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Primer on RICO Offenses (2021) Primer RICO Offenses (Racketeer Influenced and Corrupt Prepared by the Organizations) Office of the General Counsel DISCLAIMER The Commission’s legal staff publishes this document to assist in understanding and applying the sentencing guidelines. The information in this document should not be considered definitive or comprehensive. In addition, the information in this document does not necessarily represent the official position of the Commission on any particular issue or case, and it is not binding on the Commission, the courts, or the parties in any case. To the extent this document includes unpublished cases, practitioners should be cognizant of Fed. R. App. P. 32.1, as well as any corresponding rules in their jurisdictions. Want to learn more about relevant statutes, case law, and guidelines on a specific topic? The Commission’s legal staff offers a series of primers to assist in understanding and applying the sentencing guidelines on the following topics— Aggravating and Mitigating Role Adjustments Firearms Offenses Antitrust Offenses Immigration Offenses Categorical Approach Intellectual Property Offenses Offenses Involving Commercial Sex Acts and Loss Calculation under §2B1.1 Sexual Exploitation of Minors Relevant Conduct Computer Crimes Retroactivity Crime Victims' Rights RICO Offenses Criminal History Selected Offenses Against the Departures and Variances Person and VICAR Drug Offenses Sexual Abuse and Failure to Register Offenses Economic Crime Victims Supervised Release Fines for Organizations Learn more at https://www.ussc.gov/guidelines/primers. UNITED STATES SENTENCING COMMISSION One Columbus Circle, N.E. Suite 2-500, South Lobby Washington, DC 20002-8002 T: (202) 502-4500 F: (202) 502-4699 www.ussc.gov ║ @theusscgov This document was produced and published at U.S. taxpayer expense. Primer on RICO Offenses (2021) TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................................................................. 1 II. THE STATUTORY SCHEME ........................................................................................................................................... 1 A. 18 U.S.C. § 1962: Prohibited Activities ................................................................................................ 1 1. 18 U.S.C. § 1962(a) .......................................................................................................................... 1 2. 18 U.S.C. § 1962(b) .......................................................................................................................... 2 3. 18 U.S.C. § 1962(c)........................................................................................................................... 2 4. 18 U.S.C. § 1962(d) .......................................................................................................................... 3 B. 18 U.S.C. § 1961: Definitions ................................................................................................................... 4 1. Racketeering Activity ..................................................................................................................... 4 2. Pattern of Racketeering ................................................................................................................ 6 3. Unlawful Debt .................................................................................................................................... 6 4. Person ................................................................................................................................................... 7 5. Enterprise ........................................................................................................................................... 7 C. 18 U.S.C. § 1963: Criminal Penalties .................................................................................................... 8 D. Double Jeopardy Considerations for RICO Conspiracy and Substantive Offenses ........... 9 III. THE RICO GUIDELINE: SECTION 2E1.1 (UNLAWFUL CONDUCT RELATING TO RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS) ............................................................................................................................. 10 A. Generally ....................................................................................................................................................... 10 B. Determining the Offense Level for a RICO Offense ...................................................................... 11 1. Relevant Conduct ........................................................................................................................... 11 a. Generally ................................................................................................................................ 11 b. Burden of proof for uncharged underlying offenses ........................................... 12 2. Calculating the Offense Level for a RICO Offense ............................................................. 14 a. Single underlying offense ............................................................................................... 14 b. Multiple underlying offenses ......................................................................................... 14 i. Example 1 .................................................................................................................. 16 ii. Example 2 .................................................................................................................. 17 iii. Example 3 .................................................................................................................. 18 c. Applying cross references in offense guidelines ................................................... 19 d. Analogizing state crimes (Application Note 2) ...................................................... 19 e. “Prior sentence” rule (Application Note 4) ............................................................. 20 C. Application Considerations ................................................................................................................... 21 1. RICO Count and Other Counts of Conviction ...................................................................... 21 2. Acceptance of Responsibility (§3E1.1) ................................................................................. 21 3. RICO Conviction as a Predicate Offense for the Career Offender Guideline (§4B1.1) and 18 U.S.C. § 924(c) ............................................................................................... 21 4. Ex Post Facto Issues and the “One Book” Rule ................................................................... 22 i Primer on RICO Offenses (2021) I. INTRODUCTION This primer provides a general overview of the statutes, sentencing guidelines, and case law regarding the Racketeer Influenced and Corrupt Organizations Act,1 commonly referred to as the “RICO Act” or simply “RICO.” This primer focuses primarily on application of the RICO guideline and related sentencing issues. Although the primer identifies some of the key cases and concepts, it is not a comprehensive compilation of authority nor intended as a substitute for independent research and analysis of primary sources. II. THE STATUTORY SCHEME The RICO Act, 18 U.S.C. §§ 1961–68, provides for criminal prosecution of racketeering activities as part of an ongoing criminal organization. As noted in its legislative history, RICO is designed to address the infiltration of legitimate enterprises by organized crime and other illegal ventures.2 Some examples provided in the legislative history include the infiltration of legitimate businesses, such as laundry services, retail stores, restaurants and nightclubs, or labor unions, to commit gambling, money laundering, loan sharking, or extortion.3 Leaders of criminal organizations can be held liable under RICO for crimes they order others to commit, or assist in committing, in furtherance of the ongoing criminal organization. As discussed below, section 1962 sets forth three substantive offenses and makes it a crime to conspire to commit any of the three, section 1961 defines terms used in the RICO statute, and section 1963 establishes criminal penalties, including imprisonment, fines, and criminal forfeiture.4 A. 18 U.S.C. § 1962: PROHIBITED ACTIVITIES Section 1962(a), (b), and (c) set forth the substantive prohibited activities. Section 1962(d) makes it unlawful to conspire to commit any such prohibited activities. Each of the prohibited activities requires, as a necessary element, proof of a “pattern of racketeering activity” or “collection of an unlawful debt.”5 1. 18 U.S.C. § 1962(a) Under section 1962(a), it is a crime to “use or invest” any income derived from a “pattern of racketeering activity” or through “collection of an unlawful debt” to establish, 1 Organized Crime Control Act of 1970, Pub. L. No. 91–452, § 901(a), 84 Stat. 922, 941–48 (codified as amended at 18 U.S.C. §§ 1961–68). 2 See S. REP. NO. 91–617, at 76–77 (1969). 3 Id. 4 The RICO Act also provides for civil remedies against persons who engage in racketeering activities and sets forth other procedural requirements. 18 U.S.C. §§ 1964–68. 5 Id. § 1962. 1 Primer on RICO Offenses (2021) acquire an interest in, or operate “any enterprise” engaged in or affecting interstate commerce.6 To establish an offense under section 1962(a), the government
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