From the sophisticated undertakings of the Genovese crime family to the everyday criminal: the loss of congressional intent in modern criminal RICO application.

• Author: Donaher, Emily A.

Due to the unmanageable development of organized crime in America, principally die growth of La Cosa Nostra, Congress enacted the Organized Crime Control Act of 1970. Through this Act, Congress intended to eliminate organized crime, by criminalizing not only the syndicate but also the activities in which it was engaged. Congress then passed the Racketeer Influenced and Corrupt Organizations Act (RICO), which was to preclude organized crime from infiltrating legitimate American businesses.

Although Congress intended courts to construe the RICO statute liberally to combat organized crime, in some cases, American courts have taken this liberal construction too far. The RICO statute was to be employed in pursuit of formalistic corrupt groups of criminals that were engaged in crimes such as robbery, extortion, and fraud. Today, this is simply not the way in which RICO is applied.

In an appalling modern-day application of the RICO statute, Planned Parenthood filed a RICO lawsuit alleging that anti-abortion demonstrators comprised a RICO enterprise engaged in demonizing, harassing, and intimidating Planned Parenthood facilities. (1) The racketeering lawsuit was filed after Planned Parenthood was the target of viral surreptitious videos, depicting Planned Parenthood doctors marketing fetal tissue. The departure from the original congressional intent of the RICO statute is precisely what this Article is about.

RICO is no longer a statute exclusively used to fight organized crime; instead, RICO is a statute that has been judicially expanded to encompass loosely affiliated groups who are not engaged in traditional organized crime activities. From Planned Parenthood activists to law firms, and even marriages, RICO is a statute used to prosecute groups of individuals rather than organized crime units that are engaged in crimes such as robbery or extortion.

TABLE OF CONTENTS I. INTRODUCTION II. THE HISTORICAL BACKGROUND OF ORGANIZED CRIME A. ORIGINAL INTENT TO COMBAT ORGANIZED CRIME B. ORGANIZED CRIME CONTROL ACT OF 1970 C. RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO) D. The Original RICO ENTERPRISE E. THE CRIMINAL RICO STATUTE III. THE EVOLUTION OF THE RICO ENTERPRISE A. UNITED STATES V. TURKETTI B. POST-TURKETTE C. BOYLE V. UNITED STATES D. REYES V. ERNST & YOUNG IV. THE MOVEMENT AWAY FROM CONGRESSIONAL INTENT A. THE MODERN RICO PROSECUTION B. DIFFERENTIATING BETWEEN RICO ENTERPRISES V. STATUTORY INTERPRETATION AND THE RICO STATUTE A. THE RULE OF LENITY B. THE TEXUALIST METHOD OF INTERPRETATION C. THE ORIGINALIST METHOD OF INTERPREATION D. THE EXPANSION OF THE RICO STATUTE VI. CONCLUSION I. INTRODUCTION

Growing out of an Italian-American neighborhood-level bootlegging-gang, (2) the Mafia became an American sensation. Beginning in the early 1950's, Americans grew fixated on the idea of a secretive yet overwhelmingly influential organized crime family, La Cosa Nostra. It naturally followed from the emergence of a national attention-grabbing criminal organization that the federal government would start to implement procedures to reduce its power. The techniques used in the war against organized crime in America are both intriguing and perplexing, and far more intricate than the common citizen can imagine.

Introduced as a way to limit the influence of high-ranking members of the Mafia, the application of the criminal RICO statute has expanded far beyond its original congressional intent. Courts throughout the United States, including the Supreme Court, have expanded the reach of RICO by continuing to allow the government to prosecute more cases involving loosely affiliated enterprises. Criminal RICO now seems to be a medium by which the government may prosecute nearly any group of criminal defendants, so long as prosecutors are able to string together a series of unrelated crimes that are on the list of substantive RICO violations. (3) This is a problem that remains underacknowledged and that this Article addresses by reevaluating the appropriate scope of RICO application.

Scholars have often written about RICO, but when they do so, they take one of three approaches. First, scholars advocate for RICO's application to criminal street gangs (4) and those engaged in human trafficking. (5) Second, scholars simply explain RICO. (6) Third, scholars discuss the application of RICO in the civil litigation context. (7) This Article takes a different approach. First, this Article reviews the historical background of organized crime in America. The first section includes: the initial efforts to combat organized crime; the Organized Crime Control Act of 1970; the Racketeer Influenced and Corrupt Organizations (RICO) Act; the Original RICO enterprise, i.e., the Genovese Crime family; and a brief description of the various criminal RICO statutory provisions.

This Article next explores the concept of the RICO enterprise through three major cases, which have altered the scope of RICO's application. Finally, this Article surveys three types of statutory interpretation, explains the expansion of the RICO statute, and discusses the most rational method of statutory interpretation to apply to the RICO statute.

2. THE HISTORICAL BACKGROUND OF ORGANIZED CRIME

   1. Original Intent to Combat Organized Crime

      While many Americans were unaware of the growing problem of organized crime, municipalities across America urged the federal government to support local efforts to combat organized crime. (8) In response, Senate Resolution 202 was passed in 1950, which established the Special Committee on Organized Crime in Interstate Commerce, "the Kefauver committee," to determine whether organized crime was infiltrating into or operating in interstate commerce. If it was, the committee was to identify those engaged in such activities. (9)

      During his tenure as an Assistant United States Attorney, Samuel Alito stated that the "[ejnactment of RICO legislation culminated four decades of congressional efforts to combat organized crime." (10) During the first ten years of (lie enactment of the RICO statute, the entire federal government prosecuted fewer than twenty RICO cases per year, which then jumped to over 100 per year since 1982. (11) The two goals of the RICO statute were to criminally prohibit the membership of individuals in organized crime and "to stop organized crime's infiltration of legitimate businesses." (12) RICO was derived from decades of presidential crime commissions that followed the attacks on organized crime during the Prohibition-era. (13) After the federal government outlawed prohibition, organized crime moved into the realm of extortion, labor racketeering, and gambling. (14) Facing the threat of communism, Congress wanted to prohibit powerful organized crime families from harming the United States. (15)

      Prior to the 1960's, J. Edgar Hoover denied the existence of the Mafia. Although the organized crime problem in America was rising, Hoover believed it was mainly "gangs of 'hoodlums' and 'gangsters[.]'" (16) This was the belief until New York state troopers uncovered the national Mafia-leader conference, called the Apalachin conclave, in 1957. (17) Hoover and Attorney General Robert F. Kennedy set out to combat organized crime. (18)

      Subsequently in 1963, Joe Vilachi (19) opened Americans' eyes when he publicly testified before the Senate Permanent Subcommittee on Investigations hearing on organized crime and narcotics regarding the Mafia. (20) For six days, Vilachi set out the Mafia's structure (21) and explained the organization's national reach, including its twelve-man leadership commission. (22) Though Vilachi's week-long testimony only led to one prosecution, it brought awareness to the growing threat of organized crime in America. (23) Although there were no immediate criminal prosecutions, the FBI created the Top Hoodlum program, which was implemented to identify the top ten Mafia leaders in each region. (24) The FBI officials independently decided to unlawfully bug locations in which the Mafia held their meetings; therefore, none of the evidence gathered could be used at trial. (25)

      The President's Commission on Law Enforcement and Administration of Justice, also called the Katzenbach Commission, (26) was established by President Lyndon B. Johnson in 1965, through an Executive Order to analyze crime sources and the adequacy of law enforcement systems to combat such crime. (27) In 1967, the Katzenbach Commission reported that there was an enormous need for federal assistance to combat all types of crime at the state level. (28)

      In April of 1969, President Johnson addressed the House of Representatives in a message regarding the epidemic of organized crime in America. (29) He explained that these "criminal cartels" supported themselves through economic monopolies created by their engagement in illicit gambling, narcotics trafficking, and loan sharking. (30) Further, these criminal organizations promoted street level crime and penetrated and corrupted labor unions through intimidation, torture, bribery, and retaliation. (31) These criminals undermined the democratic principles of decency in regard to other members of society, as they targeted anyone and anything that could make them a penny. (32) President Johnson set out to combat organized crime by gathering together the federal, state, and local governments to a prepare and implement a long-term plan of action. (33)

      The Katzenbach Commission reasoned that organized crime continued to flourish mainly due to problems in the procedure of "evidence-gathering." (34) For example, members of the public were unwilling to report criminal acts committed by organized crime, either because they did not want to incapacitate their supplier, or because they were afraid of the consequences of cooperating with law enforcement. (35) Additionally, any informants the government exploited were tortured and then murdered to dissuade others from informing. (36) Those who slipped...