Rico, Merger, and Double Jeopardy

JurisdictionUnited States,Federal
CitationVol. 15 No. 01
Publication year1991



RICO, Merger, and Double Jeopardy

Earle A. Partington(fn*)

I. Introduction

In recent years, convictions under the Racketeer Influenced and Corrupt Organizations Act (RICO)(fn1) have been frequently challenged based on the common law doctrine of merger(fn2) and the Fifth Amendment protection against double jeopardy.(fn3) These challenges have generally failed. They illustrate that current law does not provide sufficient merger and double jeopardy protection to a RICO defendant who is facing prosecution for conduct for which he was previously tried or that forms the basis for prosecution for multiple offenses.

Underlying these failed challenges is a disturbing suggestion by recent Supreme Court decisions that double jeopardy no longer imposes constitutional limitations on legislative power to impose multiple punishments. Instead, the Court has deferred to legislatures the right to decide what punishments are constitutionally permissible. However, a recent Supreme Court decision, Grady v. Corbin(fn4) has changed the traditional double jeopardy analysis, expanding double jeopardy protection for defendants in cases of subsequent single act criminal prosecutions. Unfortunately, the United States Courts of Appeals have split on whether Grady's protection extends to RICO defendants confronted with multiple prosecutions, and the Supreme Court did not address whether Grady would extend to multiple punishments. Only by extending Grady's double jeopardy protection to RICO and other complex statutory schemes will courts finally afford adequate constitutional protection for RICO defendants against successive prosecutions and multiple punishments.

This Article will examine RICO as it has been interpreted by the United States Courts of Appeals and the Supreme Court of the United States in an effort to determine the effects that merger and double jeopardy have had in the past, and should have in the future, upon RICO prosecutions. Because the doctrines of merger and double jeopardy are criminal law principles, only the criminal aspects of RICO will be examined.

Initially, this Article will explore the purpose and history of RICO and examine the doctrines of merger and double jeopardy and their application to RICO indictments and convictions. Additionally, the impact of double jeopardy on other complex statutory schemes will be reviewed both in conjunction with RICO indictments and as a predictor of possible RICO double jeopardy analysis. This Article will then focus on the disturbing trend of the Supreme Court to limit double jeopardy protection when Congress has approved multiple punishments and convictions. Finally, this Article will examine Grady v. Corbin, focusing on its dramatic expansion of double jeopardy protection and its potential to provide additional constitutional protection for RICO defendants.


The purpose of RICO is to target organized crime. The legislative history of RICO reveals that in enacting the Organized Crime Control Act of 1970, of which RICO is a part, Congress found that:It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.(fn5)

This Act further provides that ". . . the provisions of this title shall be liberally construed to effectuate its remedial purposes" and that "[njothing in this title shall supersede any provision of Federal . . . law imposing criminal penalties ... in addition to those provided for in this title."(fn6)

These provisions have been construed... to permit, perhaps even to encourage, courts to impose cumulative sentences for RICO offenses and the underlying crimes. Cumulative sentences are the "enhanced sanctions" which Congress deemed necessary to treat the spreading disease of organized crime. In fact, if cumulative convictions and sentences were disallowed by courts, Congress' purposes to eradicate organized crime would be thwarted because the RICO penalties are in many cases lighter than penalties for underlying offenses.(fn7) Congressional intent to permit cumulative punishment is by no means clear, however, and nothing in the legislative history of RICO expressly indicates a Congressional intent to permit successive prosecutions for the same conduct, whether one or more of the prosecutions are brought under RICO.(fn8)

A RICO defendant must commit two predicate acts in order to be convicted under the RICO act. Section 1961 of RICO defines key terms and a number of state and federal crimes that are "predicate acts."(fn9) Any two predicate acts become a "pattern of racketeering activity."(fn10) A RICO defendant must have committed at least two of these predicate acts within 10 years. The defendant must also be guilty of additional conduct proscribed under § 1962.

RICO creates four separate criminal offenses under § 1962. Section 1962(a)(fn11) prohibits the establishment, acquisition, or control of illegitimate or legitimate businesses with illegally derived funds. Illegally derived funds are defined as any income derived directly or indirectly from a pattern of racketeering or any loan sharking activities in which the particular defendant participated as a principal.(fn12) Section 1962(b)(fn13) prohibits the illegal acquisition, maintenance of an interest in, or control of any enterprise affecting interstate or foreign commerce. Problems of proof have made § 1962(a) prosecutions extremely rare, and § 1962(b) prosecutions are infrequent.(fn14)

The key provision is § 1962(c),(fn15) which prohibits any employee or person associated with an enterprise from conducting or participating directly or indirectly in the conduct of the enterprise through a pattern of racketeering or collection of unlawful debt. The statute defines "racketeering activity" and "enterprise" broadly; as a result, § 1962(c) encompasses a wide variety of crimes, including white collar crime.(fn16)

Section 1962(d)(fn17) provides that a conspiracy to violate §§ 1962(a), (b), or (c) is a separate substantive offense. The majority of reported prosecutions have been brought under §§ 1962(c) and (d); however, the double jeopardy issues raised by § 1962(c) apply with equal force to §§ 1962(a) and (b). Thus, discussions of cases prosecuted under § 1962(c) apply equally to § 1962(a) and § 1962(b) prosecutions.

Frequently, RICO prosecutions for predicate acts of racketeering activity are alleged as separate counts (one act per count) in the indictment when those predicate acts are themselves separate federal crimes. When predicate acts are not alleged as separate counts, prosecutors use a special verdict to allow the jury to determine whether the predicate acts alone were committed.(fn18) The latter case does not present merger or double jeopardy issues because the defendant is not subjected to multiple prosecutions or punishments. Likewise, prior state prosecutions for predicate acts that are prosecuted under RICO do not present double jeopardy issues, regardless of whether the prior state prosecutions resulted in conviction(fn19) or acquittal.(fn20) Double jeopardy does not apply because the dual sovereignty doctrine as set forth by the United States Supreme Court in Abate v. United States,(fn21) precludes any finding of double jeopardy when successive prosecutions are by different sovereigns.(fn22) The Abate court recognized that state and federal governments are separate sovereignties, each deriving its power from a different source. Therefore, a crime defined by both sovereignties offends the peace of each sovereignty separately and may be punished separately by each.(fn23)

Consequently, double jeopardy and merger problems arise only in the context of (1) prior or simultaneous federal predicate act prosecutions and § 1962(a), (b), and/or (c) RICO prosecutions, or (2) successive federal conspiracy prosecutions, at least one of which is a § 1962(d) RICO conspiracy prosecution.

In a typical RICO case, multiple defendants are charged with one count of violating 18 U.S.C. § 1962(c), one count of violating 18 U.S.C. § 1962(d), and multiple "predicate act" counts. All of these counts are generally charged in one indictment or divided in virtually any fashion between successive indictments. Typically, the RICO defendants then move to dismiss either the § 1962(c) and § 1962(d) counts or the predicate act counts on the ground of double jeopardy. The substantive RICO counts and the predicate act counts may be considered to be the same offense, thereby invoking the constitutional protection against double jeopardy.(fn24)

Although RICO has been viewed purely as a unique kind of recidivist or penalty enhancement statute,(fn25) the prevalent view is that RICO is not a recidivist statute(fn26) for the following reasons: (1) A RICO conviction requires more than the commission of two or more predicate acts; it also requires proof of an association with an enterprise, and (2) the Organized Crime Control Act of 1970 deals with recidivism in a separate title, Title X (RICO is Title IX).(fn27) The Supreme Court has supported this prevalent view when interpreting the Continuing Criminal...

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