New Jersey Federal RICO Defense Lawyer

A RICO indictment is one of the most serious charging decisions a federal prosecutor can make. The Racketeer Influenced and Corrupt Organizations Act allows the government to combine years of alleged conduct, many defendants and a wide variety of crimes into a single case built around an “enterprise.” The result can be lengthy trials, massive discovery, sweeping forfeiture and long prison sentences. If you are named in a RICO indictment or believe a RICO investigation is underway, you need a New Jersey federal RICO defense lawyer with the resources and trial experience to take on a complex case.

Keith Oliver Criminal Law represents clients charged with racketeering and related offenses in the District of New Jersey. Because the U.S. Attorney’s Office must obtain approval from the Justice Department’s Organized Crime and Gang Section before bringing any RICO charge, these cases are carefully built and heavily resourced. Your defense needs to be as well.

What Does RICO Prohibit?

Section 1962 creates four separate offenses:

• § 1962(a) – using or investing income derived from a pattern of racketeering activity to acquire an interest in, establish or operate an enterprise;
• § 1962(b) – acquiring or maintaining an interest in or control of an enterprise through a pattern of racketeering activity;
• § 1962(c) – conducting or participating in the conduct of an enterprise’s affairs through a pattern of racketeering activity (by far the most common charge); and
• § 1962(d) – conspiring to violate any of the above.

The “Enterprise”

An enterprise can be any legal entity, such as a corporation, partnership, union, police department or government office, or any “association in fact” of individuals. In Boyle v. United States (2009), the Supreme Court held that an association-in-fact enterprise needs only three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to pursue the enterprise’s purpose. No formal hierarchy, chain of command, or name is required. That flexible definition allows prosecutors to describe a loose network of people as an enterprise.

“Racketeering Activity”

RICO lists dozens of qualifying “predicate” crimes in 18 U.S.C. § 1961(1). They include state-law offenses such as murder, kidnapping, gambling, arson, robbery, bribery, extortion and drug dealing that are punishable by more than one year, and federal offenses such as mail fraud, wire fraud, bank fraud, Hobbs Act extortion, money laundering, obstruction of justice, witness tampering, trafficking in counterfeit goods, and drug trafficking. Because mail and wire fraud are predicates, nearly any fraud scheme can theoretically be charged as racketeering.

A “Pattern” of Racketeering

A pattern requires at least two acts of racketeering activity within ten years of each other (excluding periods of imprisonment). But two acts are necessary, not sufficient. Under H.J. Inc. v. Northwestern Bell (1989), the government must also prove “continuity plus relationship”: the predicate acts must be related to one another and must either extend over a substantial period of time (closed-ended continuity) or pose a threat of continued criminal activity (open-ended continuity). Isolated or sporadic crimes, or a single short-lived scheme with one victim, may not qualify.

Participation in Operation or Management

For a § 1962(c) charge, the defendant must have participated in the operation or management of the enterprise itself, under the test from Reves v. Ernst & Young (1993). Outside professionals such as accountants or lawyers who merely provide services, without directing the enterprise’s affairs, may fall outside the statute. Lower-level employees can still be liable if they are acting under the direction of upper management, but the operation-or-management test remains an important defense.

RICO Penalties and Forfeiture

A RICO conviction carries up to 20 years in prison per count, or up to life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment, such as murder or large-scale drug trafficking. The fine can be up to $250,000 or twice the gross profits or proceeds.

Forfeiture under 18 U.S.C. § 1963 is among the most aggressive in federal law. A defendant must forfeit any interest acquired or maintained in violation of § 1962, any interest in or source of influence over the enterprise, and any property constituting or derived from proceeds of the racketeering. That can include ownership of an entire business, not just the profits of the illegal activity. The government can also seek pretrial restraining orders to freeze assets, which can affect a defendant’s ability to run a business and to pay for counsel.

Sentencing in RICO Cases

RICO is sentenced under U.S.S.G. § 2E1.1, which sets the base offense level at the greater of 19 or the offense level applicable to the underlying racketeering activity. In practice, that means the court calculates the guidelines for each predicate act, whether drug trafficking, fraud, extortion or violence, and applies the most serious result, with grouping rules for multiple predicates. A RICO conviction built on murder or attempted murder predicates can therefore produce a guideline range of decades, while a fraud-based RICO may be driven by the loss table. The role of each defendant in the enterprise, leadership or minor participant, matters a great deal.

RICO in New Jersey Federal Court

Federal prosecutors in New Jersey have used RICO against a range of targets over the years, including traditional organized crime families operating in North Jersey and the waterfront, violent street gangs in cities such as Newark, Paterson, Trenton and Camden, corrupt public officials, and fraudulent enterprises such as insurance and health care fraud rings. Gang cases frequently pair RICO counts with the related Violent Crimes in Aid of Racketeering (VICAR) statute, 18 U.S.C. § 1959, which punishes violent crimes committed to gain entrance to or maintain or increase position in an enterprise and can carry mandatory life sentences for murder.

The prosecution of a RICO case typically involves long-term wiretaps, cooperating witnesses, controlled purchases, social media evidence and financial records. Discovery can include tens of thousands of recorded calls. Defending these cases requires the ability to manage enormous volumes of evidence and to identify the weaknesses in the government’s enterprise and pattern theories.

Defenses in RICO Prosecutions

• No enterprise. The government must prove an enterprise with a common purpose, relationships and longevity. A collection of individuals who sometimes committed crimes independently is not an enterprise.
• No pattern. The predicate acts may lack relatedness or continuity, may fall outside the ten-year window, or may not qualify as racketeering activity at all.
• Insufficient predicates. Each predicate act must be proven. If the underlying fraud, extortion or drug allegations fail, the RICO charge may fail with them. Supreme Court decisions narrowing mail and wire fraud, such as Ciminelli and Kelly, can knock out fraud predicates.
• No operation or management. Defendants who did not participate in directing the enterprise’s affairs may fall outside § 1962(c).
• Statute of limitations. A RICO prosecution must be brought within five years of the last predicate act or other conduct constituting the offense.
• Severance. When the evidence against co-defendants is far more serious, counsel can move to sever trials to avoid prejudicial spillover.
• Suppression of wiretap evidence. Title III wiretaps must satisfy strict necessity, minimization and authorization requirements, and violations can result in suppression.

Civil RICO Exposure

Criminal RICO is not the only risk. Under § 1964(c), any person injured in business or property by reason of a RICO violation can sue for three times the damages plus attorney’s fees. Businesses accused of fraud schemes may face civil RICO lawsuits from competitors, customers or insurers, sometimes filed in parallel with a criminal investigation. Any statement made in a civil deposition can be used by federal prosecutors, so defendants facing both must coordinate their strategy carefully and may need to invoke the Fifth Amendment in the civil case.

RICO vs. New Jersey’s State Racketeering Law

New Jersey’s racketeering statute, N.J.S.A. 2C:41-2, is modeled on federal RICO and is prosecuted by the Attorney General’s Office or county prosecutors in Superior Court. State racketeering is a first-degree or second-degree crime depending on the predicate offenses. When both federal and state authorities investigate the same group, which happens often in gang and organized crime cases, there may be opportunities to negotiate which sovereign will prosecute. The dual sovereignty doctrine allows both to prosecute the same conduct, but in practice coordination agreements and DOJ policy often limit successive prosecutions.

For related charges, see our pages on federal conspiracy, public corruption and bribery, federal drug charges, federal robbery and money laundering.

What to Do After a RICO Arrest or Takedown

RICO cases often become public through a coordinated early-morning “takedown,” when agents from the FBI, DEA, ATF, HSI or a multi-agency task force arrest many defendants at once and execute search warrants at homes and businesses. If you or a family member is arrested in a takedown, the first court appearance will usually take place the same day or the next day before a U.S. Magistrate Judge in Newark, Trenton or Camden. In cases involving violence or drugs, the government frequently moves for pretrial detention, and the detention hearing may be the most important early event in the case. Preparing for that hearing requires gathering information about the defendant’s family ties, employment, residence and proposed third-party custodians quickly.

After the arrest, do not discuss the case with anyone except your lawyer. Calls from the federal detention facilities used for District of New Jersey defendants are recorded and routinely reviewed by agents. Do not post about the case on social media or contact co-defendants or potential witnesses, which can lead to new obstruction or witness tampering charges and to the revocation of release. Family members should preserve documents that may help the defense, such as employment and financial records, but should never destroy or move anything that might be subject to a warrant or subpoena. Finally, understand that RICO cases move slowly: discovery is voluminous, the court will often designate the case as complex under the Speedy Trial Act, and trial may be a year or more away. That time is an opportunity to investigate thoroughly and to build leverage for a favorable outcome.

Related Federal Defense Guides

• Federal conspiracy
• Federal detention hearings and pretrial release
• How the federal sentencing guidelines work

Frequently Asked Questions

What does RICO stand for?

RICO stands for the Racketeer Influenced and Corrupt Organizations Act, enacted in 1970 as Title IX of the Organized Crime Control Act. It is codified at 18 U.S.C. §§ 1961–1968.

Is RICO only used against the Mafia?

No. Although RICO was designed to fight organized crime, prosecutors use it against street gangs, corrupt public officials, fraudulent businesses, labor racketeering, and white-collar enterprises. New Jersey has seen RICO cases involving all of these.

What is the difference between federal RICO and New Jersey racketeering?

New Jersey has its own racketeering statute, N.J.S.A. 2C:41-1 et seq., often called “state RICO,” which is prosecuted in Superior Court. Federal RICO is prosecuted in the U.S. District Court and carries federal sentencing, forfeiture and prison consequences.

Can I be sued under RICO as well as prosecuted?

Yes. Civil RICO under 18 U.S.C. § 1964(c) allows private parties injured in their business or property by a RICO violation to sue for treble damages and attorney’s fees, and a criminal conviction can be used to establish liability in a later civil case.

What is a RICO conspiracy?

Under 18 U.S.C. § 1962(d), it is a crime to agree that a member of the enterprise would commit at least two racketeering acts. The defendant need not personally commit or agree to commit any predicate act, and no overt act is required.

Talk to a New Jersey Federal Defense Lawyer Today

Federal cases are won or lost early, often before an indictment is ever filed. If an agent has contacted you, a search warrant has been executed, or you have received a target letter or grand jury subpoena, call Keith Oliver Criminal Law at (732) 858-6959 or contact us online for a confidential consultation. We defend clients throughout New Jersey in the U.S. District Court in Newark, Trenton and Camden, with offices in Monmouth, Mercer and Somerset Counties and Jersey City. Learn more about our federal criminal defense practice and attorney Keith G. Oliver.