Mother of Mercy! What the Hell Is RICO?

The Racketeer Influenced and Corrupt Organizations Act, otherwise known as RICO. It's famous as the law used to take down organized crime, with then-U.S. Attorney Rudy Giuliani bringing the Mafia Commission Trial in the 1980s after indicting nine high-level organized crime figures, including the heads of New York's "Five Families."

But that's not the only time it comes up in court. It's been used in criminal court to go after motorcycle clubs, wealthy investors, the Key West Police Department in Florida, R&B singer R. Kelly and even President Donald Trump, but also in civil cases, like against Big Tobacco and sex abuse claims against the Catholic Church. 

RICO is the subject of our second episode this season: What it is, what it isn't and why it's used so much in one particular state.

Special guests:

• George Anastasia, former Philadelphia Inquirer crime reporter
• Jeff Grell, an attorney and lecturer at the University of Minnesota Law School
• Eric Seidel, former deputy attorney general in charge of New York’s Organized Crime Task Force
• Joe Lancaster, an assistant editor at Reason

This episode was produced by Kirk McDaniel. Intro music by The Dead Pens.

Editorial staff is Ryan Abbott, Sean Duffy and Jamie Ross.

Transcript

(Intro music)

Josh Russell: Welcome to Sidebar, a podcast by Courthouse News. I'm your host, Josh Russell. I'm a Courthouse News reporter working out of the Manhattan Federal Courthouse. You might remember a little TV show called “The Sopranos,” about a Mafia boss in New Jersey named Tony Soprano. Early in the series there's this scene where Tony complains to his psychiatrist about feeling depressed. 

Tony Soprano: Gotta be honest with you, I’m not getting any satisfaction from my work either.

Jennifer Melfi: Why?

TS: Well, because of RICO.

JM: Is he your brother?

TS: No, the RICO statute, you read the papers?

JM: Oh, of course. 

JR: RICO, otherwise known as the Racketeer Influenced and Corrupt Organizations Act. It's famous as the law used to take down organized crime, but that's not the only time it comes up in court. RICO is the subject of this episode: What it is, what it isn't and why it's used so much in one state in particular. I'm joined by our guy in LA, Hillel Aron. 

Hillel Aron: How you doing, Josh? 

JR: So, we're going to start by talking about what's coming up later this year in Georgia, right? 

HA: Yeah, it's one case, but it's going to be split up into a number of trials because there are 61 defendants, mostly activists who were part of a long protest against something called Cop City. 

JR: This is a plan to build a massive police and fire department training center on the outskirts of Atlanta. 

HA: Right, but not just any training center. This would be an 85-acre facility expected to cost more than $100 million. Among other things, it would include burn buildings for firefighter training, a firing range, a 12-acre emergency vehicle operations course, a stable and pasture for police horses, a kennel for police dogs and, controversially, a fake city, like a movie set, with apartments, a bar, a school, a nightclub for police and fire to practice, you know, stuff. 

JR: And why the protests? 

HA: A few reasons. Firstly, this plan has been gestating for a long time, since 2021, when the defund police movement was still in full bloom. I think a lot of those activists saw plans for this fake city and thought this will just train cops to occupy our city.

JR: Further militarizing the police. 

HA: Yeah, exactly. Others are upset over the land the training center is being built on, which is in the South River Forest, one of Atlanta's largest remaining green spaces. So, the protesters were a familiar left-wing coalition and became known by two names: Stop Cop City and Defend the Atlanta Forest. 

JR: And what did the protests look like? 

HA: In 2021, activists started occupying the forest, living in tree houses, building barricades around certain areas. They've vandalized construction equipment with graffiti and even arson. In 2022, five people were arrested and charged with domestic terrorism. A month later, there was another raid that turned violent. One protester was shot and killed by police, and a state trooper was shot in the leg probably by protesters, but there's a lot of disagreement about that incident. Who fired first? Was it friendly fire? That sort of thing. 

JR: In short, this was not a peaceful protest. 

HA: Not entirely no, and it's really a series of overlapping protests and demonstrations. At one of them, in 2023 at a construction site, demonstrators threw rocks, bricks and Molotov cocktails.

JR: And later that year, the indictments came down. 

HA: Right, and the weird part is that they're charged with racketeering under Georgia's infamous RICO statute. Prosecutors say Defend the Atlanta Forest is a criminal enterprise. 

JR: Like we said in the opening, isn't racketeering for organized crime and street gangs? 

HA: Yeah well, it was written to target the Mafia. 

JR: La cosa nostra. 

HA: Funny you say that. I spoke with a Mafia expert named George Anastasia. He's a longtime reporter for the Philadelphia Inquirer. He told me one of his pet peeves is when people say La Cosa Nostra. 

George Anastasia: You look at government reports today and they talk about La Cosa Nostra. It's not La Cosa Nostra, it's Cosa Nostra. In Italian, Cosa Nostra, “our thing.” La Cosa Nostra translated to “the our thing.” Makes no freaking sense. But what happened was there's some bureaucrat in the FBI that loves three initials: IRS, DEA, FBI and they decide La Cosa Nostra second reference. In any of these reports it's LCN. And that's you know, it's just, it's a private kind of thing that bothers me. 

JR: Okay, my bad, Cosa Nostra. And how big were they before Rico?

HA: Here's George again. 

GA: The mafia in the 1930s, 1940s, 1950s, 1960s. They were the 500-pound gorilla in the American underworld. They dominated the American underworld. I had a wise guy tell me, and this resonates with me even to today, this was a wise guy several years ago. We're talking about what organized crime is, and he said it's very simple: Vice is commerce. Anything that's illegal that can generate money. That's what we're involved in, whether it's narcotics, whether it's gambling, whether it's loan sharking. That's what it's all about. 

JR: So, fingers in many pies. 

HA: Right, gambling, loan sharking, numbers. That was an early illegal way to play the lottery. The mob also controlled many of the unions like the Teamsters and the Longshoremen. In the 1930,s something called “The Commission” was set up with Charlie “Lucky” Luciano as the head, and The Commission was sort of like a board of directors for all organized crime in the U.S., and that included seven Italian crime families: the “Five Families” in New York plus Al Capone in Chicago plus a family in Buffalo. Later, other families were added. And the purpose was to divide up territory, prevent gang wars and keep their businesses secret, out of the press and off law enforcement radar. 

JR: Was it difficult for law enforcement to go after the Mafia back then? 

HA: Some mob leaders did face prosecution. Luciano was convicted of running a chain of brothels and was eventually deported. 

JR: And Al Capone was famously arrested for tax evasion. 

HA: Right, but there was a sense from law enforcement that you couldn't get most of the heads of these families because the orders were vaguely worded, or they were part of a long-established routine. I talked to a guy named Jeff Grell, a former prosecutor and attorney, who's written a book about RICO. He's going to talk about a theoretical mob boss, and he uses Don Vito Corleone as an example from “The Godfather.” 

Jeff Grell: All that a guy like Vito Corleone does is he sets these very broad policies that then go on to sort of govern the crime family underneath of him. And all of the guys in that room are agreeing. It's kind of like a United Nations of crime families in the United States. They're agreeing that, “Hey, we're going to abide by certain restrictions, we're going to pay certain commissions to certain families, we're going to do certain things, we're not going to do other things.” And so, setting these broad policies, the godfather type figures in these organized crime families were very difficult to prosecute, because in a normal conspiracy you have to show that there was an agreement, usually an implicit agreement or an agreement proven by circumstantial evidence, that the defendant somehow agreed to further or facilitate the criminal activity. And so, godfathers didn't generally, like I said, order people to be murdered or if they did order a murder, it was in such general terms that it was difficult to prosecute, like you know, “Go take care of that problem.” Or there was code language and so prosecutors time and time again ran into issues with did they? Could they prove a specific conspiratorial agreement? Was the evidence of the godfather's words specific enough to tie him to that particular crime that's being prosecuted? And the idea behind RICO is to get at these people that don't get their hands bloody, that essentially stand apart from the criminal activity but yet are at the pinnacle of that criminal activity, operating and managing it. Under RICO, you're not liable for directly committing a crime. You're liable when you use other people to engage in crime. 

HA: In 1970, President Nixon signed the Organized Crime Control Act into law and, among other things, it set up the witness protection program and included the Racketeer Influenced and Corrupt Organizations Act, or RICO, which made racketeering a crime. 

JR: A pretty serious crime too, punishable by up to 20 years in prison per count. But what exactly is racketeering? 

HA: It's committing crimes routinely as part of an enterprise. To be found guilty of racketeering activity, you have to be found guilty of at least two predicate offenses. 

JR: Just two? 

HA: Right. Under the law, two offenses is a pattern. These RICO predicates include murder, gambling, kidnapping, bribery, drug trafficking, money laundering and embezzlement of union funds. 

JR: And the name RICO, is that just a normal acronym or is there a double meaning there? 

HA: Well, there is some dispute about this, but a lot of people think the name was a tongue-in-cheek reference to the 1931 movie “Little Caesar,” about a mob boss in Chicago named Rico Bandello, who likes to refer to himself in the third person. 

“Little Caesar” clip: You should have come out when I told you to, Rico. Ah, mother of mercy, is this the end of Rico? 

JR: And was RICO successful in taking down the Mafia? 

HA: It took more than a decade, but yes. Prosecutors were reluctant to use RICO at first, but eventually they did and along with another law, the 1968 federal wiretap law, they did break the back of Cosa Nostra. The first really big case was the Mafia Commission trial brought about by then-U.S. Attorney Rudolph Giuliani, who indicted nine high-level organized crime figures, including the heads of all Five Families, basically the entire Commission. Let's hear from Eric Seidel, the former head of New York state's Organized Crime Task Force. 

Eric Seidel: The seminal case was the Commission case brought by Rudy Giuliani in 1985. And there the enterprise was defined as The Commission, the heads of the Five Families of New York and individual heads of those families or important people in those families were charged and convicted. And, you know, it was basically an extortion case involving the companies who bid on certain construction contracts kick back to the Mafia for contracts above a certain amount of money, and it involved concrete, basically. So, you know, you had a murder or two in there as well. 

HA: The trial lasted 10 weeks and featured testimony from informants and undercover agents, as well as hours of recorded conversations of the mob bosses, which were very damning. Perhaps most significantly, the defense attorneys admitted for the first time the existence of the Mafia. The anonymous jury deliberated for five days before finding all the defendants guilty. All but one of them were sentenced to 100 years in prison. I want to play a clip from a Channel 5 news story about the sentence. 

Channel 5 clip: Seven of the eight commissioned defendants received 100-year prison terms and fines of a quarter of a million dollars apiece. The eighth received a 40-year term and a $50,000 fine and they all received an earful from the man who heard their case, federal Judge Richard Owen. To Genovese boss Fat Tony Salerno, Owen said, “There's a tape with you on it saying, ‘I made the mob. If it weren't for me, there wouldn't be anything left.’ The fact remains that you've spent your life feeding on this community with murders, beatings and threats.” To Tony Ducks Corallo, “You've been the boss of the Lucchese family for a long, long, long time. You were prepared to kill somebody if they got in your way.” Most of the defendants took it all without complaining. Lucchese underboss Paul Santoro said, “Just give me a hundred years and get it over with.” But Colombo chief Carmine Persico had the most to say. “I feel the prosecution should be on the stand,” he intoned. “This case was prejudiced from the very first day.” 

HA: Here's George Anastasia again. 

GA: All of those people testified at that Mafia Commission trial, and it became a template for how do you attack these organizations, and from there forward, I mean, what we've seen is basically the decimation of Cosa Nostra in America. 

JR: The trial helped make Giuliani famous as a tough-on-crime, incorruptible federal prosecutor right here in the Southern District of New York, who later became mayor. 

HA: Prosecutors also used RICO to go after John Gotti. 

JR: Dubbed the Dapper Don.

HA: Also the Teflon Don, because he beat a number of cases before he was finally convicted of racketeering in 1992. Now, not all Mafia prosecutions were successful. In the 1980s, 20 New York mobsters were charged with racketeering under no less than 76 RICO predicates. The trial dragged on for 21 months. 

JR: Wow. 

HA: To this day it remains the longest federal criminal trial in U.S. history. 

JR: Because there were so many defendants? 

HA: Partly that, partly because of the RICO law. There's a lot more to prove. With RICO you have to prove all the predicates, and you have to prove that the acts were done in furtherance of the enterprise. A further wrinkle with this trial was that one of the mobsters, Jackie DiNorscio, represented himself and the jury actually liked him and acquitted all 20 defendants. This later became a movie called “Find Me Guilty,” starring Vin Diesel as DiNorscio and directed by Sidney Lumet. 

“Find Me Guilty” clip: You see this hat. I'm wearing this hat to make me look like a gangster, because that's what that table wants me to be. A gangster. But I'm not a gangster, ladies and gentlemen. I'm a gangster. This ain't even my hat, by the way. 

HA: The U.S. attorney for the District of New Jersey who brought that case? One Samuel A. Alito. 

JR: At what point does the RICO statute start to get wielded to go after people who aren't in the Mafia? 

HA: Pretty much right away. Robert Blakey, the Senate committee staffer who wrote the RICO law, once said, “We don't want one set of rules for people whose collars are blue or whose names end in vowels, and another set for those whose collars are white and have Ivy League diplomas.” So, in 1979, even before the Mafia Commission trial, federal prosecutors charged Sonny Barger, the leader of the Oakland Hells Angels, with racketeering. He was actually acquitted of those charges thanks to a hung jury, though he was convicted in 1988 for conspiring to bomb a rival clubhouse. But right from the beginning, RICO was used to go after all sorts of defendants. The Key West Police Department was declared an illegal enterprise, and several officers were found guilty of running a protection racket for cocaine smugglers. They were convicted of racketeering and drug charges. In 1989, a wealthy investor named Michael Milken faced securities fraud and racketeering charges for various financial crimes, including insider trading. Milken pleaded guilty to some charges, though not racketeering, and this is one of the criticisms of RICO, because it has such stiff penalties. It's a way for prosecutors to pressure defendants into pleading guilty to lesser charges. Milken served 22 months in prison and was fined about $200 million, and he lost his trading license. 

JR: Wasn't R. Kelly taken down by RICO? 

HA: Yeah, the singer R. Kelly had been accused many times of sexually abusing women and minors before this, but in 2021, Kelly was tried and found guilty of nine counts, including one count of racketeering, and was sentenced to 30 years in prison. 

JR: There's a civil side to RICO too, right? 

HA: That's right. Here's Jeff Grell, the attorney who wrote the book about RICO.

JG: By all accounts, nobody anticipated it to be anything more than a very niche statute that was used for very particular people like John Gotti or individuals of that nature. As time went on, use of the statute evolved, and, in particular, that evolution was prompted mostly by the civil remedies provision in RICO, which allows private parties, people like you or me if you're a victim of criminal activity and it otherwise fits the requirements of the statute, then you've got the right to bring a lawsuit, just like you could bring a lawsuit if you were in a car accident or you slipped and fell on your neighbor's steps, and so that became very popular because, unlike most claims in the United States, RICO allows plaintiffs to recover three times their damages. You don't have to go through an additional punitive damage phase in a trial. So, that makes it very appealing for plaintiffs' lawyers. 

HA: Grell says that the civil provisions made it into the RICO statute almost by accident, that Robert Blakey hadn't intended to include them and that they're almost verbatim, the same as the civil provisions in the Clayton Antitrust Act. Many big lawsuits have been filed with racketeering as the cause of action, but not always successfully. Here's Jeff again. 

JG: Civil RICO claims was in the cases involving the Catholic church and the sex abuse cases, and so again in those instances, the plaintiffs’ lawyers were trying to argue, “Hey, you know, pope, bishops, whatever church administrators, we know you weren't abusing these kids, but you engaged in project concealment again, mail and wire fraud to cover up the abuse that was occurring, to move priests around, to protect them, to protect the reputation of the church, and so you're liable for all the sex abuse,” and so that was very widely publicized. 

HA: And were they successful? 

JG: No, they were not, and that's the catch. A lot of the most famous RICO claims were not very good. 

HA: Interesting 

JG: And those claims didn't go anywhere, the RICO claims didn't go anywhere because RICO does not allow a plaintiff to recover for bodily injuries. So, injuries, what lawyers call personal injuries, so, those were all sex abuse cases, which is an assault or a battery. 

JR: You can't go after personal injury, but you can sue for economic loss? 

HA: Right, injuries to business or property. The lawsuits were allowed to continue under different causes of action and many of those suits were settled for a lot of money. 

JR: And the same thing occurred with the lawsuits against Big Tobacco. 

HA: Exactly. The RICO claims were tossed out, but other claims moved forward and actually there's a Supreme Court case pending right now about that limitation. A truck driver took a CBD product for chronic pain that turned out to have THC in it and he failed a drug test and was fired from his job. Now he's suing the maker of that supplement. A lower court ruled that he couldn't sue under RICO, but he asked the high court to intervene. 

JR: All right, so I think we're finally ready to answer the question we asked at the start of the episode: what the hell is going on in Georgia? 

HA: Up until now, we've been talking about the federal RICO law, but most states have their own racketeering laws, and they tend to be a bit broader than the federal law, with a longer menu of predicate acts that prosecutors can choose from. Georgia's racketeering law is even broader. I spoke to Joe Lancaster. He's a reporter for Reason magazine, a libertarian publication. He's written a lot about Georgia's RICO statute. 

Joe Lancaster: The federal RICO statute requires prosecutors to establish both the existence of a criminal enterprise and also a pattern of racketeering activity. The Georgia statute doesn't require the enterprise, it only requires the pattern of activity. So, in Georgia, prosecutors can charge under the racketeering statute based solely on the pattern of activity without proving that there's more than one person involved. One person can be charged with racketeering in Georgia. I saw one legal analyst who was interviewed saying that you know, “You could go in a Sears, shoplift a pair of socks, go next door to another store, shoplift a shirt. Technically, if prosecutors wanted, they could charge you with racketeering for that because you've committed two separate crimes for personal financial benefit that were, you know, related and served a similar criminal purpose.” 

HA: In the 2010s, dozens of public school teachers and principals faced accusations of helping students cheat on standardized tests to help their schools meet certain goals. Twelve went on trial for racketeering and all but one were convicted. 

JR: And the lead prosecutor in the trial was... 

HA: Fani Willis, who went on to become Fulton County district attorney in 2021. 

JR: And she's used RICO a lot, right? 

HA: Yeah, Willis is a self-proclaimed fan of RICO. 

Fani Willis: The reason that I am a fan of RICO is I think jurors are very, very intelligent. I think that they, once ,you know, some people don't want to do jury service, but once they get there, we really find that there are good citizens there. They're very smart, they pay attention, they take these matters serious, but they want to know the whole story. They want to know what happened, they want to make an accurate decision about someone's life, and so RICO is a tool that allows a prosecutor's office and law enforcement to tell the whole story, and so we use it as a tool so that they can have all the information they need to make a wise decision. 

JR: Most famously, she charged President Donald Trump with racketeering. 

HA: And not just Trump. A Fulton County grand jury indicted 19 defendants with racketeering, perjury and conspiracy to commit election fraud. Among the defendants, Trump's former chief of staff, Mark Meadows, and one Rudolph Giuliani. 

JR: RICO giveth, RICO taketh away. 

HA: That's right. 

JR: This was one of four criminal indictments brought against Trump in 2023, and it hasn't made it to trial. 

HA: And it's unlikely to, thanks to Trump's reelection, as well as a big Supreme Court ruling which extended presidential immunity to all official acts. 

JR: The other big RICO case in Georgia was against the rapper Young Thug. 

HA: Yeah, we talked about this a couple episodes ago. This was one of the strangest trials I've ever read about. It became the longest trial in the history of Georgia. Prosecutors say Young Thug, or Jeffrey Williams, was the head of a criminal street gang which doubled as a record label, YSL Records. 

JR: And so kind of like a New Jersey Mafia trial, this became a real circus. 

HA: Yeah, it really did. Again, in part because RICO charges are complicated and hard to prove, but also because of the number of the defendants and some bizarre behavior by the judge, who had to recuse himself partway through the trial, which lasted more than a year.

JR: And this was a debacle for prosecutors? 

HA: Well, yes and no. Most of the defendants, including Young Thug himself, took plea deals. Young Thug was sentenced to five years, but that was commuted to time served. He was also banned from Atlanta for 10 years. So, even though the trial was incredibly long and costly and, as you said, a circus, it did get a bunch of convictions and Fani Willis got to look tough on crime, and one sign of its success was, about a month before the trial ended, she was reelected to a second term as Fulton County DA. So, using RICO, even if you don't get the longest sentence for all the convictions, you still end up looking tough on crime, which is what the DAs really want.

JR: Which brings us back to Cop City. That's being brought by the state attorney general against 61 defendants, including one lawyer from the ACLU who says he was just there as a legal observer. And they're charged with 225 RICO predicates, some very serious like domestic terrorism, arson, assault on a police officer, but other lesser crimes like trespassing or vandalism.

JR: Crimes that would normally be misdemeanors, but here they're just part of a RICO. 

HA: Right, prosecutors allege they're in furtherance of this criminal enterprise, which is a protest movement. So, they're all part of the same criminal act of racketeering. 

JR: I'll just read off some of the predicate acts: Transferring $40 to buy communication equipment. Posting a threat on anarchistnews.org. Posting on Instagram. Attaching a wooden board with metal spikes to a treehouse. Occupying a treehouse. Ignoring police calls to abandon the treehouse. What about this one: Possessing food, camouflage clothing, climber's belt and medication to facilitate long-term occupation of the forest. A guy signed his name as ACAB. Not exactly Lucky Luciano. 

HA: No, here's Joe Lancaster again, from Reason Magazine. 

JL: If you look through this indictment, it includes all sorts of predicate offenses where people are contributed to, or participated in, this criminal conspiracy by setting up a tent or a tree house in the woods, for refusing to leave when asked by law enforcement, for running away when police tried to arrest them, things like that. That, just on their face, is it illegal? And maybe technically maybe, yeah, maybe it's a misdemeanor for refusing to disperse when asked by police, but it certainly does not rise to the level one would think of a criminal conspiracy that involves a RICO statute. In some ways, that's the purpose of the statute is to take people who are broadly affiliated with one another and to paint them with a broad brush, to say that they're all members of this organization which itself is involved in this wide manner of activity, and so therefore they're all complicit in this. And certainly, in some cases that may be justified, but it's that old maxim of, you know, with a large enough hammer everything starts to look like a nail. You know, it is this statute that prosecutors have, where they can charge somebody with a much more severe penalty than one otherwise would assume was justified by the defendant's actions. 

HA: The Cop City trials are expected to start toward the end of the year. You can read all about them on courthousenews.com. 

JR: That's going to do it for this episode. Thanks to our guests Jeff Grell, Eric Seidel, Joe Lancaster and George Anastasia. On the next episode of Sidebar: On average, a person who has been wrongfully convicted spends nine years behind bars, often learning the legal system to advocate for their innocence before being exonerated. Join Amanda Pampuro and Kelsey Reichmann on a journey through the highs and lows of jailhouse lawyers, post-conviction purgatory. 

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