assistance. 1305 1306 THE WAYNE LAW REVIEW [Vol. 44:1305 Wave? .................................... 1345 VI. CONCLUSION ................................. 1349 I. INTRODUCTION Criminal organizations come in a variety of forms, from loose confederations of street thugs with fluid membership and territorial claims, to hierarchical entities employing elaborate initiation rites and regular procedures that operate like legitimate businesses. Assessing the criminality of the individual member of the criminal group becomes more problematic as the entity takes on greater complexity. Whereas most members of a street gang participate in a number of illegal acts, a tightly organized criminal enterprise shields its leadership from direct participation in the illegal acts. Prosecutors face the challenge of proving that the leaders of the organization are as liable as their lower-ranking confederates. With criminal organizations undertaking more sophisticated activity that often involves international movement of goods and proceeds, the criminal law of the United States has extended the power of prosecutors to reach not just the leadership of criminal organizations, but also their assistants operating in legitimate enterprises and to seize the profits from illegal transactions. This Report is divided into four parts. Part I reviews the basic criminal liability rules for holding one person liable for the conduct of another and constitutional problems with imposing criminal liability based solely on one's membership in an organization, even one devoted to criminal goals, absent evidence that the member actively sought to promote illegal activity. Part II considers the broad application of the law of conspiracy in the United States, including the related topics of substantive liability for the conduct of a co-conspirator and the expansive avenues available to prove the existence of a conspiracy. Part 1I discusses special criminal statutes that target criminal organizations by expanding liability to include ostensibly legal conduct that can be used to attribute criminal liability to the members and their adjuncts operating in otherwise legitimate businesses. Part IV reviews the enhanced penalties 1998] INDIVIDUAL LIABILITY 1307 available to punish those who participate in criminal organizations and special procedures to deprive the organizations of the fruits of their illegal activity through broad asset forfeiture provisions. II. INDIVIDUAL LIABILITY FOR THE CONDUCT OF OTHERS The common law distinguished a participant's role in an offense by dividing the parties to a felony into four categories: (1)principal in the first degree; (2) principal in the second degree; (3) accessory before the fact; and (4) accessory after the fact.1 The federal government and virtually all of the states have abandoned the common law distinction between parties to a crime and impose liability on all participants equally.' While the accomplice's liability derives from the primary actor's liability, there is no distinction between the two for purposes of punishment? The broad principle of accomplice liability holds a person liable for the acts of another if the person "(a) gave assistance or encouragement or failed to perform a legal duty to prevent [the crime] (b) with the intent thereby to promote or facilitate commission of the crime."4 One commentator points out that "the premise that a person may be held criminally responsible for the conduct of another should prove surprising, if not also disturbing." 5 1. SeeJOSHuA DRESSLER, UNDERSTANDING CRIMINAL LAW S 30.03 (2d ed. 1995). 2. See, e.g., 18 U.S.C. § 2(a) (1994) ("Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."); DRESSLER, supra note 1, S 30.03 [A] [1] ("Today, however, virtually every state has repealed most or all of the common law distinctions."). The common law categories remain important in some jurisdictions that limit conviction of those who did not commit the crime if the person who did commit it cannot be prosecuted or is found not guilty. See WAYNE R. LAFAVE & AUSTIN W. ScoTr, JR., CRIMINAL LAW S 6.6 (2d ed. 1986). 3. See Grace E. Mueller, The Mens Rea ofAccomplice Liability, 61 S. CAL. L. REV. 2169, 2172 (1988) (stating that "all jurisdictions punish an accomplice the same as the perpetrator of the substantive offense"). 4. LAFAVE & SCOTr, supra note 2, § 6.7. 5. DRESSLER, supra note 1, § 30.02[B]. 1308 THE WAYNE LAW REVIEW [Vol. 44:1305 Yet, the liability of one person for the acts of another goes unquestioned, and it is firmly entrenched in American law.6 The terms describing the act necessary to trigger liability as an accomplice are so broad that they provide no guidance in determining the defendant's potential liability. One who "aids," "abets," "advises," "commands," "counsels," "encourages," "induces," "procures," or "hires" can be liable for the particular crime committed if that person acted with the requisite intent.7 The mens rea element requires the prosecution to prove that the defendant intended to assist or encourage the commission of the crime.' The accomplice's liability does not depend on the degree of participation in the crime, only that the person provide some assistance. Mere presence without more is not sufficient to establish the accomplice's guilt.9 While the accomplice need not physically participate in the illegal act, nor be present when it takes place, he must have some relationship to the underlying criminal purpose.0 Therefore, those who furnish goods or services that facilitate the commission of the crime but otherwise do not intend to participate in the violation may escape conviction because they do not have the requisite mens rea. In United States v. Peoni,n the court stated that accomplice liability requires that the person in some fashion "associate himself with the venture, that he participate in it as something that he 6. See, e.g., United States v. Gooding, 25 U.S. (12 Wheat.) 460, 469 (1827) (attributing to the vessel owner the acts of the sailors and captain in determining criminal liability). 7. See 18 U.S.C. § 2(a). 8. See MuELLER, supra note 3, at 2175 n.28 (stating that an accomplice's intent must "be directed toward conduct which the accomplice knows to be criminal," a "proposition so basic that courts generally fail to mention it"). 9. See Hicks v. United States, 150 U.S. 442, 450 (1893) (overturning conviction of accomplice when jury instruction permitted jury to convict defendant if it found only that the defendant was present for the purpose of aiding and abetting the murder, even though he did not in fact provide any assistance). 10. See DRESSLER, supra note 1, § 30.01. 11. 100 F.2d 401 (2d Cir. 1938). 1998] INDIVIDUAL LIABILITY 1309 wishes to bring about, that he seek by his action to make it succeed. All the words used-even the most colorless, 'abet'-carry an implication of purposive attitude towards it."12 However, a supplier is not entirely free from criminal liability, because knowledge of the purchaser's intent to engage in clearly illegal activity can suffice to hold the seller liable as an accomplice. 3 In addition to imputing liability for those crimes the person intended to assist, the accomplice may be held liable for any criminal acts that are a "natural and probable consequence" of the
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