Civil Versus Criminal RICO and the
"Eradication" of La Cosa Nostra
I.
INTRODUCTION
Although organized crime, and more specifically "La Cosa Nostra,"' has
thrived in New York City (and across the United States) for over a century,2
it took law enforcement approximately fifty years to even acknowledge its
existence. 3 Despite the authorities' recognition of some form of "nationwide criminal conspiracy," 4 the public was left almost unaware of the conspiracy, and law enforcement efforts continued to be fairly lax in regards to
this phenomenon. 5 Over thirty years ago, however, the Racketeer Influenced and Corrupt Organizations Act6 (RICO) was enacted as Title IX of
the Omnibus Organized Crime Control Act (OCCA)7 to specifically "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."8
1. "'La Cosa Nostra' refers to a nationwide crime organization which is divided into
units called 'families.' It is an Italian phrase that translates into English as 'our thing' or 'this
thing of ours.'" United States v. District Council of New York City and Vicinity of United
Broth. of Carpenters and Joiners of America, 880 F. Supp. 1051, 1056 n.1 (S.D.N.Y. 1995).
2. See United States v. Sessa, 821 F. Supp. 870, 871 (E.D.N.Y. 1993); see also Fletcher
N. Baldwin, Jr., Organized Crime in the Americas and Transnationally, 13 FLA. J. INT'L L.
79, 79 (2000) ("The fact is organized crime has existed for what seems to be forever.").
3. Eugene Solomonov, Comment, U.S. - Russian Mutual Legal Assistance Treaty: Is
There A Way To Control Russian Organized Crime?, 23 FORDHAM INT'L L.J. 165, 215 n.337
(1999) (citing former FBI director, Louis Freeh); see also Craig M. Bradley, Racketeering
And The FederalizationOf Crime, 22 AM. CrM. L. REV. 213, 215 (1984) ("While organized
criminal activity in America is undoubtedly as old as America itself, the notion that the
federal government ought to do anything about it is relatively recent.").
4. Debate continues regarding the national characteristic of La Cosa Nostra, as well as
the degree of coordination amongst the families. See James B. Jacobs & Laury P. Gouldin,
Cosa Nostra: The Final Chapter?, in 25 CRIME AND JUSTICE. 129, 135 (Michael Tonry ed.,
1999) [hereinafter Jacobs, Final Chapter].
5. See Lesley Suzanne Bonney, Comment, The Prosecution of Sophisticated Urban
Street Gangs: A ProperApplication of RICO, 42 CATH. U. L. Rav. 579, 583 (1993) ("For
many decades, the complex structure and virtual invisibility of Mafia kept most Americans
unaware of its existence, and left most law enforcement officials unable to infiltrate or understand its operation."); see discussion infra Part H.B.
6. Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (1982 &
Supp. IV 1986).
7. Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922 (1970).
8. Id.; see also United States v. Turkette, 452 U.S. 576, 589 (1981).
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[Vol. 28:279
Over two decades after the first criminal RICO conviction of a La Cosa
Nostra boss,9 and over sixteen years after the first civil RICO action was
successfully brought against an organized crime controlled enterprise, 0
many commentators have proclaimed the death, imminent demise, or severe
crippling of La Cosa Nostra within the United States.11 One "eminent
scholar" 12 has stated that "[a]n unprecedented law enforcement attack, coupled with new civil and regulatory organized crime control strategies,
leaves the survival of the Italian organized crime families in doubt." 13 In
1986, President Ronald Reagan boldly claimed to have "the mob on the
run."14 It has been stated that "[s]ome families have disappeared, and
others are only [fifty] percent to as little as [ten] percent of their size [thirty]
years ago."15 Extensive use of the act created to "eradicate organize crime"
has allegedly done just that,1 6 through what some have labeled "draco9. See Manna v. United States Dep't of Justice, 815 F. Supp. 798, 802 n.3 (D.N.J. 1993)
("On November 21, 1980, Frank "Funzi" Tieri was convicted of being the "boss" and of
operating affairs through a pattern of racketeering activity which involved predicate acts of
murder, extortion, loansharking, receipt of stolen property, and bankruptcy fraud."); see also
United States v. Tied, 636 F.2d 1206 (2d Cir. 1980) (denying appeal); Jacobs, Final Chapter, supra note 4, at 131;
ROBERT J. KELLY, ENCYCLOPEDIA OF ORGANIZED CRIME IN THE
UNITED STATES: FROM CAPONE'S CHICAGO TO THE NEW URBAN UNDERWORLD 298 (2000)
[hereinafter OC ENCYCLOPEDIA] (discussing the conviction of the Genovese Organized
Crime Family boss Frank "Funzi" Tieri).
10. See generally United States v. Local 560, Int'l Bhd. of Teamsters, Chauffeurs, 780
F.2d 267 (3d Cir. 1985); see also JAMES B. JACOBS ET AL., BUSTING THE MOB: UNITED
STATES V. COSA NOSTRA 31 (1994) [hereinafter JACOBS, US V. COSA NOSTRA]; Michael C.
Liebman, Note, Governmental Civil RICO Actions and Labor Unions: Reorganization and
Innocent Persons, 58 GEO. WASH. L. REv. 125, 126 (1989).
11. See Introduction to OC ENCYCLOPEDIA, supra note 9, at xi; see also John J. Lulejian,
Comment, Making Sense of the Kaleidoscope of Patterns:A Practitioner'sGuide to Understanding the Third Circuit's Interpretationof Civil RICO's "Pattern of Racketeering Activity," 69 TEMP. L. REv. 413, 414-15 (1996) ("Many predicted that the Mafia, or La Cosa
Nostra, would be destroyed by the turn of the century."); Jacobs, Final Chapter,supra note
4, at 129; Bonney, supra, note 5, at 580-01; James 0. Finckenauer, Ph.D., La Cosa Nostra
in the United States, National Institute of Justice, International Center, at http://
www.ojp.usdoj.gov/nij/internationallcn.html (last visited Jan. 10, 2002); Alan A. Block, Or-
ganized Crime: History and Historiography, in
HANDBOOK OF ORGANIZED CRIME IN THE
UNITED STATES 39, 42-43 (Robert J. Kelly, et al. eds., 1994) (citing Murray Kempton, "Another Case of Multiculturalism," The New York Review of Books (9 April 1992)) ("Make no
mistake: once the federal prosecutors contrive to encase John Gotti, we shall lost the last of
the grand personages who had been our dependence for supporting the myth of the Mafia as
a force in current history.").
12. See Finckenauer, supra, note 11. James B. Jacobs is professor of law at New York
University School of Law who has published a number of books and articles on the subject
of organized crime. See Jacobs, Final Chapter, supra note 4, at 129.
13. Jacobs, Final Chapter, supra note 4, at 129.
14. Ronald Reagan, Declaring War on Organized Crime, N.Y. TIMES, Jan. 12, 1986, at
26, available at LEXIS, News Library, N.Y. Times File.
15. Finckenauer, supra note 11.
16. See Lulejian, supra note 11, at 415; see also Christopher W. Madel, The Modern
RICO Enterprise: The Inoperationand Mismanagement of Reves v. Ernst & Young, 71 TUL.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
nian ' "7 and "drastic remedies."' 8 Successful prosecutions of the heads of
La Cosa Nostra families (called "Bosses," "Dons," or "Godfathers," among
others), 9 nearly unheard of before RICO, 20 has triggered reference to the
"twilight of the Godfathers." 2 I Entire La Cosa Nostra organizations have
apparently been "dismantled. 2 2 Organized crime's influence over wealthy
enterprises (including labor unions, 23 New York's Javits Convention
Center, 24 and Kennedy Airport 25 ) and citywide industries (such as the construction business 26 and the waste hauling trade 27 ) within New York were
seemingly eliminated.28 Much of the credit for this "eradication" has fallen
on the lap of RICO, 9 as well as the entire OCCA.3 °
L. REV. 1133, 1134 (1997); Richard L. Bourgeois, Jr. et al., Racketeer Influenced and Corrupt OrganizationsAct, 37 AM. CRIM. L. REV. 879, 886 (2000); Yvette M. Mastin, RICO
Conspiracy: Dismantles the Mexican Mafia & Disables ProceduralDue Process, 27 WM.
MITCHELL L. REV. 2295, 2297 (2001) ("RICO allows the federal government to eradicate a
criminal organization such as the Mexican Mafia through the prosecution of its members and
associates for criminal offenses and other acts they commit for the purpose of maintaining
the criminal organization and fulfilling its criminal objective."); Ethan Brett Gerber, Note, 'A
RICO You Can't Refuse': New York's Organized Crime Control Act, 53 BROOK. L. REV.
979, 981 n.8 (1988).
17. See Gerard E. Lynch, RICO: The Crime Of Being A Criminal, Parts I & 11, 87
COLUM. L. REV. 661, 661 (1987) [hereinafter Lynch I]; see also JAMES B. JACOBS, GoTHAM
UNBOUND: How NEW YORK CITY WAS LIBERATED FROM THE GRIP OF ORGANIZED CRIME
131 (1999) [hereinafter GOTHAM].
18. See H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 233 (1989).
19. See OC ENCYCLOPEDIA, supra note 9, at 36.
20. See infra Part II.B.
21. Introduction to OC ENCYCLOPEDIA, supra note 9, at xi.
22. See United States v. Pungitore, 910 F.2d 1084, 1097 (3d Cir. 1990) ("These consolidated appeals are the latest saga in the government's dismantling of the Philadelphia branch
of La Cosa Nostra."); see also Jacobs, Final Chapter, supra note 4, at 135.
23. See, e.g., United States v. Local 560, Int'l Bhd. of Teamsters, 780 F.2d 267 (3d Cir.
1985); United States v. Local 359, United Seafood Workers, Smoked Fish & Cannery
Union, 889 F.2d 1232 (2d Cir. 1989); United States v. Local 6A, Cement and Concrete
Workers, 663 F. Supp. 192 (S.D.N.Y. 1986); see also JACOBS, US v. COSA NOSTRA, supra
note 10, at 6; infra Part V.B.2.
24. See GOTHAM, supra note 17, at 176-89.
25. See id. at 164-75.
26. See, e.g., United States v. Salerno, 868 F.2d 524 (2d Cir. 1989); United States v.
Persico, 832 F.2d 705 (1987); see also GOTHAM, supra note 17, at 206-22; Marissa L. Morelle, Note, "Something Smells Fishy": The Giuliani Administration's Effort To Rid The
Commercial Trade Waste Collection Industry Of Organized Crime, 42 N.Y.L. SCH. L. REV.
1213, 1237 (1998). For an extensive look at La Cosa Nostra's involvement within the New
York City construction industry, see RONALD GOLDSTOCK ET AL, CORRUPTION AND RACKETEERING IN THE NEW YORK CITY CONSTRUCTION INDUSTRY: THE FINAL REPORT OF THE NEW
YORK STATE ORGANIZED CRIME TASK FORCE (1990) [hereinafter FINAL REPORT].
27. See GOTHAM, supra note 17, at 190-205.
28. See Jacobs, Final Chapter,supra note 4, at 170-76; see also Morelle, supra note 26,
at 1213-14.
29. See Finckenauer, supra note 11 ("The RICO statute has clearly been the single most
powerful tool against the LCN."); see also Rod Nordland, The 'Velcro Don': Wiseguys Finish Last, NEWSWEEK, Apr. 13, 1992, at 34; Edward S.G. Dennis, Jr., Current RICO Policies
282
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However, "[r]equiems for American gangsters are nothing new, and they
are usually premature."'" The following Note will explore the RICO statute in the context of La Cosa Nostra actions. The focus will be upon the
notable "Five Families of New York,"33 considered the most powerful and
"probably the best-known example of the emergence of... organized crime
in a single city." 3 4 This should not perpetuate the "alien conspiracy" model
of the Department of Justice, 43 VAND. L. REV. 651, 652 (1990); Jacobs, Final Chapter,
supra note 4, at 169; GOTHAM, supra note 17, at 132 ("practically every significant organized - crime prosecution was brought under [RICO].").
30. While "[o]nly three of [OCCA' s] Titles create substantive offenses, Title VIII, [regarding] illegal gambling operations, Title IX, [discussed] here, and Title XI, address[ing]
the importation, distribution, and storage of explosive materials, [the rest of the Act] provide[s] various procedural and remedial devices to aid in the prosecution and incarceration
of persons involved in organized crime." United States v. Turkette, 452 U.S. 576, 589
(1981).
31. Introduction to OC ENCYCLOPEDIA, supra note 9, at xi.
32. Although RICO was enacted to combat organized crime elements, the majority of
actions taken have been against defendants without relation to any organized crime organization. See Diane Marie Amann, Spotting Money Launderers:A Better Way To Fight Organized Crime?, 27 SYRACUSE J. INT'L L. & COM. 199, 203 (2000) ("Although RICO was aimed
at organized crime, less than [ten] percent of RICO indictments filed in the first fifteen years
involved a criminal organization ..
); see also Sedima, SP.R.L. v. Imrex Co., 473 U.S.
479, 500-01 (1985) (J. Marshall, dissenting).
33. The Five La Cosa Nostra Families of New York ("The Five Families") and the
powerful structure that survives to this day, originated after the Castellammarese War. See
OC ENCYCLOPEDIA, supra note 9, at 56. Five "lieutenants" from both the warring Masseria
and Maranzano factions of early New York, took control of their own families following the
deaths of the two bosses. See id. at 55-56 (for a brief look at the war itself.) Charles "Lucky"
Luciano is often given the credit for this arrangement as well as for "'Americaniz[ing]' the
Mafia." See id. at 134. During Luciano's prison sentence and eventual exile, however,
Frank Costello became the acting boss until he was scared off by new boss, Vito Genovese
and his henchman, Vincent Gigante. See id. at 134-35. The Genovese Organized Crime
Family retains Vito's name today. Joseph Profaci was another "founding godfather," who
was succeeded by Joseph Magliocco, until eventually Joseph Colombo, Jr. took over, and
whose name remains for the Colombo Organized Crime Family. See id. at 78. The Luchese
Organized Crime Family was originally headed by another Maranzano soldier, Tom Gagliano, until his death, when Gaetano "Three-Finger Brown" Luchese took over. See id. at
197. Vincent Mangano retained leadership over another of the early New York crime families following the Castellammarese War until his assassination and takeover by Albert Anastasia, who was also suspected of being his former boss' killer. See id. at 207-08. Anastasia
was eventually assassinated as well, with the head position falling to Carlo Gambino, who
still retains the name of the Gambino Organized Crime Family. See id. at 129. Only the
Bonanno Organized Crime Family retains the name of its original "father" - Joseph
Bonanno. See id. at 35.
34. MICHAEL D. LYMAN & GARY W. POTTER, ORGANIZED CRIME 115 (2d ed. 2000)
[hereinafter LYMAN & POTTER]; see also Lulejian, supra note 11, at 450 ("La Cosa Nostra is
'the largest, most extensive, and most influential crime group in this country.'"). Because
these entities have been more visible to the public, there is more known about New York
City's Italian criminal entities than any of the other twenty-three La Cosa Nostra families
known to exist within the United States, or of any other ethnic variations of the criminal
syndicate. See Jacobs, Final Chapter, supra note 4, at 135; see also Patrick J. Ryan, A
History of Organized Crime Control: Federal Strike Forces; in HANDBOOK OF ORGANIZED
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
of organized crime, 35 nor to foster the ill-founded notion that organized
crime is the Mafia or La Cosa Nostra. 36 "Since the late 1970's, a presidential commission, numerous congressional hearings, mobsters' testimony in
legal proceedings and autobiographical accounts, and hundreds of criminal
and civil cases have unearthed a wealth of information about the structure
and activities of the Italian organized crime families known as the Mafia
....
,37 Such a wealth of information is still unavailable for the other
40
38
Asian, 39 Colombian,
organized crime groups, including: Russian,
Nigerian, 4 Outlaw Motorcycle Gangs, 42 Youth Gangs,4 3 Prison Gangs, 44
STATES 333, 334 (Robert J. Kelly, et a]. eds. 1994); Bonney, supra
note 5, at 597 n.140.
35. "The 'alien-conspiracy model' of organized crime suggests that organized crime is a
secret society of foreign ethnic groups structured in a nationwide hierarchy organized by
families and based on secrecy and loyalty." Mike Cormaney, Note, RICO In Russia: Effective Control Of Organized Crime Or Another Empty Promise?, 7 TRANSNAT'L L. & CONTEMP. PROBs. 261, 277-78 (1997). Although not created here, the Kefauver Committee of
the 1950s helped facilitate this idea both in law enforcement and the public generally. See
David R. Wade, The Conclusion That a Sinister Conspiracy of Foreign Origin Controls
Organized Crime: The Influence of Nativism in the Kefauver Committee Investigation, 16 N.
ILL. U. L. REV. 371, 372 (1996). Despite data to the contrary, this view has perpetuated the
American ideology of organized crime, and in fact may have led to the creation of RICO.
See id; see also LYMAN & POTTER, supra note 34, at 65-66.
36. See Ryan, supra note 34, at 334; see also Nora V. Demleitner, Organized Crime And
Prohibition: What Difference Does Legalization Make?, 15 WHITEIR L. REv. 613, 615
(1994).
37. Jacobs, Final Chapter, supra note 4, at 129.
38. See Christopher M. Pilkerton, Comment, Cough Up The Money: A PrescriptionFor
Regulating Russian Organized Crime Out of U.S. Health Care, 15 J. CONTEMp. HEALTH L.
& POL'Y 631, 631 (1999):
It's wonderful that the Iron Curtain is gone ...but it was a shield for the
West. Now we've opened the gates, and this is very dangerous for the
world. America is getting Russian criminals .... They'll steal everything
....Nobody will have the resources to stop them. You people in the West
don't know our mafia yet; you will, you will.
Id. (quoting Boris Uvarov, Chief Serious Crimes Investigator for the Russian ProsecutorGeneral.)
39. The Asian organized crime element includes both the Chinese Triads and Tongs.
See Katherine C. Spelman, Combating Counterfeiting, in 417 GLOBAL TRADE MARK AND
COPYRIGHT MANAGEMENT AND PROTECTION 309, 339-40 (Practicing Law Institute ed.,
1995), as well as the Japanese Yakuza or Boryokudan. See generally Mark D. West, Information, Institutions,and Extortion in Japanand the United States: Making Sense of Sokoiya
Racketeers, 93 Nw. U. L. REV. 767 (1999).
40. Such as the Medellin and Cali Cartels. See generally Michael C. Greenberg, Note,
The Cocaine Cartel's Best Kept Secret The Black Market Peso Exchange; The Going Is
Good, But For How Long, and At What Price?, 6 ILSA J. INT'L & COMp. L. 685 (2000).
41. See Victor A. Casillas, Identifying and Supervising Offenders Affiliated With Community Threat Groups, 58 FED. PROBATION 11, 12 (Jun. 1994).
42. Including the Hell's Angels, the Outlaws, the Banditos, and the Pagans. See id.
43. Such as the Bloods and the Crips, notorious California youth gangs now believed to
have spread all the way to New York. See generally Bart H. Rubin, Note, Hail, Hail, Hail,
CRIME IN THE UNITED
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
and even international terrorist groups.45 Additionally, this Note does not
infer that New York City is the only area with an organized crime problem;
La Cosa Nostra has flourished across the nation.4 6
Section I of this Note takes a brief look at specific characteristics of La
Cosa Nostra which have been used in law enforcement efforts against organized crime members. Additionally, a cursory look over such law enforcement efforts prior to enactment of the OCCA will follow. While there
has been a "great deal" written about the role of RICO in combating organized crime,47 this Note concentrates on the distinction of the criminal and
civil portions of RICO in government actions. Section III focuses on the
criminal portion of the RICO statute and both generally and specifically on
some of the major La Cosa Nostra cases in law enforcement history. In
Section IV, an analysis of civil RICO follows with an emphasis on its role
in union litigation. Section V of this Note looks at the "aftermath" that
these cases have had on organized crime. Section VI concludes that any
ringing of the "death knell" for organized crime is once again premature,4 8
and that while both the criminal and civil portions of RICO have had unquestionable results in the war against La Cosa Nostra, civil RICO is more
adept at any long-range goals of eradicating this "mythical Hydra."4 9
The GangsAre All Here: Why New York Should Adopt A Comprehensive Anti-Gang Statute,
66
FORDHAM
L. REv. 2033 (1998).
44. Including the Aryan Brotherhood and the Black Guerilla Family. See James E. Robertson, Cruel and Unusual PunishmentIn United States Prisons;Sexual HarassmentAmong
Male Inmates, 36 AM. CRUM. L. REV. 1, 51 n. 296 (1999).
45. Although "their motivations differ." See Col. Thomas W. McShane, A Changing
America: Life, Liberty and the Pursuit of Security - Balancing American Values in Difficult
Times, 23 P.A. LAWYER 46, 48 (Dec. 2001).
46. See GOTHAM, supra note 17, at 1; see also Lulejian, supra note 11, at 450 ("La Cosa
Nostra is 'the largest, most extensive, and most influential crime group in this country,' ...
[and] is made up of 24 [sic] 'families' nationwide, with major concentrations in Northeastern
urban areas."). In fact, law enforcement has successfully prosecuted La Cosa Nostra figures
across the country. See Benjamin M. Shieber, Electronic Surveillance, the Mafia, and Individual Freedom, 42 LA. L. REv. 1323, 1359 (1982) ("Among these statistics are the FBI's
accomplishments of ...over 6,000 organized crime convictions during the past five years,
including top La Cosa Nostra functionaries in New York City, New England, New Jersey,
Philadelphia, Buffalo, Cleveland, Detroit, Chicago, St. Louis, Kansas City, Denver, and Los
Angeles ....").Although it has been said that while New York City law enforcement
officials hold La Cosa Nostra control as a high priority, elsewhere it is not. See sources cited
supra note 11. For a brief look at the relationship between New York City and La Cosa
Nostra, see GOTHAM, supra note 17, at 2-4.
47. John C. Jeffries, Jr. & Honorable John Gleeson, The Federalization of Organized
Crime: Advantages of Federal Pros'ecution,46 HASTINGS L.J. 1095, 1103 (1995).
48. See Introduction to OC ENCYCLOPEDIA, supra note 9, at xi.
49. See Rudolph W. Giuliani, Legal Remedies For Attacking Organized Crime, in MAJOR IssuES IN ORGANIZED CRIME CONTROL 103, 103 (Herbert Edelhertz ed., 1987) (comparing organized crime to the legendary monster - "Much like the mythical Hydra slain by
Hercules, however, as they cut off one head it was soon replaced by others.").
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
II.
A.
BACKGROUND
Defining Characteristics of La Cosa Nostra
A successful prosecution of criminal organizations entails an understanding of the enterprise and the role of the organization in the commission of
unlawful activities. 5 ° Defining and explaining La Cosa Nostra has perplexed scholars, criminal justice professionals, and policymakers for almost
as long as the organizations have existed.5" The definitions that have developed vary dramatically and reflect the differing viewpoints of their authors.5 2 Some legal scholars conclude that a precise definition of organized
50.
See supra note 35, at 335.
51.
See Francis lanni, Foreword to
HANDBOOK OF ORGANIZED CRIME IN THE UNITED
Xi (Robert J. Kelly et al. eds., 1994); see also Bradley, supra note 3, at 247.
Academic definitions abound. One leading organized crime text defines organized crime merely as 'a nonideological enterprise that involves a number
of persons in close social interaction, organized on a hierarchical basis for
the purpose of securing profit and power by engaging in illegal and legal
activities.' Howard Abadinsky, Organized Crime 7 (Nelson-Hall 2d ed
1985); another posits that '[o]rganized criminal groups are simply business
organizations operating under many different management structures and
dealing in illegal products.' Denny F. Pace and Jimmie C. Styles, Organized
Crime: Concepts and Control 21 (Prentice-Hall 2d ed 1983). Richard Posner defines organized crime as 'criminals organized into illegal firms ...
operating in such criminal fields as loansharking, prostitution, gambling,
and narcotics but also in legitimate fields as well, and employing violence
and the corruption of police as key business methods.' Richard A. Posner,
Economic Analysis of Law 242 (Little, Brown 4th ed 1992). Diego
Gambetta describes the Italian mafia as 'that set of firms which (1) are active in the protection industry under a common trademark with recognizable
features; (2) acknowledge one another as the legitimate suppliers of authentic mafioso protection; and (3) succeed in preventing the unauthorized use
of their trademark by pirate firms.' Diego Gambetta, The Sicilian Mafia:
The Business of PrivateProtection 155 (Harvard 1993). Policymakers likewise disagree. Since 1992, the United Nations Economic and Social Council
Commission on Crime Prevention and Criminal Justice has struggled without success toward a definition. See M. Cherif Bassiouni and Eduardo
Vetere, Towards Understanding Organized Crime and its Transnational
Manifestations,in [M. Cherif] Bassiouni and [Eduardo] Vetere, eds, Organized Crime: A Compilation of U.N. Documents 1975-1998
xxvii.. .[(Transnational 1998)] (distinguishing organized crime from other
criminal groups and legitimate enterprises occasionally employing criminal
means).
Curtis J. Milhaupt & Mark D. West, The Dark Side of Private Ordering:An Institutionaland
Empirical Analysis of Organized Crime, 67 U. Cun. L. REv. 41, 42 n.5 (2000).
52. See Dorean Marguerite Koenig, 1998 Symposium: The Criminal Justice System Facing the Challenges of Organized Crime, 44 WAYNE L. REv. 1351, 1352 (1998).
STATES
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
crime is beyond reach,53 and perhaps relying on this notion, the OCCA
contains no definition of organized crime.54
While it is "difficult 'to find an antidote for the poison you cannot identify,"' 55 some scholars rely on common characteristics of organized crime
entities in order to form a better understanding of them.56 Such attributes
include: a hierarchical control structure,5 7 limited or exclusive memberor threat of violence,5 9 reliance upon bribery
ship, self-perpetuation, 58 use ortrao
and corruption, and the existence of explicit rules and regulations.' A National Institute of Justice report on La Cosa Nostra claimed it was "best
described ... as being entrepreneurial, opportunistic, and adaptable."'"
This final characteristic, La Cosa Nostra's adaptability, is perhaps the
most troublesome to law enforcement. "Part of what makes La Cosa Nostra
strong is its structure and its ability to adapt and change in order to survive."" Organized crime families have "an existence and permanence that
go beyond individual membership,"'63 where recruiting new "soldiers" has
never posed a problem for criminal enterprises.' Individual membership
aside, La Cosa Nostra families as a whole have adapted to their surroundings, enduring emerging organized crime groups 65 and "surviv[ing] changing ideas of what is illegal: As bootlegging gave way to drug trafficking
and as prostitution expands into video pornography on the Internet, organized crime continues to resist suppression and eradication. '"66 "The range of
53. See U.S. DEFT. OF JUSTICE, MAJOR ISSUES IN ORGANIZED CRIME CONTROL 1 (Herbert Edelhertz ed. 1987). For discussion of the attempts to define "organized crime" and the
problems inherit therein, see Gerber, supra note 16, at 992-94.
54. See Organized Crime Control Act of, 1970, Pub. L. No. 91-452, 84 Stat. 922 (1970).
55. Gerber, supra note 16, at 992 (citation omitted).
56. See U.S. DEPT. OF JUSTICE, MAJOR ISSUES IN ORGANIZED CRIME CONTROL 1 (Herbert Edelhertz ed. 1987).
57. See United States v. Bellomo, 176 F.3d 580, 585-86 (2d Cir. 1999); see also United
States v. Gigante, 166 F.3d 75 (2d Cir. 1999); United States v. Locascio, 6 F.3d 924, 936-37
(2d Cir. 1993); United States v. Pungitore, 910 F.2d 1084, 1098 (3d Cir. 1990).
58. See LYMAN & POTTER, supra note 34, at 7. This is also described as "durability" or
"continuity." See U.S. DEPT. OF JUSTICE, MAJOR ISSUES IN ORGANIZED CRIME CONTROL 1
(Herbert Edelhertz ed. 1987).
59. See U.S. DEPT. OF JUSTICE, MAJOR ISSUES IN ORGANIZED CRIME CONTROL 1 (Herbert Edelhertz ed. 1987).
60. This includes a code of secrecy. See LYMAN & PoTrER, supra note 34, at 7; see also
United States v. Sessa, 821 F. Supp. 870, 871 (E.D.N.Y. 1993).
61. Finckenauer, supra note 11.
62. Sara Jankiewicz, Comment, Glasnostand the Growth of Global Organized Crime,
18 Hous. J. INT'L L. 215, 222 (1995).
63. OC ENCYCLOPEDIA, supra note 9, at x.
64. See infra Part VI.
65. See supra Part I.
66. Introduction to OC ENCYCLOPEDIA, supra note 9, at ix. The most notable example
of this was once the Twenty-first Amendment repealed prohibition, effectively legalizing
alcohol and discontinuing organized crime's leading source of profit, the criminal organiza-
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
activities in which organized criminal groups have insinuated themselves is
as flexible today as ever .... "617
Due to these characteristics, comprehensive studies of organized crime
families have been almost non-existent, and law enforcement strategies relying upon faulty or misleading beliefs have perpetuated the continuing existence of the same criminal organizations.6 8 Additionally, it was believed
that La Cosa Nostra's infiltration into legitimate businesses "threatened to
place the mob families beyond the reach of traditional criminal law." 69
However, with the birth of RICO, prosecutors turned the characteristics
which once protected the criminal enterprise, into weapons which allow the
once insulated leadership to be prosecuted. All La Cosa Nostra members
70
were subjected to stronger penal prohibitions, sanctions, and remedies.
Indeed, wiretap evidence shows that the criminals themselves have noticed
the uniqueness of the new law which places them all at risk for participating
in the affairs of a criminal organization. 7 '
B.
History of Law Enforcement Initiatives Before RICO
The beginning of law enforcement's battle with La Cosa Nostra is cloudy
at best. 72 It is clear that "[g]ambling, prostitution, loansharking, and other
vices [associated with organized crime] were commonplace throughout the
nineteenth and twentieth centuries. '73 Forms of organized Italian criminality within the United States have been traced back to the early twentieth
tions effectively adapted by focusing on other illicit ventures such as gambling and labor
racketeering. See LYMAN & POTrER, supra note 34, at 118.
67. See Kelly, Crime and Its Operations, in MAJOR ISSUES IN ORGANIZED CRIME CONTROL 5, 6 (Herbert Edelhertz ed., U.S. Dept. of Justice, 1987).
68. See Ryan, supra note 34, at 334-35.
69. G. Robert Blakely, Forward to Symposium: Law and the Continuing Enterprise:
Perspectives on RICO, 65 NoTRE DAME L. REv. 873, 873 (1990) [hereinafter Blakely I].
70. See Organized Crime Control Act of 1970, Pub. L. No. 91-452, §901(A) 84 Stat. 923
(1970); see also United States v. Angiulo, 897 F.2d 1169, 1179 (1st Cir. 1990); United States
v. Ruggiero, 726 F.2d 913, 923 (2d Cir. 1984).
71. See United States v. Cintolo, 818 F.2d 980, 984-85 (1st Cir. 1987) (explaining that
wiretap of New England La Cosa Nostra boss overheard saying: "Under RICO, no matter
who ...
we are, if we're together, they'll get every ...
one of us.").
72. Many attributed the infamous New Orleans lynching of a number of Italians after the
murder of Police Cheif David Hennessey as the beginning of a response to La Cosa Nostra
within the United States. See Block, supra note 11, at 42. While Hennessey has been
credited as the first to take action against the alleged Italian criminal conspiracy in the
United States, some claim the story is used merely to illustrate the existence of La Cosa
Nostra for over a century. See id. at 42-43; see also CARL SIFAKIs, THE MAFIA ENCYCLOPEDIA: FROM ACCARDO TO ZWILLMAN 249, 269-70 (2d ed. 1999) [hereinafter SIFAKIS].
73. LYMAN & POTTER, supra note 34, at 106.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
century and the "Black Hand," a mysterious criminal element specializing
in kidnapping and extortion.7 4
The vast effects of the Eighteenth Amendment on organized crime in
America are painfully unmistakable. 75 Besides making millionaires out of
otherwise "petty thugs," Prohibition facilitated the creation of a national
system of distribution and organization among the criminal element. 76 This
established network, or "nationalization" of organized crime, 77 was incorporated into other forms of illicit enterprises, such as gambling and labor
racketeering, while corrupt political and law enforcement entities were paralyzed by the enormous wealth afforded to bootleggers. 78 During this time,
law enforcement activities against organized criminals were highly unproductive, allowing gangsters to become rich and powerful enough to control
entire cities, 79 and finally leading to the Twenty-first Amendment's repealing of Prohibition.8 ° Before its completion, however, Prohibition created "a
patina of respectability and tolerance for crime."" "Inthe end, Prohibition
gave birth to and nurtured organized crime and did such a brilliant job that
today we still can't get rid of syndicated gangsters."8
As Prohibition ended, the recently established criminal organizations of
New York began concentrating on other endeavors to replace bootlegging.83 These included such rackets as: "bookmaking, casino gambling, the
number's rackets, construction, the waterfront, trucking, the taxi business,
bail bonds, drugs and bars, nightclubs and restaurants," and prostitution, as
well as old favorites like "protection, burglary, hijacking, and warehouse
robberies."8 4
74. The Black Hand was allegedly transplanted to the U.S. by an immigrant organized
crime boss from Palermo, Sicily, Don Vito Cascioferro. See Jankiewicz, supra note 62, at
217 n. 11. The most infamous member, however, was Ignazio Saietta, or "Lupo the Wolf,"
who allegedly murdered at least sixty victims. See OC ENCYCLOPEDIA, supra note 9, at 3031.
75. The Eighteenth Amendment states: "the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the
United States and all territory subject to the jurisdiction thereof for beverage purposes is
hereby prohibited." U.S. CONST. amend. XVIII, § 1 (1919).
76. See LYMAN & POTTER, supra note 34, at 108-09.
77. See Cormaney, supra note 35, at 277.
78. See LYMAN & POTTER, supra note 34, at 108-09; see also United States v. King, 834
F.2d 109, 111-12 (6th Cir. 1987); Bradley, supra note 3, at 227.
79. See Charles H. Whitebread, "Us" And "Them" And The Nature Of Moral Regulation, 74 S.CAL. L. REV. 361, 364 (2000); see also Bradley, supra note 3, at 226-27.
80. See U.S. CONST. amend. XXI; see also LYMAN & POTTER, supra note 34, at 108;
Bradley, supra note 3, at 227; Honorable Vaughn R. Walker, FederalizingOrganized Crime,
46 HASTINGs L.J. 1127, 1130-31 (1995).
81. Kelly, supra note 67, at 16.
82.
SIFAKIS,
83.
See United States v. King, 834 F.2d 109, 112 (6th Cir. 1987); see also LYMAN &
POTTER,
supra note 72, at 300.
supra note 34, at 109.
84. King, 834 F.2d at 118.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
During this period, future New York Governor and presidential candidate
incarcerated
Thomas E. Dewey,8 5 acting as Manhattan District Attorney,
8 6 Waxey Gordon, 87
Luciano,
"Lucky"
Charles
as
such
many notable figures
and Gurrah Shapiro.8 8 Completing successful criminal prosecutions against
such upper-ranking gangsters was unprecedented; indeed, these were "feats
which no other New York prosecutor had even dared."8 9
Additionally, Dewey sent Louis "Lepke" Buchalter to the electric chair
for first-degree murder. 9" Buchalter was the only major organized crime
figure to be executed by the government. 9 Dewey's prosecution of
Buchalter resulted from the information received while taking down the
mob's national hit squad, "Murder, Inc." 92 Despite these well-publicized
victories, the Five Families of New York continued to thrive, monopolizing
the traditional vice rackets in each of the boroughs, and steadily gaining
control over the labor rackets and other legitimate industries within New
York City. 93 Luciano's organization, for instance, now known as the Genovese Organized Crime Family, 94 continues to operate illicit rackets. It has
expanded its interests in seafood distributors, restaurants, the waste cartage
and livery industries, and vending machine businesses, 95 and is considered
to be historically the most powerful of the New York families.9 6
In 1946, Congress enacted the Hobbs Act 97 to specifically address the
problem of organized crime." The act prohibited the common La Cosa
Nostra practice of extortion, or "the obtaining of property from another,
with his consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right." 99 In fact, "[u]ntil 1970,
85.
See SIFAKIS, supra note 72, at 118.
86. See People v. Luciano, 299 N.Y.S. 132 (1937). Luciano and nine others were convicted "of conducting and directing on a large scale the business of prostituting women, with
features of wholesale oppression and corruption." Id. at 133.
87. See Starr v. Mandanici, 152 F.3d 741, 754 (8th Cir. 1998).
88.
See SIFAKiS, supra note 72, at 118.
89. Starr, 152 F.3d at 754.
90. See People v. Buchalter, 45 N.E.2d 225 (N.Y. 1942).
91. See OC ENCYCLOPEDIA, supra note 9, at 41.
92. For an in-depth, first hand story of the demise of Murder, Inc. and prosecution of
Buchalter, see BURTON B. TuRKus & Sm FEDER, MURDER, INC.: Tim STORY OF THE SYNDICATE
93.
(1992).
See Ryan, supra note 34, at 337.
94. See LYMAN & POTTER, supra note 34, at 30-31.
95. See id. at 31.
96. See Manna v. United States Dep't of Justice, 51 F.3d 1158, 1161 (3d Cir. 1995); see
also John J. Goldman, 73 Alleged Mob Members Indicted in N.Y. Charges: Undercover
detective infiltrates 'the most powerful' organized crime family, the Genoveses, L.A. TIMEs,
Dec. 6, 2001, at A33, available at 2001 WL 28934623.
97. See 18 U.S.C. §§ 1951-1955 (1994).
98. See Alexander M. Parker, Note, Stretching RICO To The Limit And Beyond, 45
DUKE L.J. 819, 821 (1996).
99. 18 U.S.C. § 1951(b)(2).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
with the enactment of RICO, the Hobbs Act [was] the most frequently used
The effectiveness of the
prosecutorial weapon against organized crime."''
Hobbs Act, however, did not reach its full potential until its use as a predicate act under RICO.' 0 '
The 1950s brought the television broadcasts of the Kefauver Committee, 10 2 which interviewed over 600 witnesses regarding organized crime in
the United States.' 3 These included both federal and state law enforcement
officials as well as suspected and convicted criminals." ° While the Committee brought La Cosa Nostra back to the forefront of the American conscience and put pressure on FBI director J. Edgar Hoover to act, Senator
Kefauver's hearings, the seventeen conclusions and twenty-two recommendations 0 5 did not lead to successful law enforcement action.'1 6 While several bills were drafted which aimed towards the elimination of organized
crime, only one was enacted into law, only to be later repealed.10 7 In fact,
"[o]rganized crime has grown immensely since the days of the Kefauver
investigation."1o8
In 1963, organized crime came back into the public view through the
Senate's McClellan Committee. 0 9 The highlight of this commission came
when, for the first time, a member of one of New York's criminal families
broke "Omerta," organized crime's vaunted "code of silence." 1'0 Joseph
Valachi, a member of the Gambino Organized Crime Family, testified
about various aspects of La Cosa Nostra. Introducing the term "La Cosa
Nostra" to the American public, Valachi explained the existence of the
Commission, provided information on the hierarchical structure and geographical distribution of Italian organized crime families, and described the
100.
Timeline in OC
ENCYCLOPEDIA,
supra note 9, at xxiii.
101. See Andrew B. Dean, Note, An Offer The Teamsters Couldn't Refuse: The 1989
Consent Decree Establishing Federal Oversight And Ending Mechanisms, 100 COLUM. L.
REV. 2157, 2164-65 (2000); see also Leslie Marshall, Note, The Right To Democratic ParticipationIn Labor Unions And The Use Of The Hobbs Act To Combat Organized Crime, 17
FORDHAM URB. L.J. 189, 193-94 (1989).
102. See REPORT OF THE SENATE SPECIAL COMM. TO INVESTIGATE ORGANIZED CRIME IN
INTERSTATE COMMERCE,
103.
S. REP. No. 307, (lst Sess. (1951)).
See Jacobs, Final Chapter,supra note 4, at 133; see also LYMAN & POTTER, supra
note 34, at 27-28; Wade, supra note 35, at 372.
104. See Wade, supra note 35, at 372.
105. See id.
106. See SIFArIS, supra note 72, at 194; see also Kelly, supra note 68, at 11. Some also
claim a majority of the conclusions of the Kefauver Committee were false. See SIFAKiS,
supra note 72, at 194.
107. See Bonney, supra, note 5, at 580 n.10.
108. Bradley, supra note 3, at 227.
109. See ORGANIZED CRIME AND ILLICIT TRAFFIC IN NARCOTICS: HEARINGS BEFORE THE
PERMANENT SUBCOMM. ON INVESTIGATIONS OF THE SENATE COMM. ON GOVERNMENT OPERATIONS,
110.
88TH CONG., 80 (1st Sess. 1963).
See OC ENCYCLOPEDIA, supra note 9, at 229-30.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
well-protected initiation ritual into Mafia organizations."' 1 Despite a controversy over the content of some of Valachi's testimony,1 1 2 the McClellan
Committee made organized crime a priority for law enforcement, and
marked the beginning of Robert Kennedy's attacks on La Cosa Nostra." l3
Meanwhile, FBI director J. Edgar Hoover continued to keep the Justice
Department's G-Men out of the fight against organized crime by repeatedly
denying the existence of any such criminal organizations." 4 On November
14, 1957, however, the Apalachin Incident1 15 re-exposed the Mafia to the
public, and forced Hoover to admit the existence of the Mafia in the United
States." 6 If not for the prodding of then Attorney General Robert F. Kennedy, it is alleged that Hoover would have lapsed back into inaction.1 17
the federal government
Indeed, it was not until Hoover's death in 1972 that118
priority.
enforcement
law
a
crime
made organized
In 1967, a Presidential Task Force on Organized Crime was created to
continue the work of the Kefauver and McClellan Committees, 1 9 popularly
known as the "Katzenbach Commission" after its chairman, United States
Attorney General Nicholas Katzenbach 1 2 ' Although the productivity of
this commission was questionable, 2 ' "[b]y 1969, successive congressional
investigations had revealed the resilience, size, and diverse business interests of organized crime."1 22 Additionally, soon after the Katzenbach Com111. See LYMAN & POTER, supra note 34, at
VALACHI PAPERS (1968).
30-31; see also
PETER MAAS, THE
112. See LYMAN & POTTER, supra note 34, at 31-33.
113. It was during this time that Kennedy began his crusade against Teamsters Union
President Jimmy Hoffa. See Jacobs, Final Chapter,supra note 4, at 133; see also RONALD
GOLDFARB, PERFECT VILLAINS, IMPERFECT HEROES: ROBERT F. KENNEDY'S WAR ON ORGANIZED CRIME (1997).
See OC ENCYCLOPEDIA, supra note 9,at 158-59.
115. Local police and New York state troopers raided the home of Joseph Barbara, Sr. in
Apalachin, New York, to find a large number of high-ranking La Cosa Nostra officials gathered together. See LYMAN & POTTER, supra note 34, at 28-29. To the public, this seemed to
signify proof of the existence of a nationwide criminal conspiracy existing within the United
States. See id. The exact details, however, of the meeting and the actual significance of the
incident to the involved criminal organizations, has been the subject of controversy. See id.;
see also OC ENCYCLOPEDIA, supra note 9, at 16-17.
116. See LYMAN & POTTER, supra note 34, at 28.
117. See OC ENCYCLOPEDIA, supra note 9,159-60.
118. See Jacobs, Final Chapter,supra note 4, at 159; see also United States v. Kelly,
707 F.2d 1460, 1470 (D.C.Cir. 1983).
114.
119. PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY (1967).
120. See Douglas E.Abrams, Crime Legislation and the Public Interest: Lessons From
Civil RICO, 50 SMU L. REv. 33, 36 (1996).
121.
See Bonney, supra note 5, at 590.
122. Alexander D. Tripp, Comment, Margins of the Mob: A Comparison of Reves v.
Ernst & Young With CriminalAssociation Laws in Italy and France,20 FORDHAM INT'L L.J.
263, 278 (1996).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
mission's report to the President, the RICO statute was proposed in
Congress. 123
Law enforcement efforts prior to RICO were "sporadic" and lacked truly
rigorous exertion until the 1980s.1 24 In general, law enforcement initiatives
directed towards La Cosa Nostra resembled "culling a herd," by targeting
the weak, low-level members, which would only be replaced by more efficient gangsters.12 5 The ineffectiveness of law enforcement initiatives up to
the enactment of the OCCA was best described by the General Accounting
Office of the federal government:
[p]rior to the passage of [RICO], attacking an organized criminal group
was an awkward affair ....
Before the act, the government's efforts were
necessarily piece-meal, attacking isolated segments of the organization as
they engaged in single criminal acts. The leaders, when caught, were only
penalized for what seemed to be unimportant crimes. The larger meaning
of these crimes was lost because
the big picture could not be presented in a
126
single criminal prosecution.
Congress finally realized that such prior prosecutions of organized crime
had ineffectively focused on the individual, "rather than on organizational
'
foundations." 127
"Congress needed to distinguish organized crime from ordinary crime by statute so that organized criminal groups could be punished
more severely."1'28 With the "structure and strength of organized crime
transcend[ing] its membership," failure to attack the "enterprise criminality" allowed the ongoing success of La Cosa Nostra families, no matter how
many individual prosecutions succeeded. 129 Congress previously passed a
number of statutory initiatives primarily directed at attacking organized
crime entities, including: the Hobbs Act, 13 0 the Controlled Substances
Act,1 3 ' various conditions of the Internal Revenue Code, 132 the Bank Se123. See Abrams, supra note 120 at 35.
124. See James B. Jacobs & Alex Hortis, New York City As Organized Crime Fighter,
42 N.Y.L. SCH. L. REV. 1069, 1069 (1999).
125. See JEFFREY ROBINSON, THE MERGER: THE CONGLOMERATION OF INTERNATIONAL
ORGANIZED CRIME 42 (2000) (hereinafter MERGER].
126. G. Robert Blakely & John Robert Blakely, Civil and CriminalRICO: An Overview
of the Statute and its Operation,64 DEF. COUNS. J. 36, 42 (1997) (citing Effectiveness of the
Government's Attack on La Cosa Nostra (Gen. Accounting Office, April 14, 1988)) (alteration in original) [hereinafter Blakely II].
127. Ramona Lennea McGee, Note, Criminal RICO and Double Jeopardy Analysis in
the Wake of Grady v. Corbin: Is this RICO's Achilles' Heel?, 77 CORNELL L. REv. 687, 722
(1992).
128. Cormaney, supra note 35, at 277.
129. Id.; see also 116 CONG. REc. 585, 591 (1970).
130. See Cormaney, supra note 35, at 279.
131. Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A.
§ 801 (1970).
132. See Cormaney, supra note 35, at 279.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
crecy Act of 1970,' and the Money Laundering Control Act of 1986.'
None of these, however, have been more effective than RICO, which is "the
chief weapon used by the United States against organized crime."' 13 5 In
fact, government operations before RICO have been described as impotent.136 "Congress realized that the stereotypical view of organized crime
as consisting in a circumscribed set of illegal activities, such as gambling
and prostitution ... was no longer satisfactory." 13' 7 Both Congress and the
United States Supreme Court eventually realized that La Cosa Nostra secured power through its economic position and that any successful attack
would need to be done through its fiscal base.1 38 In response,
RICO was
139
Act.
Control
Crime
Organized
the
of
LX
enacted as Title
III.
THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT
- GENERALLY
A.
Proscriptions
Title IX makes it unlawful to engage in a variety of activities, criminal or
otherwise, which are related to the running of an enterprise." 4° In general,
Congress developed the statute while considering unlawful relations between "persons" and an "enterprise." 1 4 ' Although both terms are broadly
defined, they are separate requirements under RICO, requiring both an actor
("person"), which may also be an organization, whose unlawful actions are
in furtherance of a separate and distinct association ("enterprise").' 42
RICO's first element requires proof that the defendant committed two predicate acts in connection with the maintaining of an enterprise. 14 3 The two
predicate acts must occur within a ten year period." 4 However, the requirement does not necessitate that the defendant be convicted of such activi133. Pub. L. No. 91-508, 84 Stat. 1114 (codified at 12 U.S.C. §§ 1730(d), 1829(b),
1951-59, and 31 U.S.C. §§ 1051-62, 1081-83, 1101-05, 1121-22).
134. 18 U.S.C. §§ 1956-57 (1994); see also Introduction to HANDBOOK OF ORGANIZED
CRIME IN THE UNITED STATES 12 (Robert J.Kelly, et al. eds. 1994).
135. Cormaney, supra note 35, at 279.
136. See Gerber, supra note 16, at 984.
137. Bill Buck Chevrolet, Inc. v. GTE Florida, Inc., 54 F. Supp. 2d 1127, 1130 (M.D.
Fla. 1999).
138. See Senator John L. McClellan, The Organized Crime Act (S.30) or its Critics:
Which Threatens Civil Liberties?, 46 NOTRE DAME LAWYER. 55, 141 (1970); see also
Rusello v. United States, 464 U.S. 16, 26-29 (1983).
139. See Organized Crime Control Act of 1970, Pub. L. No. 91-452, tit. IX, §901(a) 84
Stat. 922, 941-48 (codified at 18 U.S.C. §§ 1961-1968 (1982 & Supp. IV 1986)).
140. See United States v. Tukette, 452 U.S. 576 (1981); see also 18 U.S.C. § 1961 (4)
(1994).
141.
142.
143.
144.
See
See
See
See
Liebman, supra note 10, at 127-28.
id.
18 U.S.C. § 1962 (1994).
18 U.S.C. § 1961(5) (1994).
294
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
ties, 14 ' nor are prosecutors banned from using prior convictions as predicate
acts,' 46 although they are not considered in sentencing under the United
States Sentencing Guidelines (the Guidelines). 147
Unlike prior statutes used against organized crime, RICO's proscriptions
include the mere receiving of income earned from a "pattern of racketeering" 14 1 with the "acquisition of any interest in, establishment or operation
of, any enterprise which is engaged in, or the activities which affect, interstate or foreign commerce." 1 49 This former proscription was directed at the
"'classic Mafia investment case envisioned by Congress,' where 'organized
criminals gain control of an uncorrupted business by investing profits from
gambling or other illegal activities."" 5 0 Such prosecutions are rare due to
the additional evidence required to show the gains of the predicate acts
were invested within the RICO enterprise."' Additionally, RICO makes it
unlawful for anyone to have "any interest in or control of an enterprise
which is engaged in" racketeering activity,' 52 to participate in such an enterprise, 153 or to conspire to do any of the previous.
154
The net effect of
RICO was to criminalize membership or association with an enterprise en145. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 488 (1985) (noting that "the
word 'conviction' does not appear in any relevant portion of the statute.")
146. See U.S. Sentencing Guidelines Manual § 2E1.l, Application Notes (4) (1998); see
also United States v. Persico, 832 F.2d 705 (2d Cir. 1987) (discussing how use of previous
convictions for predicate acts under RICO does not violate a defendant's double jeopardy
rights); see also United States v. Salerno, 964 F.2d 172 (2d Cir. 1992).
147. See U.S. Sentencing Guidelines Manual § 2El.1, Application Notes (4) (1998).
148. See 18 U.S.C. § 1961 (1) (1994).
149. 18 U.S.C. § 1962 (a) (1994). Regarding RICO's "interstate or foreign commerce"
requirement, see generally United States v. Robertson, 514 U.S. 669 (1995). Additionally,
the government need only prove the enterprise, and not the individual predicate acts, affected
interstate commerce. See John Panneton, Federalizing Fires: The Evolving Federal Response to Arson Related Crimes, 23 AM. CRiM. L. REv. 151, 184 (1985); United States v.
Boffa, 513 F.Supp. 444, 465 (D. Del. 1980). To satisfy this requirement, a prosecutor need
only show:
(1) the enterprise purchased, sold or distributed contraband, in interstate
commerce; (2) the enterprise used interstate facilities (interstate banking
system, telephone calls, wire transfers); (3) members or associates of the
enterprise traveled in interstate commerce, or outside the United States, to
carry out their illegal activities; or (4) the victims, such as storefronts, of the
enterprise's illegal activities were involved in interstate commerce.
Mastin, supra note 16, at 2320.
150. Bourgeois, supra note 16, at 903 (citation omitted).
151. See id. ("The limited case law, however, suggests that if a tracing requirement
exists, courts tend not to enforce it strictly.").
152. See 18 U.S.C. § 1962(b) (1994).
153. See 18 U.S.C. § 1962(c) (1994). In fact this is the most commonly used portion of
RICO, against both organized crime figures and otherwise. See Mastin, supra note 16, at
2313.
154. See 18 U.S.C. § 1962(d) (1994). For various issues regarding the RICO conspiracy, see Beck v. Prupis, 529 U.S. 494 (2000); see also Mastin, supra note 16; Gerber, supra
note 16, at 983-87.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
gaged in racketeering activities; therefore, actual participation in the criminal activity became irrelevant
for purposes of the statute. 155
Law
enforcement was now better apt to "dismantle organizations" by ways un'unrelated' crimes and
heard of before, including tying together "multiple
15 6
conspiracies" into one enterprise prosecution.
Having moved beyond "the traditional conception of organized crime,"
Congress deliberately enacted a broad tool against criminal enterprises in
order to ensnare the full spectrum of criminals operating in conjunction
with the illicit organizations.157 "Racketeering activity" was defined in
RICO to include "any act or threat involving murder, kidnapping, gambling,
arson, robbery, bribery, extortion, dealing in obscene matter," or dealing in
a controlled substance or listed chemical. 158 However, in order to fall
within RICO's scope, the predicate crimes charged must be listed in 18
U.S.C. § 1961(1).159 In fact, an attorney may be sanctioned for attempting
to include an offense not listed under section 1 in a RICO prosecution. 160
The Supreme Court in Reves v. Ernst & Young, 161 also attempted to limit
RICO by "adopt[ing] a strict textual analysis in defining the scope of conduct covered by RICO's proscriptions." 162 Regardless, use of a broad list to
define unlawful acts under RICO has resulted in prosecutions and adjudications regarding everything from tobacco litigation, 163 securities fraud
cases, 164 prosecutions of government officials 165 and anti-abortion protes155. See OC ENCYCLOPEDIA, supra note 9, at 258.
156. Mastin, supra note 16, at 2320
157. Bill Buck Chevrolet, Inc. v. GTE Florida, Inc., 54 F. Supp. 2d 1127, 1130 (1999);
see also Gerber, supra note 16, at 979.
158. 18 U.S.C. § 1961 (1994). RICO lists additional activities, including: counterfeiting; theft of interstate shipments; embezzlement from pension and welfare funds; extortionate credit transactions; fraud and related activity in connection with access devices;
transmission of gambling information; mail, wire and financial institution fraud; procuring
citizenship or naturalization; obscenity; obstruction of justice; criminal investigations; and
state or local law enforcement; tampering with, or retaliating against a witness, victim or an
informant; and a host of other unlawful activities. See id.
159. See Albarran v. Peoples Gas Light and Coke Co., 1990 WL 141465, at *2 (N.D.Ill.
Sept. 21, 1990).
160. See Segarra v. Messina, 153 F.R.D. 22 (N.D.N.Y. 1994).
161. 507 U.S. 170 (1993).
162. Taurie M. Zeitzer, Note, In Central Bank's Wake, RICO's Voice Resonates: Are
Civil Aiding and Abetting Claims Still Tenable?, 29 COLUM. J.L. & Soc. PROBS. 551, 568
(1996).
163. See Sandra L. Gravanti, Note, Tobacco Litigation: United States Versus Big Tobacco - An Unfiltered Attack on the Industry, 52 FLA. L. REV. 671, 680 (2000).
164. Sedima, S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482, 488 (2d Cir. 1984).
165. See generally United States v. Stratton, 649 F.2d 1066 (5th Cir. 1981) (prosecuting
a judge for conspiracy); United States v. Long, 651 F.2d 239 (4th Cir. 1981), cert. denied,
454 U.S. 896 (1981) (prosecuting a congressman for violation and conspiracy to violate
RICO).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
ters,' 66 to "simple lease agreement[s]"' 167 and divorce actions. 168 While
these actions have been upheld, RICO's failure to require an "organized
by creating their own "litcrime connection" caused many states to respond
1 69
constraint.
a
such
with
tle" or "baby" RICO's
The Supreme Court attempted to limit RICO by holding that "[o]ne must
participate in the operation or management of the enterprise itself in order
to be subject to . . . liability."' 17 ° RICO actions against all members connected with La Cosa Nostra remain safe, however, as the Court stated that
those "lower rung participants" and non-members of the enterprise are not
free from prosecution under RICO because the "operation or management"
test is inclusive of those "'associated with' the enterprise." 171 Under such
holdings, the Act remains powerful enough to capture the elusive Godfather
while at the same time "the RICO net is woven tightly to trap even the
Meanwhile, one of the largest complaints lodged
smallest fish . . ."'.
against RICO is its use against parties without any connection to organized
crime whatsoever.17 3 In applying RICO, courts and commentators alike repeatedly contend with two concepts - pattern and enterprise.
B.
Pattern
In an effort to limit the use of RICO, Congress included a requirement
that the commission of the predicate acts be performed in what could be
considered a "pattern of racketeering activity. "174 The Supreme Court interpreted Congress' intent by finding that RICO was designed to combat
organized crime, not isolated activity.' 7 5 In Sedima, S.P.RL. v. Imrex Co.,
the Court stated that in order to constitute a RICO "pattern," the predicate
acts must have "continuity plus relationship."' 176 The Court later held that
to prove both the relationship and the continuity, the prosecution must show
166. See generally National Organization for Women v. Schneidler, 510 U.S. 249
(1994) (involving a conspiracy to shutdown abortion clinics through racketeering activity).
167. Gerber, supra note 16, at 997.
168. See generally Erin Alexander, Comment, The Honeymoon is Definitely Over: The
Use of Civil RICO in Divorce, 37 SAN DIEGO L. REV. 541 (2000).
169. See Edward M. Wise, RICO And Its Analogues: Some Comparative Considerations, 27 SYRACUSE J. INT'L L. & COM. 303, 303 (2000); see also Gerber, supra note 16, at
981-82.
170. Reves v. Ernst & Young, 507 U.S. 170, 170 (1993) (citing to the synopsis).
171. See id. at 184.
172. United States v. Elliott, 571 F.2d 880, 903 (5th Cir. 1978).
173. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 500-01 (1985) (Marshall, J.,
dissenting); see also THE RICO RACKET (SAMUEL A. ALrro ed. 1989); Lynch I, supra note
17, at 661.
174. 18 U.S.C. § 1962(a) (1994).
175. See Sedima, 473 U.S. at 496 n.14.
176. Id.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
the predicate acts (1) "are related, and ... [(2)] amount to or pose a threat of
continued criminal activity." 177
To prove "relationship," the government must show that the predicate
acts were somehow connected to one another. 78 This may be done by
showing "similar purpose, results, participants, victims, methods or com'
To prove
mission and other interrelated distinguishing characteristics." 179
"continuity," the prosecution must show "a series of related predicates extending over a substantial period of time" or an open-ended threat of continued racketeering activity in the future. 80 In cases involving organized
crime members, proving the existence of the La Cosa Nostra family itself
went a long way in establishing a connection between any two predicate
acts. 181
C.
Enterprise
RICO's emphasis on the enterprise distinguishes it from prior statutory
weapons against organized crime. 82 This new focus was created not only
to change the criminal law propensity to notice only the individual, 8 3 but
by structuring the statute in this manner, Congress was able to avoid any
constitutional questions regarding criminalizing membership in an organi177. H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989). For a
discussion of circuit courts interpretations of the Supreme Court's pattern rulings, see Bourgeois, supra note 16, at 887-92.
178. See generally H.J., Inc., 492 U.S. at 239-43.
179. Sedima, 473 U.S. at 496 n.14; see also 18 U.S.C. § 3575(e) (1982), repealed by
Sentencing Reform Act of 1984, Pub. L. No. 98-473, §§ 212(a)(1)-(2), 98 Stat. 1837 (1987)
(Under federal law, "criminal conduct forms a pattern if it embraces criminal acts that have
the same or similar purposes, results, participants, victims, or methods of commission, or
otherwise are interrelated by distinguishing characteristics.").
180. H.J., Inc., 492 U.S. at 242. For a more in-depth discussion on the pattern requirement, including the relationship and continuity elements, and a six question analysis, see
Blakely II, supra note 126, at 39.
181. See United States v. Castellano, 610 F. Supp. 1359, 1379 (D.C.N.Y. 1985) ("most
of the enterprise members charged operated as a stereotypical organized crime group, engaging in the conventional variety of illegal activities, with the added role of serving in effect as
a death squad. This is 'pattern' enough to satisfy the statute; indeed, it is the pattern that
most influenced Congress' decision to adopt RICO.").
In some cases both the relatedness and the continuity necessary to show a
RICO pattern may be proven through the nature of the RICO enterprise. For
example, two racketeering acts that are not directly related to each other
may nevertheless be related indirectly because each is related to the RICO
enterprise .... if the racketeering acts were performed at the behest of an
organized crime group, that fact would tend to belie any notion that the
racketeering acts were sporadic or isolated.
United States v. Angiulo, 897 F.2d 1169, 1180 (1st Cir. 1990) (citing United States v. Indelicato, 865 F.2d 1370, 1383-84 (2d Cir. 1989)).
182. See 18 U.S.C. §§ 1961-64 (1994); see also Jacobs, Final Chapter, supra note 4, at
169-70; Blakely I, supra note 69, at 874.
183. See supra Part H.B.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
zation per se.' 8 4 RICO punishes group behavior more severely than indi185
vidual behavior and is therefore a "status offense" by its very nature.
This result is justified in that "the crime committed by an enterprise, like
the crime of conspiracy, is worthy of greater punishment because collective
a greater risk to society than individual
action toward an illegal end poses
1 86
end."'
same
the
action toward
RICO defines an enterprise as: "any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals
associated in fact although not a legal entity."18' 7 A RICO enterprise is one
that exhibits "continuity, unity, shared purpose and identifiable structure,"'1 88 as well as being "distinct from the pattern of racketeering activity
that is identified in the charge."18' 9 In United States v. Turkette,'9 ° the Supreme Court held that RICO included both legitimate and illegitimate enterprises,"' claiming that "insulating the wholly criminal enterprise from
prosecution under RICO is the more incongruous position." ' 92
193
Due to congressional intent levied directly against organized crime,
and the "association in fact" clause as interpreted in Turkette,194 prosecutors
have easily included organized crime entities within RICO's enterprise concept. Additionally, evidence introduced to prove the "pattern" requirement
may also prove the "enterprise" prong, and vice versa.' 9 5 In cases involving La Cosa Nostra, courts have classified "crews,"' 19 6 "groups," 197 com184. See David M. Ludwick, Note, Restricting RICO: Narrowing the Scope of Enterprise, 2 CORNELL J.L. & PUB. POL'Y 381, 387 (1993). One of the original proposals for
RICO did include a provision criminalizing membership within La Cosa Nostra, but this was
rejected in the final drafting. See Organized Crime Control Act of 1970, § 30, 91st Cong.,
2d Sess., in 116 CONG REC H 35343 (Oct. 7, 1970) (amendment proposed by Representative
Biaggi). This was most likely due to the original failure of Senator McClellan's proposed
bill directly criminalizing membership in the Mafia. See Hearings on S.2187 Before the
Subcomm. On Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 89th
Cong., 2d Sess. 29 (1966).
185. See Gerber, supra note 16, at 1003.
186. Id.
187. 18 U.S.C. § 1961(4) (1994).
188. United States v. Perholtz, 842 F.2d 343, 362 (D.C. Cir. 1988).
189. Bourgeois, supra note 16, at 892-93.
190. 452 U.S. 576 (1981).
191. See generally United States v. Turkette, 452 U.S. 576 (1981).
192. Id. at 587.
193. In Russello v. United States, the U.S. Supreme Court stated that RICO's legislative
history "clearly demonstrates that . .. (RICO] was intended to provide new weapons of
unprecedented scope for an assault upon organized crime." 464 U.S. 16, 26 (1983); see also
Madel, supra note 16, at 1134; Bourgeois, supra note 16, at 886.
194. 452 U.S. 576 (1981); see also 18 U.S.C. § 1961(4) (1994).
195. See United States v. Indelicato, 865 F.2d 1370, 1383-84 (2d Cir. 1989).
196. See United States v. Castellano, 610 F. Supp. 1359, 1378-79 (D.C.N.Y. 1985)
(describing the Gambino Family crew led by Roy De Meo, under Gambino Family boss Paul
Castellano).
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
299
missions of mob leaders, 198 organized crime families, 199 and the entire La
Cosa Nostra syndicate, as falling within the RICO "associations in fact"
clause. 2° Following the reasoning from the Supreme Court's decision in
Turkette, °1 courts have established organized crime families as being
with a "common
criminals "associated for a common business purpose,"
' 202
activities.
illegal
certain
from
profiting
interest in
The reasoning behind such broad holdings, as well as the tremendous
success enjoyed by government prosecutors and civil plaintiffs in RICO
actions, has been due to the "liberal construction clause. ' 20 3 Despite criticisms of this section, 2° the liberal construction clause has been supported
through congressional intent and affirmed by the Supreme Court.20 5 Emphasizing its "remedial purposes," the Court demanded a broad reading of
RICO in order to "encompass a wide range of criminal activity. '' 20 6 Indeed,
the Supreme Court has noted that RICO is the only substantive federal law
containing such a demand20 7 that is in fact a "mandate. 20 8
IV.
A.
CRIMINAL
RICO
Criminal RICO Generally - 18 U.S.C. § 1963
The criminal penalties for violating 18 U.S.C. § 1962 are set out in section 1963.2 0 Citing RICO's statement of findings, the Supreme Court in
Turkette reinforced that RICO was enacted to eradicate organized crime
197. See United States v. Local 560, Int'l Bhd. of Teamsters, 581 F. Supp. 279, 282
(D.N.J. 1984) (describing the Provenzano group).
198. See United States v. Salerno, 868 F.2d 524, 534-35 (2d Cir. 1989) (describing "The
Commission").
199. See United States v. Locascio, 6 F.3d 924, 929 (2d Cir. 1993) (describing the Gambino Crime Family); United States v. Persico, 832 F.2d 705, 707-08 (2d Cir. 1987) (describing the Colombo Crime Family); United States v. Ruggiero, 726. F.2d 913, 923 (2d Cir.
1984) (describing the Bonanno Crime Family); and United States v. Gigante, 982 F. Supp.
140 (E.D.N.Y. 1997) (describing the Genovese Crime Family).
200. See generally Gigante, 982 F. Supp. at 140.
201. 452 U.S. 576, 583 (1981).
202. Castellano, 610 F. Supp. at 1379.
203. 18 U.S.C. § 1961 (2000) (quoting Pub. L. § 91-453 which provides that "(a) the
provisions of this title ... shall be liberally construed to effectuate its remedial purpose.").
204. See generally, Neil Feldman, Spiraling Out of Control: Ramifications of Reading
RICO Broadly, 65 DEF. CouNs. J. 116 (1998).
205. See, e.g., United States v. Turkette, 452 U.S. 576 (1981); see also Reves v. Ernst &
Young, 507 U.S. 170 (1993); H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 248- 49
(1989); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 489 (1985).
206. H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. at 248; see also David Kurzweil,
Note, Criminal and Civil RICO: Traditional Canons of Statutory Interpretationand the Liberal Construction Clause, 30 COLUM. J.L. & Soc. PROBs. 41 (1996).
207. See Russello v. United States, 464 U.S. 16, 21 (1983).
208. See Lou v. Belzberg, 834 F.2d 730, 737 (9th Cir. 1987) (quoting Sedima S.P.R.L.
v. Imrex, Inc., 473 U.S. 479, 492 n.10, cert. denied, 405 U.S. 993 (1988)).
209. 18 U.S.C. § 1963 (1994).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
through stronger legal tools, more prohibitions aimed specifically at organized crime, and harsher penalties.2 1 0 Offenders may be sentenced for up to
twenty years, unless the included predicate acts could have resulted in a life
sentence, which in such cases life imprisonment would be appropriate.2 1
In the context of organized crime prosecutions, however, a recommendation
to ignore the Sentencing Guidelines2 1 2 is often made because of the heinous
nature of the offense and the danger to the community posed by such defendants.2 1 3 In contrast, some commentators still believe that the "stability"
afforded by the Guidelines has, in fact, enhanced federal prosecutions of
organized crime figures. 214 Either way, the Guidelines include the presence
of organized crime elements in a prosecution as grounds for an upward
departure.21 5
RICO's criminal sanctions also provide for forfeiture of "any interest the
person has acquired or maintained in violation of section 1962, ''216 as well
as any "interest in,' '1 17 "security of, ' '2 1 "claim against, ' 'z 9 or "property or
contractual right of any kind affording a source of influence over,"'22 any
Prosecutors
criminal enterprise the violator has been associated with. 2
may also place a restraining order or injunction upon such property before
filing an indictment or information, 222 essentially "freezing" the defendant's assets.2 23 However, this may be accomplished only after a showing
that the prosecution is likely to be successful in proving their case and "that
failure to enter the order will result in the property being destroyed, re210.
211.
212.
See Turkette, 452 U.S. at 589.
See 18 U.S.C. § 1963 (a) (1994).
See United States v. Sessa, 821 F. Supp. 870, 875 (E.D.N.Y. 1993).
The Guidelines are of little assistance in these cases. They focus myopically
on mechanical aspects of the offenses. Their formulaic scheme fails to account for the overall picture of these defendants developed during three trials and in three thorough and exhaustive presentence reports. These
criminals must be punished in the proper context of their lives and their
overall actions, not in the vacuum of 'units,' 'offense levels' and 'adjustments' created by the Guidelines.
Id.
213. See id. at 876.
214. See Jeffries, supra note 47, at 1118-24. But cf Walker, supra note 80 (refuting
arguments).
215. See United States v. Rainone, 32 F.3d 1203, 1208-09 (7th Cir. 1994), cert. denied,
510 U.S. 1130 (1995).
216. 18 U.S.C. § 1963(a)(1) (1994).
217. 18 U.S.C. § 1963(a)(2)(A) (1994).
218. 18 U.S.C. § 1963(a)(2)(B) (1994).
219. 18 U.S.C. § 1963(a)(2)(C) (1994).
220. 18 U.S.C. § 1963(a)(2)(D).
221. See 18 U.S.C. § 1963(a)(2).
222. See 18 U.S.C. § 1963(d)(1).
223. See LYMAN & POTTER, supra note 34, at 484.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
moved from the jurisdiction of the court, or otherwise made unavailable for
forfeiture." 22 4
B.
Criminal RICO Specifically - The Family Cases
The intent behind criminal RICO was to resolve an inherent problem in
earlier law enforcement strategies. 22 ' Before RICO the nature of both state
and federal criminal law was to define prosecutable offenses as specific
criminal acts.22 6 Combined with the nature of organized crime itself, in
which bosses or dons can hide from prosecution by having "lower-level
members . ..carry[ing] out the majority of crimes," traditional criminal
laws resulted in "the management [being] insulated from detection and
prosecution. 22 7 Congress corrected this problem by enacting RICO to hold
these once "untouchable" criminals responsible for the acts of their
subordinates.2 28
Since the development of RICO, "[tihere have been dozens of major
criminal trials of Cosa Nostra bosses.., and more than a thousand prosecuwith practically every one brought under RICO.23 0 However,
tions,
none were more important or had a larger impact than the Family Cases of
the 1980s.
1. The Family Cases
The Family Cases of the 1980s began with the Federal Bureau of Investigation's launching of Operation GENUS.231 Operation GENUS combined
the forces of federal, state, and local agencies, including: the FBI, New
York City detectives and officers, assistant U.S. attorneys, and the New
York State Organized Crime Task Force. Together, these agencies set up
224.
225.
226.
227.
48 U.S.C. §1963(D)(1)(B)(i) (1994).
See Turkette, 452 U.S. at 589.
See LYMAN & POTTER, supra note 34, at 482.
Id.; see also Jeffries, supra note 47, at 1103
One characteristic of organized crime is that the most culpable and dangerous individuals rarely do the dirty work. Although the organization's leaders
are ultimately responsible for its crimes, they typically deal through intermediaries and limit their own participation to behind-the-scenes control
and guidance. Consequently, their guilt usually cannot be proved by the
testimony of victims or eyewitnesses or by forensic evidence and they never
confess.
Jeffries, supra note 47, at 1104.
228. See LYMAN & POTTER, supra note 34, at 482; see also Mastin, supra note 16, at
2307.
229. Jacobs, Final Chapter,supra note 4, at 131.
230. See id. at 170.
231. See JACOBS, US v. COSA NOSTRA, supra note 10, at 80; see also Jacobs, Final
Chapter,supra note 4, at 163.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
teams to investigate each of the Five Families.2 3 2 Each division of the operation was charged with "detailing a family's 'table of organization,"' which
included the membership and status of family members,2 3 3 as well as the
"structure, hierarchy, and activities of each of the crime families."2'34 This
intense effort produced tangible data about organized crime in New York
City in a manner that had never been so "thoroughly and systematically
collected, assembled, and analyzed. 2 3 5
Much of this information allowed law enforcement to obtain multiple
court-authorized bugs and wiretaps which provided additional evidence.2 36
Overall, Operation GENUS created a mass of details which "convinced
some mobsters that conviction was certain and that making a cooperation
'
deal with prosecutors was the only way to avoid a long prison term."237
As
a result of this combined effort, all of New York's Five Families suffered
severe losses at the hands of prosecutors wielding RICO charges.2 38 The
government indicted the leaders of each family for "participat[ing] in the
affairs of an enterprise (their mob family) through a pattern of racketeering
activity.
239
In United States v. Persico,24 the leadership of the Colombo Organized
Crime Family was successfully prosecuted and incarcerated under RICO.2 4 '
The defendants included: Carmine Persico, 242 Gennaro Langellan, 243 Al24 5
phonse Persico, 2 4" Anthony Scarpati, John DeRoss, and Andrew Russo.
The defendants were charged with "leading, managing and participating in
the Colombo Family racketeering enterprise, a professional criminal organization that is one of the New York City constituent units of the American
Mafia, by committing or agreeing to commit numerous crimes. 2 46
The government charged the defendants with predicate acts which included extortion and bribery in the construction and restaurant industries,
bribery of IRS agents and federal prison officials, loansharking, distribution
of narcotics, and the collection of unlawful debts.24 7 Additionally, all but
232.
233.
234.
235.
236.
237.
238.
239.
240.
241.
242.
243.
244.
245.
246.
247.
See JACOBS, US v. COSA NOSTRA, supra note 10, at 80.
Jacobs, Final Chapter, supra note 4, at 163.
JACOBS, US v. COSA NOSTRsA, supra note 10, at 80.
Id at 81.
See id. at 80.
Jacobs, Final Chapter, supra note 4, at 163.
See JACOBS, US v. COSA NOSTRA, supra note 10 at 81, 91 n.4.,
Id. at 81; see also 18 U.S.C. § 1961(5).
832 F.2d 705 (2d Cir. 1987).
See United States v. Persico, 832 F.2d 705, 707 (2d Cir. 1987).
The boss of the Colombo Family. See id. at 708.
The underboss. See id.
The boss's son and a "made" member of the family. See id.
All captains in the Colombo Family. See id.
Persico, 832 F.2d at 707-08.
See id. at 708.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
one of the defendants were convicted for substantive RICO counts and all
were convicted of maintaining a RICO conspiracy.2 48
Due to the fact that John Gotti was the primary target, the prosecution of
the leadership of the Gambino Organized Crime Family had a substantial
effect upon law enforcement and the public. 249 After the death of Paul Castellano, Gotti assumed leadership over the Gambino Family. 25 ° Gotti was
the "mob boss who, in the public mind, had come to symbolize the power
and persistence of organized crime."'25 ' Known as "The Dapper Don" due
to his "movie star" attitude, 25 2 Gotti had also been labeled as "The Teflon
Don," "against whom criminal charges simply could not be made to
stick. ' 253 It is this flamboyance, not seen since Al Capone,2 54 and the illusion of invincibility that made Gotti's eventual conviction and sentence of
life without parole such an enormous topic.
In fact, "[t]he initial indictment charged John Gotti (boss), Frank Locascio (consigliere), Salvatore Gravano (underboss) and Thomas Gambino
(capo) with thirteen counts of racketeering, murder, illegal gambling, loansharking, and obstruction of justice. 2 5 5 In a move that turned out to be
extraordinarily successful, the prosecution was able to disqualify Gotti's
long-time attorney Bruce Cutler, labeled as "house counsel" for the Gambino Organized Crime Family, from defending his client.25 6 In an even
more surprising development, the underboss, "Sammy the Bull" Gravano,
turned on his former boss and provided "especially damaging" testimony
for the government. 257 "Gravano did the arithmetic on the charges against
him and the possible outcomes: If he cooperated with prosecutors, he
would eventually be released; if not, a RICO conviction (which was likely)
was a death sentence in that he would be incarcerated for the rest of his
248.
See id. at 707.
249.
See Rod Nordland, The 'Velcro Don': Wiseguys Finish Last, NEWSWEEK, Apr. 13,
1992, at 34, available at LEXIS, News Library, Newsweek File.
250. United States v. Locascio, 6 F.3d 924, 929 (2d Cir. 1993).
251. See JACOBS, US V. COSA NOSTRA, supra note 10, at 211.
252.
See SIFAKiS, supra note 72, at 161.
253.
Id. at 162.
254.
See id. at 161.
255. JACOBS, US v. COSA NOS'RA, supra note 10, at 213; see also United States v.
Locascio, 6 F.3d 924, 929 (2d Cir. 1993).
256. See United States v. Gotti, 771 F. Supp. 552, 553 (E.D.N.Y. 1991), aff'd by 6 F.3d
924 (2d Cir. 1993). Additional defense attorneys Gerald Schargel and John Pollock were
disqualified as well. See id. at 553.
257.
at 213.
See Locascio, 6 F.3d at 930; see also JACOBS, US
V.
COSA NOSTRA, supra note 10,
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
life. ' '25 8 As a result, the "Teflon Don" was no more and Gotti was convicted and sentenced to life in prison.2 59
In addition to incarcerating organized crime figures for up to and including life sentences, 260 "lengthy prison terms under RICO constitutes a threat
26
that has been effectively used to gain the cooperation of defendants." '
Underbosses, such as Gravano, and acting bosses, including Alphonse
D'Arco of the Lucchese Family and Carmine Sessa of the Colombo Family,
have done "the arithmetic" and have testified for prosecutors. 2 62 The former boss of the Cleveland La Cosa Nostra family, Angelo Lonardo, testified in numerous organized crime prosecutions, providing a mass of
information for prosecutors, including information on the alleged ruling
council of La Cosa Nostra.2 63
The history of the Bonanno Organized Crime Family is replete with internal strife and confusion as to the recognized leadership within the family. 2 ' From the banishment of its leader, Joseph Bonanno, and the eventual
civil war which followed,26 5 to the execution of then boss Carmine "The
Cigar" Galante,26 6 the position of boss in the Bonanno Organized Crime
Family has been precarious. 267 Following this strife and the inevitable public notoriety, the Bonanno Organized Crime Family and many in its leadership positions were specifically cited in RICO's legislative history.2 68
The Bonanno Family was also the target of the greatest undercover operation against La Cosa Nostra known today. Federal Bureau of Investigation
agent Joseph Pistone, an undercover FBI agent known as Donnie Brasco,
infiltrated the family for six years, and was removed right before becoming
initiated as a "made" member.26 9 Pistone's testimony resulted in over 100
258. OC ENCYCLOPEDIA, supra note 9, at 259. Ironically, after leaving the federal Witness Protection Program in 1997, Gravano, along with wife and daughter, were arrested for
controlling a Phoenix, Arizona based drug ring. See Mob Hitman Turned Snitch Held For
Involvement With Drug Ring, CHICAGO TRIBUNE, Feb. 25, 2000, available at LEXIS, News
Library, Chicago Tribune File.
259. See generally United States v. Gotti, 771 F. Supp. 552 (E.D.N.Y. 1991).
260. See JACOBS, US v. CosA NosTRA, supra note 10, at 86.
261. OC ENCYCLOPEDIA, supra note 9, at 258; see also Finckenauer, supra note 11.
262. See United States v. Bellomo, 176 F.3d 580, 586 (2d Cir. 1999).
263. See Block, supra note 11, at 40.
264. See United States v. Ruggiero, 726 F.2d 913, 916-18 (2d Cir. 1984).
265. The Civil War with the Bonanno Organized Crime Family was heavily depicted by
the media and became known as "the Banana War." See OC ENCYCLOPEDIA, supra note 9,
at 34.
266. See id. at 35.
267. See generally Ruggiero, 726 F.2d at 917.
268. See 116 CONG.REc. 18913, 18940 (1970) (remarks of Sen. McClellan); S.REP. No.
617, 91st Cong., 1st Sess. ("Senate Report") 38, 42 (1969).
269. See Ruggiero, 726 F.2d at 916-19; see also OC ENCYCLOPEDIA, supra note 9, at
241.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
convictions of organized crime figures and ultimately a $500,000 murder
contract was placed against him.2 7 °
After the execution of then Bonanno boss Carmine "The Cigar" Galante,27 1 and the subsequent installation of Phillip Rastelli as boss,272 the
government launched one of its largest actions against the Bonanno Organized Crime Family in lieu of its inclusion within the famed "Commission
Case. ' 27 3 In United States v. Rastelli,274 the government charged the defendants with operating and managing the Bonanno Organized Crime Family through a pattern of racketeering. 275 Rastelli and sixteen other
individuals, were charged with racketeering within the moving and storage
industry "including conspiracy to violate RICO, extortion, bid rigging, receiving illegal employer payoffs, receiving unlawful payments to influence
operation of employee benefit fund, mail fraud, perjury, obstruction of justice, and arson. 2 76 The convictions of all defendants who appealed were
upheld.27 7
The Commission Case
2.
United States v. Salerno 27 8 was an attempt to "dismantle the structure [of
La Cosa Nostra] that has been used since the beginning of organized crime
in the United States. ' 279 Brought in the Southern District of New York,
Salerno has been proclaimed "the apex of the family cases. "280 Salerno,
more commonly referred to as the "Commission Case," or as the "Five
Families Case, ' at one point indicted all five bosses of New York City's
five families, and named more La Cosa Nostra leaders than had ever been
brought together in one trial.2 82 In fact, Salerno has been called the "most
important organized crime case in U.S. history. '"283
270. See OC
WOODLEY,
look at
271.
272.
273.
274.
MY
ENCYCLOPEDIA,
UNDERCOVER
supra note 9, at 241; see also JOSEPH PISTONE
LIFE
IN THE MAIA:
& RICHARD
DoNm BRAsco (1987) (For a detailed
Pistone's undercover life with the Bonanno Organized Crime Family (and others)).
See Salerno, 868 F.2d at 529; see also discussion infra Part IV.B.2.
See Ruggiero, 726 F.2d at 916.
See Salerno, 868 F.2d at 528; see also discussion infra Part IV.B.2.
870 F.2d 822 (2d Cir. 1989).
275.
See Rastelli, 870 F.2d at 826.
276.
Id.
277.
See id.
278.
279.
868 F.2d 524 (2d Cir. 1989).
Salerno, 868 F.2d at 528.
280.
JACOBS,
US v.
COSA
NOSTRA, supra note 10, at 81 (internal quotations omitted).
281. See Rastelli v. Warden, Metropolitan Correctional Center, 610 F. Supp. 961, 979
(D.C.N.Y. 1985).
282. See JACOBS, US v. COSA NOSTRA, supra note 10, at 81.
283. GoTHAM, supra note 17, at 93.
CRIMINAL AND CIVIL CONFINEMENT_ [.Vol. 28:279
However, before the suit was brought to trial, Gambino Family boss Paul
Castellano was assassinated.2 84 Although the Bonanno Organized Crime
Family had no official representative on the Commission,2 85 Phillip Rastelli, then acting boss, was originally included but was subsequently severed
from the case as he was being prosecuted on other charges.2 86 In the end,
the case named: Anthony "Fat Tony" Salerno, 287 Anthony Corallo, 288 Sal29 1 Gennaro
vatore Santoro, 289 Christopher Furnari, 290 Carmine 29Persico,
29 2 Anthony Indelicato, 293 and Ralph Scopo. 4
Langello,
Under RICO, the prosecution was able to target the so-called "Commission" of La Cosa Nostra leaders, rather than just a collection of individuals
or even a distinct crime family. The court defined the Commission as "a
nationwide criminal society which operates through local organizations
known as 'families.' "295 The Salerno indictment contended that due to the
existence of this criminal enterprise, the defendants "engage[ ] in or aid[ ]
and abet[ ] authorization of murders, narcotics trafficking, loansharking,
and infiltration of labor unions," while maintaining a reputation of violence
in furtherance of these activities.29 6
Knowledge of the Commission was initially released to the public
through the autobiography of the Bonanno Crime Family boss, Joseph
Bonanno, Sr. 2 9 7 Bonanno even made public appearances to promote his
book, including a spot on "60 Minutes. 2 98 However, he was later held in
contempt for refusing to testify in this case.2 99 The book also led then U.S.
284. See Salerno, 868 F.2d at 528.
285. Due to "internal instability," from the late 1970s to 1985, "the Bonanno family was
denied a seat on the Commission." See Salerno, 868 F.2d at 528; see also United States v.
Ruggiero, 726 F.2d 913, 916-17 (2d Cir. 1984).
286. See Salerno, 868 F.2d at 528. Additionally, Gambino Family underboss Aniello
Dellocroce and Bonanno Family consigliere Stefano Canone were also originally included,
however both died of natural causes before trial. See id. at 529.
287. Boss of the Genovese Crime Family. See id. at 527-28.
288. Boss of the Lucchese Family. See id.
289. Underboss of the Lucchese Family. See id.
290. Consigliere of the Lucchese Family. See id.
291. Boss of the Colombo Family. See Salerno, 868 F.2d at 527-28.
292. Underboss of the Colombo Family. See id.
293. Member of the Bonanno Crime Family. See id.
294. Member of the Colombo Family and the president and business manager of the
District Council of Cement and Concrete Workers, Laborers International Union of North
America. See id.
295.
Id. at 528.
296.
JACOBS, US v. COSA NOSTRA, supra note 10, at 82.
297.
JOSEPH BONANNO,
A MAN OF HONOR: THE AUTOBIOGRAPHY OF JOE BONANNO
(1983); see also JACOBS, US v. COSA NOSTRA, supra note 10, at 79.
298. See United States v. Salerno, 868 F.2d 524, 536 (2d Cir. 1989).
299. See United States v. Salerno, 632 F. Supp. 529, 531 (S.D.N.Y. 1986); see also
United States v. Salerno, 642 F. Supp. 967 (S.D.N.Y. 1986).
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
Attorney for the Southern District of New York, Rudolph Giuliani, to proclaim: "[i]f Bonanno can write about a Commission, I can indict it.' ' 3 °°
The theory behind the prosecution's allegations was that "the Cosa Nostra Commission constituted a criminal enterprise; that each defendant was a
member or functionary of the commission; and that each defendant had
committed two or more racketeering acts in furtherance of the commission's goals."30 1 To prove its case, the government "sought to place the
defendants within the history of Cosa Nostra. 3 °2 Taking "advantage of the
requirement under RICO that it prove the existence of an organization in
fact, ' 30 3 the prosecution introduced evidence from the alleged beginning of
the Commission in 1931304 after the Castellammarese War, to the "Concrete Club" and current Mafia "Board of Directors" under indictment.3" 5
The jury was presented with La Cosa Nostra's long history, including information on some of the Commission's former members and activities.30 6
Much of this was done through the testimony of the former boss of the
Cleveland La Cosa Nostra family, Angelo Lombardo, undercover FBI agent
Joseph Pistone,30 7 and several state troopers who were involved in the infamous Apalachin incident.30 8 Courts consistently allow such expert testimony, especially to explain the operation, structure, membership, and
terminology of La Cosa Nostra families.30 9
Through extensive evidence established at trial, the prosecution lead the
jury to infer that the Commission's major purposes and historical functions
were to:
[Riegulate and facilitate the relationships... [among the Italian criminal
syndicate].... promote and coordinate joint ventures of a criminal nature,
... resolve disputes among the families, ... [including leadership clashes
within individual families, most often involving] extend[ing] formal rec-
300. JACOBS, U.S. v. COSA NOSTRA supra note 10, at 80 (quoting Rudolph Giuliani).
301. Id. at 81.
302. Id. at 79.
303. Id. at 83.
304. See United States v. Salerno, 632 F. Supp. 529, 530 (S.D.N.Y. 1986).
305. United States v. Salerno, 868 F.2d 524 (2d Cir. 1989).
306. See JACOBS, US v. COSA NOSTRA, supra note 10, at 82.
307. See Salerno, 868 F.2d at 528.
308. See JACOBS, US v. COSA NOSTRA, supra note 10, at 83.
309. See, e.g., United States v. Skowronski, 968 F.2d 242 (2d Cir. 1992); United States
v. Tutino, 883 F.2d 1125 (2d Cir.1989), cert. denied, 493 U.S. 1081 (1990); United States v.
Angiulo, 847 F.2d 956 (1st Cir. 1998), cert. denied, 488 U.S. 852 (1988); United States v.
Ardito, 782 F.2d 358 (2d Cir. 1982), cert. denied, 475 U.S. 1141 (1986); United States v.
Daly, 842 F.2d 1380 (2d Cir. 1988), cert. denied, 488 U.S. 821 (1988); United States v.
Gambino, 818 F. Supp. 536 (E.D.N.Y. 1993).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
ognition to 'bosses,' [approving new members, and establishing the rules
3 10
governing La Cosa Nostra.]
All defendants were charged with substantive RICO violations3 ' and
RICO conspiracy counts, 31 2 which revolved around three general "Commission schemes."3 3 The first 'scheme' has been labeled the "Concrete
Club,"3' 14 or simply the "Club. 31 5 The Club was an illegal arrangement
among the Commission, several concrete companies, and the District Council of Cement and Concrete Workers, Laborers International Union of North
America.3 16 Through threats and acts of violence 3 7 and the "preclusion
from or diminished opportunity for some existing or potentially economic
benefit,"3 8 the Commission extorted a "tribute" of two percent of the total
contract price for all concrete jobs within New York City worth more than
two million dollars.3 19 In return for such tribute, the Commission awarded
construction jobs to the participating companies, and "guaranteed" labor
peace. 32 ° Much of this was made possible by defendant Scopo's control
over the respective labor unions. 321 The result of the Club upon the industry was a fifteen percent rise in the cost of construction in New York.32 2
324
All of the defendants 323 were convicted on numerous extortion counts
310. Salerno, 868 F.2d at 528. For a detailed analysis of the functions of the Commission, see JACOBS, US v. COSA NosTA, supra note 10, at 96-97 (Appendix A, Salerno
Indictment).
311. See 18 U.S.C. § 1962(c) (1982).
312. See 18 U.S.C. § 1962(d) (1982); see also Salerno, 868 F.2d at 527.
313. Salerno, 868 F.2d at 529.
314.
See JACOBS, US v. CosA NosTA, supra note 10, at 82.
315. See Salerno, 868 F.2d at 529.
316. See id.
317. See id. at 531. The Court reasserted the notion that knowledge of an extorter's
membership with a violent organization (e.g. La Cosa Nostra) is sufficient for the instillation
of fear requirement of an extortion charge. See id. (citing Carbo v. United States, 314 F.2d
718, 740-41 (9th Cir. 1963)).
318. Id. at 531. The court noted examples of concrete companies having to "pa[y] a
penalty," and of being forced out of the concrete business, in addition to the threats of labor
unrest and disruption of concrete supplies. See id.
319. Id. at 530-31. This does not mean that those contracts under two million dollars
were left untouched by La Cosa Nostra, rather these were left to individual families to extract extra profits. See United States v. Persico, 832 F.2d 705, 708 (2d Cir. 1987). Defendant Persico unsuccessfully attempted to thwart his Commission Case conviction on double
jeopardy grounds arising from this similar case. See United States v. Salerno, 964 F.2d 172,
173 (2d Cir. 1992).
320. See Salerno, 868 F.2d at 530-31.
321. See id. at 530.
322. See New York v. Julius Nasso Concrete Corp., 202 F.3d 82, 85 (2d Cir. 2000).
323. All defendants, except Indelicato, were convicted. See Salerno, 868 F.2d at 530.
324. See id.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
requirement of RICO)3 25 in connec(which also satisfied the predicate acts
32 6
tion with the Concrete Club scheme.
The second scheme involved a loansharking 327 operation on Staten Island.3 28 In this scenario, a member of the Lucchese Organized Crime Family was acting without the permission of the Gambino Organized Crime
Family in part of their "territory. 32 9 In order to facilitate the operation,
two of the defendants intervened with the Gambino Family and resolved the
conflict to the mutual satisfaction of all, a resolution which included a continuing report of the loanshark's activities within Gambino territory. 330 The
court reasoned that even if the evidence was insufficient to show an active
participation in the physical loansharking activity, it was adequate to establish a conspiracy, with defendants Corallo and Santoro as active co-conspirators. 3 The court held that the evidence was sufficient to "establish the
required nexus or connection between [defendant's] dispute-resolving activity ... and the Commission enterprise. '"332 The evidence proved the defendant's actions "(1) constituted aiding and abetting of loansharking, and (2)
furthered the goals of the commission as an enterprise. 3 33
The final Commission scheme resulted in the murders of then Bonanno
Family boss Carmine Galante and associates Guiseppe Turano and Leonard
Coppola. 33 4 This endeavor was shown to be an attempt by the Commission
to end the internal disputes within the Bonanno Family between Galante
and Rastelli. 3 35 Although only defendant Indelicato was charged with the
murders as predicate acts, 3 3 6 the prosecution sought to prove a connection
between the murders and the functions of the Commission.3 3 7 The court
reiterated two tests which may be used to establish a connection to a RICO
enterprise: either the defendant "'is enabled to commit the predicate of325. See 18 U.S.C. § 1961 (1994).
326. See Salerno, 868 F.2d at 530.
327. Loansharking or usury is "the lending of money at a rate of interest that exceeds the
legal limits." OC ENCYCLOPEDIA, supra note 9, at 192-93. Loansharking is often associated
with gambling and collection methods involving violence, or the threat of. See id.
328. See Salerno, 868 F.2d at 529.
329. See id.
330. See id. at 529, 532.
331. See id.
332. Id. at 532.
333. JACOBS, US v. COSA NOSTRA, supra note 10, at 84.
334. See Salerno, 868 F.2d at 529.
335. See id. at 529, 541-42.
336. Id. at 533. Additionally, in a separate appeal by Indelicato, the same court ruled
that the three simultaneous murders could satisfy the "pattern of racketeering activity" required by 18 U.S.C. § 1962 (c) (1994). United States v. Indelicato, 865 F.2d 1370 (2d Cir.
1989). But cf Salerno, 868 F.2d at 546 (Bright, J. dissenting) (citing Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 496 n.14 (1985)) (discussing "continuity plus relationship" test for
pattern requirement).
337. See Salerno, 868 F.2d at 533.
CRIMINAL AND-CIVIL CONFINEMENT
[Vol. 28:279
fenses solely by virtue of his position in the enterprise or involvement in or
control over the affairs of the enterprise,"' or "'the predicate offenses are
related to the activities of that enterprise.' "338 Through various pieces of
evidence, the government connected the Galante murders with the Commission's dispute resolution and leadership recognition functions.3 39 In fact,
evidence showed that the Bonanno Crime Family retained "autonomous
control for the first time in a decade" after the Commission had sanctioned
the murder of Galante and recognized Philip Rastelli as the Bonanno Family boss. 340 Therefore, the court upheld the jury's determination that the
murders "occurred 'in the conduct of [the Commission's] affairs' within the
meaning of 18 U.S.C. §1962(c) .. 341
The key to the government's successful prosecution of all of the defendants was its ability to tie the actions of the individuals to the RICO enterprise in question-the Commission. Through the establishment of
"substantial evidence" 342 the government convinced the jury that "the
nexus of all of these acts is the continuous existence both of the Commission and of its goals and means and methods of attainment of those
goals. 3 43 This was accomplished through evidence of the Commission's
historical functions. The Concrete Club was shown to be operated by the
Commission within its regulation and facilitation of relationships between
families, and more specifically the "promot[ion] and coordinat[ion of] joint
ventures of a criminal nature. ' 3" 4 The protection of the Lucchese Family's
loansharking activities illustrated the Commission's dispute resolution activity.3 45 And finally, the Galante murder was an execution of the Commissions dispute resolving mechanisms regarding leadership clashes, in
addition to its formal recognition of a "boss" power.34 6
In the end, the government imposed convictions upon all of the defendants due to the established proof that "each defendant to a greater or lesser
degree was not only aware of the existence of the Commission but also
associated himself with it with more than a general knowledge of its multifaceted activities, although no defendant is alleged to have participated in
all of them. ' 347 By connecting the actions of the individuals to the func338.
339.
340.
341.
342.
343.
344.
345.
346.
347.
Id. (citing United States v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980)).
See id. at 533.
See JACOBS, US v. COSA NOSTRA, supra note 10, at 84.
Salerno, 868 F.2d at 533 (alteration in original).
See id. at 528.
United States v. Salerno, 1986 WL 1450, at *1 (S.D.N.Y. Jan. 30, 1986).
United States v. Salerno, 868 F.2d 524, 528 (2d Cir. 1989).
See id. at 532.
See id. at 533-34.
Salerno, 1986 WL 1450, at *1.
Summer, 2002]
: CIVIL RICO VERSUS CRIMINAL RICO
311
tions of the Commission as a whole, the government brought about some of
the largest and most successful criminal RICO convictions.3 48
All of the defendants were convicted after an eleven-week jury trial.34 9
All charges were affirmed on appeal, except for Indelicato's substantive
RICO charges. 350 Each defendant (excluding Indelicato) 351 was sentenced
to a total of one hundred years imprisonment. 35" Although the appellate
court noted that such sentences held a "symbolic quality, ' 35 3 it did not find
the harsh sentences to be unconstitutional, mechanistic, or uniform in its
application. 354 Two of the defendants received the maximum criminal fines
allowed under RICO,3 55 with the combined criminal fines imposed for all
defendants surpassing $1,700,000, not including the assessed costs of prosecution.3 56 In the end, the judge, jury, and appellate court concluded that
357
being a La Cosa Nostra boss was a crime which merited life imprison.
In Salerno, the court allowed for an even broader form of liability, holding any member of the Commission responsible for any of its actions as a
whole. Therefore, leaders "would face expansive RICO liability simply for
their status in organized crime," and were no longer insulated through the
acts of their inferiors. 35 8 In fact, commentators have stated that the Commission Case and the Family Cases in general used RICO to convict "mobsters simply for being mobsters ...
V.
A.
CiVIL RICO
Civil RICO Generally - 18 U.S.C. § 1964
Unlike the criminal side of RICO which, although admittedly more powerful than its predecessors, allows for incarceration or forfeiture, the civil
end of RICO allows prosecutors and judges to develop creative solutions
for law enforcement predicaments that prior legislative was unable to solve.
By focusing on a remedial cure, rather than simply punitive, civil RICO
more closely relates to the particular problems created by organized crime.
Civil RICO allows judges and prosecutors to devise remedies perhaps more
348. See JACOBS, US v. COSA NOSTRA, supra note 10, at 90-91.
349. See United States v. Salerno, 868 F.2d 524, 527 (2d Cir. 1989).
350. See id. at 543.
351. See id.
352. See id.
353. Id.
354. See id.
355. See Salerno, 868 F.2d at 528; see also 18 U.S.C. § 1963 (1994).
356. See Salerno, 868 F.2d at 528.
supra note 10, at 79.
357.
See JACOBS,
358.
359.
Id.; see also Salerno, 868 F.2d at 545 (Bright, J., dissenting).
See JACOBS, US v. COSA NOSTRA, supra note 10, at 90; see also JIMMY
US v. COSA NOSTRA,
GURULE,
COMPLEX CRIMINAL LITIGATION: PROSECUTING DRUG ENTERPRISES AND ORGANIZED CRIME
(2000) (providing a detailed look at the use of RICO in "complex" criminal prosecutions).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
suitable than mere incarceration or forfeiture. Courts may order divesting
the defendant of any direct or indirect interest in an enterprise, imposing
restrictions upon further activities, creating due provisions for innocent victims.16 ° The most extreme remedy allows for the dissolving or reorganizing
of the enterprise. 6 Civil RICO also allows for a private individual, "injured in his business or property by reason of a violation of section 1962,"
to sue and recover treble damages.3 6 2 This section, however, has never
been used against organized crime, 363 and in1
inpracticality may never be. 36
For much of the same reasoning, criminal forfeiture is rarely successful
against such defendants.3 65 Despite what some courts have suggested,
RICO is not primarily a criminal and punitive statute, rather it is, or should
36 6
be, a predominantly civil and remedial tool.
B.
The Union Cases
1. In General
"Labor, like Israel, has many sorrows." 367 Unions are "by origin and
nature
. . .
voluntary organization[s ...
which are] susceptible to the mali-
cious machinations of others, as Congress perceived in enacting the .. .
RICO Act[ ].,368 "The Racketeer Influenced and Corrupt Organization Act
was enacted primarily, although not exclusively, to halt organized crime's
incursion into legitimate organizations" 369 such as labor unions. Congress
specifically recognized the "threat to the American economic system" that
organized crime infiltration would have on unions.37 °
360. See 18 U.S.C. § 1964(a) (1994).
361. See id.
362. 18 U.S.C. § 1964(c) (1994).
363. See Jacobs, FinalChapter,supra note 4, at 169; see also Sedima S.P.R.L., 473 U.S.
at 499.
364. See Gerald E. Lynch, A Conceptual, Practical,and Political Guide to RICO Reform, 43 VAND. L. REV. 769, 798 n.62 (1990) ("Practically, however, the cause of action is
unlikely to be of widespread utility: mobsters who commit violent crimes do not make ideal
defendants in personal injury lawsuits-they usually lack respect for law, attachable assets,
and liability insurance.").
365. See Russello v. United States, 464 U.S. 16, 24 (1983) (noting one major problem
with using criminal forfeiture against organized crime is they generally have "rarely ...
identifiable assets" which are "usually ...distributed immediately.").
366. See Blakely I, supra note 126, at 38.
367. United States v. Local 560, Int'l Bhd of Teamsters, 581 F. Supp. 279, 282 (D.N.J.
1984) (quoting John L. Lewis, former president of the Congress of Industrial Organizations
and the United Mine Workers), aff'd, 780 F.2d 267 (3d Cir. 1985).
368. See United States v. Local 560, Int'l Bhd of Teamsters, 581 F. Supp. 279, 282
(D.N.J. 1984).
369. Id. at 328; see also S. REP.No. 91-617, at 80 (1969).
370. Criminal Law and Procedures Subcommittee of the Senate Judiciary Committee,
115 CONG. REc. 5874 (1969) (testimony of Sen. John L. McClellan, Chairman).
Summer, 20021
CIVIL RICO VERSUS CRIMINAL RICO
"There have been numerous legislative attempts to control labor racketeering at both the state and federal levels." 3 7 ' Included within these are the
Labor-Management Reporting and Disclosure Act (LMRDA),3 7 2 the Hobbs
Act,3 73 the Taft-Hartley Act,374 acts detailing the fiduciary responsibility of
labor organization officers,37 5 and prohibitions against theft and embezzlement from employee benefit plans.376 RICO, however, was established to
compensate for specific failures inherent within these statutes, mainly the
"difficulty in demonstrating the nature and specific elements of the alleged
illegal activity in the context of ongoing syndicated or organized crime."3'77
RICO incorporates the notion that racketeering includes multiple crimes,
relating to the "infiltration, domination, and use of a union for personal
benefit .... 378 Under Civil RICO's "reorganization" clause,37 9 prosecutors and judges can purge organized crime influence from unions which
were, much like the Godfathers who ultimately decided their fate, "untouchable" before RICO.38 ° The most common method of "reorganizing"
under civil RICO is to establish a trusteeship for "an appropriate period of
time,'381 in order to create a new leadership free from corrupting influences. 38 2 Ideally, reorganization under RICO returns the organization's
control to its law-abiding members.3 83 Trustees have been granted "wideto instill discipliranging investigative powers," and some with the power
384
nary actions, creating a "powerful and effective tool.
The FBI has stated that the so called "Big Four," which consists of International Longshoreman's Association (ILA), the Hotel Employees and Restaurant Employees International Union, the International Brotherhood of
Teamsters (IBT), and the Laborers International Union of North America,
371. Local 560, 581 F. Supp. at 328.
372. See 29 U.S.C. § 411 (1959).
373. See 18 U.S.C. § 1951 (1946).
374. See 29 U.S.C. § 186 (1947).
375. See 29 U.S.C. § 501 (1959).
376. See 18 U.S.C. § 664 (1962).
377. Local 560, 581 F. Supp. at 328.
378. Id. (citing Blakey & Goldstock, 'On the Waterfront': RICO and Labor Racketeering, 17 AM. CrMi. L. REV. 341, 367 (1980)).
379. See 18 U.S.C. § 1964 (c) (1994).
380. See GOTHAM,supra note 17.
381. Local 560, 581 F. Supp. at 337, affm'd, 780 F.2d 267 (3d Cir. 1985), cert. denied,
476 U.S. 1140 (1986).
382. See Jacobs, Final Chapter, supra note 4, at 171; see also, United States v. Local
560, Int'l Bhd. of Teamsters, 780 F.2d 267 (3d Cir. 1985); United States v. Local 30, United
Slate, Tile & Composition Roofers Ass'n, 686 F. Supp. 1139, 1171 (E.D. Pa. 1988) (granting
a preliminary injunction), afftd, 871 F.2d 401 (3d Cir. 1989); United States v. Bonanno
Organized Crime Family, 683 F. Supp. 1411, 1453-54 (E.D.N.Y. 1988) (issuing a consent
judgment involving Teamsters Local 814); Liebman, supra note 10.
383. See Liebman, supra note 10, at 133.
384. GOTHAM, supra note 17, at 225.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
"substantially influenced and/or controlled by organized crime."3 85 Additionally, the New York State Organized Crime Task Force has noted "[a]
significant percentage of the City's construction unions . .. are strongly
influenced or even controlled by racketeers connected to Cosa Nostra organized crime families."3'86 One example of the damage caused by such
infiltration is the "mob tax" which passed on to the industry to support
organized crime, such as the hundreds of millions of dollars siphoned from
the waste hauling industry alone.3 87 Because of the power of RICO actions,
many of the cases brought by the government against organized crime
members and corrupted industries have been resolved through negotiated
consent decrees, often involving court-appointed trustees to oversee the imposed reforms.38 8
Often it is a combination of crime families, rather than an individual family, which has infiltrated and corrupted a legitimate business.38 9 In 1990,
the government instituted an action involving both the Gambino and Genovese Families concerning their control over the ILA and therefore, the entire
New York and New Jersey waterfront.39 ° In fact, the families' influence
ran down to Miami, Florida. 391 The goyernment successfully enjoined the
defendants from any activity on the waterfront, from any contact, directly or
indirectly, with this union or any other, and from having contact with any
members of La Cosa Nostra. 39 2 Additionally, the government recovered "a
disgorgement of the proceeds of any violations of the civil RICO
statute.
393
The government has "seriously disrupted" La Cosa Nostra's influence in
many unions across the country using civil RICO actions.394 In United
States v. Hotel Employees and Restaurant Employees, Intern. Union,395 a
consent decree was issued which ended twenty-five years of organized
crime domination over a union.3 96 The Colombo Organized Crime Family
was effectively removed from the Cement and Concrete Workers Union,39 7
385. Marshall, supra note 101, at 216 n.l1.
386. FINAL REPORT, supra note 26, at 275.
387. See Finckenauer, supra note 11.
388. See Jacobs, Final Chapter, supra note 4, at 171.
389. See United States v. Sessa, 821 F. Supp. 870, 872 (E.D.N.Y. 1993); see also Morelle, supra note 26, at 1235-37.
390. See United States v. Local 1804-1, Intern. Longshoremen's Ass'n, 812 F. Supp.
1303, 1308 (S.D.N.Y. 1989).
391. See Jacobs, Final Chapter, supra note 4, at 140.
392. See Local 1804-1, 812 F. Supp. at 1308.
393. Id.
394. See Jacobs, Final Chapter, supra note 4, at 171.
395. 974 F. Supp. 411 (D.N.J. 1997).
396. See id. at 412.
397. See generally United States v. Local 6A, Cement and Concrete Workers, 663 F.
Supp. 192 (S.D.N.Y. 1986).
Summer, 20021
CIVIL RICO VERSUS CRIMINAL RICO
and the Bonanno Crime Family's influence over the Teamsters was also
reduced.3 98 A combined domination over the Long Island waste-hauling
cartel by the Gambino and Lucchese Crime Families was dispelled by a
1992 government initiated civil RICO action.3 99 While this is only a small
number of the many suits initiated by the government against infiltrated
unions, the first is still considered the most influential government action
against a corrupted union.' °
2.
United States v. Local 560 (IBT)
United States v. Local 560, InternationalBrotherhoodof Teamsters 4' is
considered "the most important civil labor racketeering case ever brought
by the Justice Department against a union local." 2 The trial lasted from
January 25, 1983 to May 17, 1983, and included nearly 8,000 pages of trial
transcript.4 0 3 The presiding Justice, Judge Ackerman, eloquently stated in
his opinion:
[i]t is not a pretty story. Beneath the relatively sterile language of a dry
legal opinion is a harrowing tale of how evil men, sponsored by and part
of organized criminal elements, infiltrated and ultimately captured Local
560 of the International Brotherhood of Teamsters, one of the largest local
unions in the largest union in this country. This group of gangsters, aided
and abetted by their relatives and sycophants, engaged in a multifaceted
orgy of criminal activity." °
Part of Judge Ackerman's distaste with the situation surrounding Local 560
was the fact that a number of the defendants, mainly those who held highlevel positions of authority within the union, had previous RICO and other
convictions, 40 5 including those regarding prior labor violations. 4 6 Additionally, despite widespread knowledge of the intense corruption that infiltrated Local 560, no internal action was ever taken to rid the union of such
practices.40 7 Indeed, statements were made regarding a "patently false and
clearly unconvincing" belief that nothing could be done to end the
corruption.40
8
398. See generally United States v. The Bonanno Organized Crime Family, 683 F. Supp
1411 (E.D.N.Y. 1988).
399. See generally United States v. Private Sanitation Indus. Assoc. of Nassau/Suffolk,
Inc., 793 F. Supp. 1114 (E.D.N.Y. 1992).
400. See JACOBS, US v. COSA NOSTRA, supra note 10, at 31.
401. 581 F. Supp. 279 (D.N.J. 1984).
402. JACOBS, US v. COSA NOSTRA, supra note 10, at 31.
403. See Local 560, 581 F. Supp. at 287.
404. Id. at 282.
405. See id. at 289-92.
406. See id. at 320.
407. See id. at 320-21.
408. Id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
The government alleged that Local 560 of the International Brotherhood
of Teamsters ("Local 560") had become a "captive labor organization" 4 9
mainly due to Anthony and Salvatore Provenzano, with help from, among
others, Joseph Sheridan, Josephine Provenzano, J.W. Dildine, Stanley
Jaronko, Thomas Reynolds, Sr., and Michael Sciarra.4 10 The government
alleged that the IBT was under the control of the "Provenzano Group," led
by another defendant, Anthony Provenzano, and charged all the defendants
with substantive RICO violations as well as RICO conspiracy charges. 4 '
The government successfully proved that the Provenzano Group, in addition to the captive union, was a sufficient RICO enterprise under 18 U.S.C.
§ 1962,412 which had exploited Local 560 for the previous thirty years.4 13
Specifically, the government charged "the Provenzano Group . . . [with]
extorting members' rights to vote, speak, and assemble" freely by systematic acts of intimidation.4" 4 Predicate acts included "organized gambling,
hijacking, extortion, and the infiltration and exploitation of a labor organization through murder, intimidation, fraud and corruption."' 415 In fact, the
Provenzano Group's use of violence for intimidation continued during the
course of the trial.416
Evidence produced at trial proved that the leader of this group, defendant
Anthony Provenzano, was a "made-member" of the Genovese Organized
Crime Family, and his smaller "enterprise" was merely a sub-group in that
409. Local 560, 581 F. Supp. at 283 (D.N.J. 1984).
410. See id.
411. See id.
412. See id. at 304.
413. See id. at 321.
414. Local 560, 780 F.2d at 272 (3d Cir. 1985).
415. Local 560, 581 F. Supp. at 318. In fact, the predicate acts affirmed by the appellate
court included:
(1) the extortion of $17,000 from ... (Dorn Transport, Inc. of Rensselaer,
New York[ )), in return for 'labor peace'; (2) the wrongful conversion by
defendant Anthony Provenzano, aided and abetted by successive defendant
members of the Local 560 Executive Board, of approximately $223,785 in
Local 560 funds 'by means of false and fraudulent pretenses, representations, and promises, and pursuant to a scheme and artifice to defraud... ;'
(3) the wrongful receipt by Provenzano Group members of payments, loans
and other things of value from certain employers... in exchange for 'labor
peace'; (4) the unlawful receipt by defendant Anthony Provenzano, aided
and abetted by Salvatore Briguglio, of certain fees, kickbacks, gifts or things
of value in the form of certain Florida real estate because of, and with intent
to be influenced with respect to, his actions and decisions relating to the
Benefit Fund; and (5) the wrongful receipt by defendant Nunzio
Provenzano, together with Irving Cotler and others, as associates of the
Provenzano Group, of 'labor peace' payments by certain employer ....
Local 560, 780 F.2d at 272-74.
,416. See Local 560, 581 F. Supp. 279, 320.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
family's hierarchy.4" 7 Additionally, evidence adduced further control of
the union by the Genovese Family.4" 8 The indictment specifically charged
the defendants with "aid[ing] and abet[ing] .. . past and present members of
the Executive Board ... unlawfully acquir[ing] and maintain[ing], directly
and indirectly, an interest in and control of the Local 560 Enterprise through
a pattern of racketeering activity in violation of § 1962(b) of the RICO
Act."4 1 9 Succinctly put, the government charged the defendants with controlling the Local 560 with the "end of infiltrating, dominating and exploiting" that enterprise.42 °
The Court made a detailed listing of twenty-eight specific acts by the
defendants which led to a "climate of intimidation" within the union and
allowed them to exert full control over Local 560.421 The defendants were
charged with engaging in a number of offenses traditionally found in
maligned unions, such as the pilfering of welfare and pension funds, accepting kickbacks, appointment of members to high paying positions (often
with no observable duties - known as "ghost" or "no-show" jobs), as well
as a host of other offenses.42 2
During the initial stage of this "unprecedented case, 4 2 3 the court approved a consent order between the parties in which a number of the members of the Provenzano Group were permanently enjoined from any further
relations with this union 424 or to act in any such capacity that would "dominate, control, or otherwise influence the affairs of any labor organization or
any employee benefit plan .... 425 In explaining his reasoning for granting
the multiple injunctions, Judge Ackerman discussed the history of incarceration of union leadership and the continuing control of Local 560 by Genovese Family associates despite multiple prosecutions of the leadership of
the group over a twenty-two year period.42 6 Without the injunctions, the
court reasoned that the Provenzano Group's "criminal business' as usual"
would reoccur within the union. 427 The court realized that criminal sanctions were insufficient to end the control of the Genovese Family over Local 560, and stated: "[t]his victimization has taken the form of multiple
417. See id. at 304.
418. See id. at 305-06.
419. Id. at 283-84.
420. Id. at 286.
421. Id. at 284-85.
422. See Local 560, 581 F. Supp. 279, 304-11 (D.N.J. 1984); see also Finckenauer,
supra note 11; GOTHAM, supra note 17, at 106-07 (discussing the traditional benefits taken
by La Cosa Nostra from infiltration of a union).
423. Local 560, 581 F.Supp. at 282.
424. See Local 560, 780 F.2d at 272.
425. Id.
426. See Local 560, 581 F. Supp. at 319 (D.N.J. 1984).
427. Id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
violations of 18 U.S.C. § 1962, and these violations are likely to reoccur as
long as Local 560 remains a captive labor organization. '"428
The court concluded that the defendants had "conspired to participate in
the conduct of the affairs of the Provenzano Group Enterprise through a
pattern of racketeering activity. '4 29 This Group, "which in essence is a
carefully structured and well disciplined conspiracy,"4 3 had agreed to "acquire and maintain control of the Local 560 Enterprise through a pattern of
racketeering activity."43 Local 560, including its benefit funds and severance pay plan, was also found to be an enterprise under the definition of a
criminal enterprise for RICO purposes.43 2 However, because the individual
offenses were done in order to promote the Provenzano Group, and not the
labor union itself, the court dismissed the union as a defendant, except in a
"nominal" manner to effectuate the remedies necessary to free Local 560 of
the organized crime infestation that had occurred.43 3
In bold fashion, Judge Ackerman stated "[r]acketeering is the cancer that
almost destroyed the American trade-union movement,"4'34 and decided "to
use a judicial scalpel to excise this malignancy from this union and its
members. '43 5 In doing so, the court listed twenty-three separate reasons to
enforce an injunction enjoining Salvatore Provenzano from any activity
within Local 560.436 Injunctions were also imposed against Anthony
Provenzano, Nunzio Provenzano, Stephen Andretta and Gabriel Briguglio,
barring them from participating in the IBT in any capacity. 43 7 All known
"aiders and abettors" to the Provenzano Group were additionally enjoined
43 8
from union participation.
In an unprecedented move,4 39 Judge Ackerman removed the entire Executive Board of Local 560, citing mainly their refusal "to evaluate objective"
the criminal conduct of fellow officers or business agents, or to institute
prophylactic measures to ensure as much as possible that past criminal conduct will not be repeated."" 0 In its place, the judge implanted a trustee "to
administer the Local during a curative period of appropriate length," until
such time as a "carefully supervised election" could be had "to restore
428. Id.
429. Id. at 318.
430. Id. at 336.
431. Id. at 318.
432. See Local 560, 581 F. Supp. at 335.
433. See id. at 337.
434. Id. at 283 (citing David Dubinsky, former President of the International Ladies
Garment Workers Union) (alteration in original).
435. Id.
436. See id. at 321-24.
437. See Local 560, 581 F. Supp. at 283.
438. See id. at 335.
439. See id. at 326.
440. Id. at 321.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
union democracy within Local 560. "441 The trustees imposed in union
cases, like the one in Local 560, are usually former prosecutors or federal
judges who bring "a day-to-day government presence into the heart of corrupt organizations. '"442
Judge Ackerman reasoned that this move was necessary to effectively
dispel the existing atmosphere of intimidation within Local 560, to restore
union democracy, and to ensure (to the extent possible) that racketeers do
not obtain positions of trust within the Local."" 3 The goal, in the court's
opinion, was to contravene and avoid future "irreparable harm to the membership of Local 560, its contract employers, and the public."' 4 Judge
Ackerman also ruled that this period of trusteeship would be followed by a
supervised general election," when the court determines "sufficient political
freedom has been restored" (through the advice of the assigned trustee)
within the union.4 4 5
3.
United States v. Cappetto
Besides incarcerating family members and purging legitimate businesses
from the control of organized crime elements, law enforcement can do more
to effectively, and truly, dismantle La Cosa Nostra in America. With creative use of civil RICO, especially the reorganization and dissolution
clauses, 46 prosecutors can enjoin organized crime enterprises, ranging from
"crews" to entire "families,"" 7 from participating in illegal activities. 448
In United States v. Cappetto,4
9
the government sought and received an
injunction against a gambling enterprise, imposing a restriction upon the
actual running of the illicit activity itself.450 Included within the injunctions was a divestiture of interest from the building where the enterprise
was run, requirements of disclosure concerning information related to the
running of the enterprise, and numerous future conditions imposed upon the
members of the enterprise.4 5 1
The court also upheld and supported the government's ability to enforce
civil injunctions against criminal activities. 4 2 The Supreme Court later
441.
Id.
442.
Jacobs, Final Chapter, supra note 4, at 171.
443.
444.
445.
Local 560, 581 F. Supp. at 326.
Id. at 337.
Id. at 326.
446.
447.
448.
449.
450.
451.
452.
See 18 U.S.C. § 1961(1).
See 18 U.S.C. § 1962(d) (1994).
See 18 U.S.C § 1964.
502 F.2d 1351 (7th Cir. 1974).
See id. at 1355.
See id.
See id. at 1356; see also In re Debs, 158 U.S. 564, 599 (1895) ("the jurisdiction of
courts to interfere in such matters by injunction is one recognized from ancient times and by
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
agreed, stating: "As a general proposition, however, the civil remedies
could be useful in eradicating organized crime from the social fabric,
453
whether the enterprise be ostensibly legitimate or admittedly criminal.
In fact, the government could potentially bring both criminal and civil actions against a party. 4 54 The Cappetto Court determined that civil injunctive relief against criminally culpable behavior is appropriate when "a
preponderance of the evidence shows a likelihood that the defendants will
commit wrongful acts in the future, a likelihood which is frequently established by inferences drawn from past conduct."4'55 With RICO's predicate
act and pattern of racketeering requirements, "past conduct" is almost certain to be established, making civil injunctions more readily applicable.
Cases such as Cappetto show the potential of looking beyond traditional
criminal remedies and devising strategies which "effectively superimpos[e]
the civil realm of law atop the criminal realm.
V.
'456
THE AFTERMATH
On November 19, 1986, after the ruling in Salerno, Prosecutor Rudolph
Giuliani stated: "'[t]he verdict reached today has resulted in dismantling the
ruling council of La Cosa Nostra.""" The future Mayor of New York City
also declared: "'the mafia is a dying organization and will cease to be a
major threat within ten years.' "458 Giuliani was not the only one confident
in the long-term results of the Commission Case. The presiding judge,
while condemning the defendants during sentencing, admitted the punishment imposed was "fashioned to speak to" future crime bosses.4 59
In a subsequent prosecution of Vincent "The Chin" Gigante, 460 it was
found that Gigante had been the actual boss of the Genovese Organized
Crime Family at the time of Salerno.4 6 ' Facts also revealed that except for
the day-to-day operations of the Genovese Organized Crime Family, the
actions of the Commission occurred only with the permission of Gigante,
who was never named in the action. 462 The true boss was alleged to have
indubitable authority; ... such jurisdiction is not ousted by the fact that the obstructions are
accompanied by or consist of acts in themselves violations of the criminal law.").
453. United States v. Turkette, 452 U.S. 576, 585 (1981).
454. See Cappetto, 502 F.2d at 1357.
455. Id. at 1358.
456.
457.
458.
Mastin, supra note 16, at 2310.
US v. COSA NosTRA, supra note 10, at 86, (quoting Rudolph Giuliani).
Joseph E. Bauerschmidt, Note, "Mother of Mercy - Is This The End of RICO?" JACOBS,
Justice Scalia Invites Constitutional Void-for- Vagueness Challenge to RICO "Pattern," 65
NOTRE DAME L. REv. 1106, 1162 (1990) (citing Rudolph Guiliani in N.Y. TIMEs, Mar. 3,
1987, at
459.
460.
461.
462.
B3 col. 2).
Id.
See United States v. Gigante, 982 F. Supp. 140 (E.D.N.Y. 1997).
See id. at 145; see also GoTHAM,supra note 17, at 9.
See Gigante, 982 F. Supp. at 151.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
continued to control the "Commission of mob leaders coordinating mafia
activities" even after the 100-year sentences were imposed upon the other
previous members.4 63
Subsequent investigations and prosecutions of organized crime figures
have provided information of continued cooperation and joint criminal efforts between families. 4" Although some have claimed that the Commission "reputedly has ceased to function, 4 65 given the condensed area where
the Five Families engage in the same rackets and illegitimate industries (as
well as legitimate) and the rarity of interfamily violence, it stands to reason
46 6
that even after Salerno, some form of the Mafia "Board of Directors"
4 68
continues to exist4 67 and facilitate the functions described in Salerno.
In May of 1996, a reputed boss of the Colombo Organized Crime Family
plead guilty to defrauding a Swiss and New Jersey based company out of
1.2 million dollars.4 69 In 1999, the Bonanno, Colombo, and Genovese Organized Crime Families were all found to be involved in multiple stock
manipulation scams worth millions of dollars.470 In June of 1999, members
of the Bonanno and Gambino Organized Crime families were indicted for
the largest securities fraud case in United States history.47 1 On September
6, 2000, several members of the Lucchese Organized Crime Family were
charged with siphoning millions of dollars from New York's construction
industry. 4 72 On December 5, 2001, seventy-three members of the Genovese
La Cosa Nostra family were arrested for racketeering activity accounting
463. Id. at 145.
464. See id. at 151; see also United States v. McGowan, 58 F.3d 8, 10 (2d Cir. 1995)
("The Windows Trial," concerning a joint La Cosa Nostra infiltration of the window manufacturing and installation industry).
465.
GOTHAM, supra note 17, at 232.
466. See United States v. Salerno, 868 F.2d 524 (2d Cir. 1989).
467. See Jacobs, Final Chapter,supra note 4, at 137.
468. See Salerno, 868 F.2d at 528.
469. See Alleged Organized Crime Boss Pleads Guilty to Defrauding Swiss Company,
AGENCE FRANCE-PRESSE, May 17, 1996, available at 1996 WL 3855746.
470. See Kit R. Roane, The Mob Goes Downtown: A Stock Scam Shakes Wall Street,
While Investigators Say There's More to Come, 128 U.S. NEWS & WORLD REPORT, No. 25,
June 26, 2000 availableat LEXIS, News Library, US News & World Report File; see also
Humberto Cruz, More Cases Expected In Fraud Investigation, SUN-SENTINEL FT. LAUDERDALE, June 16, 2000, available at 2000 WL 22179653; HealthTech Head Guilty of Racke-
teering, NATIONAL POST, May 12, 1999, available at 1999 WL 17663685; Greg B. Smith,
Mob Muscles In On Market: Mafia-Run Stock Market Scams More Widespread Than Officials Thought, NEW YORK DAILY NEWS, Sept. 10, 2000, available at LEXIS, News Library,
New York Daily News File.
471. See Phyllis Plitch & Colleen Debaise, Heard on the Street: Latest Fraud Case
Shows Mob's Move Into Wall Street - Large Number of Defendants Raises Eyebrows in
Industry, THE WALL STREET JOURNAL EUROPE, June 16, 2000, availableat 2000 WL-WSJE
21064124.
472. See Michael Ellison, New York Arrests Signal Resurgence of Mafia, THE GUARDIAN, September 8, 2000, available at LEXIS, News Library, The Guardian File.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
for over $14 million in illicit revenue, as well as uncovering information on
potential future criminal activities of the family.4 73 The "Gold Club" case
involving members of the Gambino Family as well as the continuing exploits of ex-Gambino Family member Salvatore Gravano 47 1 are in the news
daily,4 75 laying credence to the statement that "[i]n the United States, mob
developments continue to make front-page headlines."4'76
Until such events are no longer prevalent, proof of the involvement of an
organized crime family will likely continue to satisfy RICO's pattern requirement. These facts seem to show a continuing relationship of organized
crime families in New York City rather than isolated incidents or random
criminality. The statement of findings prefacing the Organized Crime Control Act outlaying the detriments of organized crime on society4 77 are as
relevant today as they were before the enactment of RICO.4 78 Some have
questioned the overall effectiveness of law enforcement initiatives aimed at
combating organized crime, including RICO.47 9 It seems that rather than
declaring victory over the Mafia, La Cosa Nostra "'isn't dead by a long
473. See Robert F. Worth, Indictments Name 73 Linked to the Genovese Crime Family,
N.Y. TIMES, Dec. 6, 2001, at D6, available at LEXIS, News Library, NY Times File.
474. Alan Feuer, Gravano and Son Plead Guilty To Running Ecstasy Drug Ring, NY
TIMES, May 26, 2001, available at LEXIS, News Library, NY Times File.
475. See David Firestone, Top Defendants in Strip-Club Trial Strike Deal, NY Times,
Aug. 3, 2001, available at LEXIS, News Library, NY Times File.
476. Milhaupt, supra note 51, at 42.
477. See Turkette, 452 U.S. at 588-89.
The Congress finds that (1) organized crime in the United States is a highly
sophisticated, diversified, and widespread activity that annually drains billions of dollars from America's economy by unlawful conduct and the illegal use of force, fraud, and corruption; (2) organized crime derives a major
portion of its power through money obtained from such illegal endeavors as
syndicated gambling, loan sharking, the theft and fencing of property, the
importation and distribution of narcotics and other dangerous drugs, and
other forms of social exploitation; (3) this money and power are increasingly used to infiltrate and corrupt legitimate business and labor unions and
to subvert and corrupt our democratic processes; (4) organized crime activities in the United States weaken the stability of the Nation's economic system, harm innocent investors and competing organizations, interfere with
free competition, seriously burden interstate and foreign commerce, threaten
the domestic security, and undermine the general welfare of the Nation and
its citizens; and (5) organized crime continues to grow because of defects in
the evidence-gathering process of the law inhibiting the development of the
legally admissible evidence necessary to bring criminal and other sanctions
or remedies to bear on the unlawful activities of those engaged in organized
crime and because the sanctions and remedies available to the Government
are unnecessarily limited in scope and impact.
Id.
478. See United States v. Sessa, 821 F. Supp. 870, 874 (E.D.N.Y. 1993).
479. See generally Bradley, supra note 3.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
shot,' "480 and is "not even close to dying.""'8 1 In fact, "with respect to those
criteria that best define the harm capacity of criminal organizations, it is
still pre-eminent,' ' 8 2 and therefore "[i]t takes courage or perhaps foolhardiness to pronounce the death of Cosa Nostra .... 483
To illustrate the ineffectiveness of prior law enforcement efforts against
organized crime, Giuliani discussed the long string of prosecutions against
484
the Genovese Organized Crime Family's bosses, including Luciano,
Frank Costello,"8 5 Vito Genovese, 486 Frank "Funzi" Tieri,"87 and Anthony
"Fat Tony" Salerno. 8 8 Guiliani stressed the "utter futility" of these individualized prosecutions by elaborating upon the continuing existence of the
Genovese criminal enterprise despite the successful incarcerations of its
leadership."8 9 However, since Guiliani's statement, Louis "Bobby"
Manna,"9 ' Thomas DePhillips (of the New Jersey faction), 91 Vincent "The
Chin" Gigante,"9 2 and Liborio Bellomo, 493 all bosses or acting bosses of the
Genovese Organized Crime Family, have been convicted, mostly due to the
RICO statute."9 " Additionally, John Digilio was killed while serving as acting boSS4 95 and Dominick "Quiet Dom" Cirillo is alleged to be the current
acting boss of this continuing criminal venture. 4 96 There is also information
that the family is run by a "committee" while Gigante serves his sentence
480. The Mob: Hit Hard But 'Still a Force,' U.S. NEWS & WORLD REPORT, March 25,
1996, available at LEXIS, News Library, U.S. News & World Report File (quoting Rick
Mosquera, FBI's organized crime chief).
481. An Offer They Can't Refuse, TIME MAGAZINE, Nov. 25, 1991, at 66, available at
LEXIS, News Library, Time Magazine File (citing the head of the criminal division of the
New York branch of the FBI).
482. Finckenauer, supra note 11.
483. GOTHAM, supra note 17, at 232.
484. See People v. Luciano, 299 N.Y.S. 132 (1937).
485. Frank Costello was prosecuted for income tax evasion; see United States v. Costello, 255 F.2d 876 (2d Cir. 1958); as well as for refusing to testify before a grand jury after
an attempt upon his life. See People v. Costello, 161 N.E.2d 741 (N.Y. 1959). Later, his
citizenship was also taken from him, due to "his bootlegging activities during Prohibition."
Costello v. United States, 365 U.S. 265, 278 (1961).
486. Genovese was sentenced to 15 years imprisonment as well as a $20,000 fine for
narcotics violations. See Genovese v. United States, 283 F. Supp. 641, 641 (S.D.N.Y. 1968).
487. See United States v. Tieri, 636 F.2d 1206 (2d Cir. 1980) (denying appeal).
488. See Giuliani, supra note 49, at 104.
489. See id.
490. See State v. Manna, 405 A.2d 832 (N.J. 1979).
491. See State v. Boiardo, 412 A.2d 1084 (N.J. Super. Ct. Law Div. 1980).
492. See Gigante, 996 F. Supp. at 194.
493. See United States v. Bellomo, 176 F.3d 580 (2d Cir. 1999).
494. See Jacobs, Final Chapter, supra note 4, at 182-85.
495. See Robert Rudolph, Brother of Slain Mob Boss Faces Weapons Charges - FBI
Arrests Frank DiGilio, 63, in Lakewood, STAR-LEDGER, May 25, 2000, available at 2000
WL 21304954.
496. See SiFAris, supra note 72, at 82-83.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
and two members of this ruling class have recently been indicted.4 97 Although Giuliani placed great faith in RICO's ability to circumvent La Cosa
Nostra permanently,4 9 8 it seems criminal RICO prosecutions of La Cosa
Nostra leaders are more disruptive to the illegal enterprises than earlier
criminal prosecutions.
Civil RICO, "which [is] generally prospective in nature, focus[es] directly upon the racketeer to eliminate his sources of influence and control."49' 9 However, civil RICO actions are not a quick fix. In fact, the
efforts to rid Local 560 from the hands of an organized crime entity required over ten years of litigation. 5 ' Further action after Judge Ackerman's original holding was needed to retain Local 560's freedom from La
Cosa Nostra influence, especially enjoining additional members connected
to organized crime outfits from participation within the union.5 ' By following criminal convictions with a civil RICO action,50 2 law enforcement
was able "to bring about an extensive purge of mobsters and their allies
.. 503 from a once captive union.
The first trustee appointed to the union, Joel R. Jacobson, was commended at the end of his stint for "planting the seed of honest trade unionism within Local 560," and such side benefits as increased membership,
benefits, wages, and elimination of once rampant waste caused by La Cosa
Nostra's influence.504 Law enforcement continued its vigilance with the
help of the appellate court, which affirmed an order requested by the government "for additional relief ...necessary in order to prevent future racketeering violations involving the continued domination ... and exploitation
... of Local 560."1 05 Until the use of civil RICO and the court-appointed
trusteeships imposed in force during the 1990s, it had been impossible to
remove La Cosa Nostra from an infiltrated union.50 6 However, and most
importantly, there are reports that organized crime elements have moved
497. See Department of Justice Press Release, (April 26, 2001), available at http:l/
www.usdoj.gov/usao/nye/pr/2001apr26.htm (last visited January 10, 2002).
498. See generally Giuliani, supra note 49, at 103.
499. Id. at 110.
500. See JACOBS, US v. COSA NOSTRA, supra note 10, at 39.
501. See United States v. Local 560, 865 F.2d 252 (3d Cir. 1988); see also United States
v. Local 560, 736 F. Supp. 601 (D.N.Y. 1990). Court action was also needed in making
determinations regarding the running of the union under the trusteeship. See United States V.
Local 560, 731 F. Supp. 1206 (D.N.J. 1990).
502. RICO in fact encourages this sort of action: "A final judgment or decree rendered
in favor of the United States in any criminal proceeding brought by the United States under
this chapter shall estop the defendant from denying the essential allegations of the criminal
offense in any subsequent civil proceeding brought by the United States." 18 USC § 1964
(d).
503. JACOBS, US v. COSA NOSTRA, supra note 10, at 177.
504. United States v. Local 560, 1987 WL 32971, at *1 (D.N.J. May 12, 1987).
505. Sciarra, 851 F.2d at 624 (omissions in original).
506. See GorHAm, supra note 17, at 105.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
away from union infiltration and are focusing upon other criminal
endeavors. 5 °7
While such cases may be "lengthy and complex, 5 °8 the long-term benefits may outweigh those burdens. Instead of merely freeing positions within
the criminal organizations for other members to fill, i.e. a "traditional prosecution," 5°9 successful civil actions target positions and entire organizations
in an attempt to free them from the clutches of La Cosa Nostra permanently, rather than simply removing individuals temporarily. This is essential in any bid to truly eradicate a criminal organization, as infiltration of
such legitimate businesses affords organized crime families more than just
another avenue of immense wealth, political power, and legitimacy within
the community.5 10 Additionally, families are able to conceal their illicit
activities, and launder illegal profits while providing a source of reportable
legitimate income. 51 ' La Cosa Nostra's hold over these institutions is more
long term and has a greater effect than any single member, including a boss,
can have. These union cases have shown that civil RICO actions aim toward the actual "syndicates and systemic criminality," providing a unique
tool to eradicate La Cosa Nostra. 512
Prosecutors may be even more successful by utilizing both portions of
RICO in a law enforcement initiative. "The concepts of investigation, prosecution and incarceration must be employed as part, and only as part, of a
broader predetermined strategy that consists and adopts any remedy or
combination of remedies, (criminal, civil, loss preventive, legislative, or
other) best designed to limit or deter organized crime activity. 5 13 One
strategy is to initiate a civil RICO action "followed close on the heels of the
criminal convictions of
. .
. the same defendants." 51 4 In United States v.
Ianniello,5 15
the government succeeded a criminal conviction of Matthew
"Matty the Horse" lanniello, a noted Genovese Organized Crime Family
capo (captain), and others, with a civil action which, amongst other remedies, placed the numerous "enterprises" the defendants had controlled into
507. See Finckenauer, supra note 11.
508. Local 560, 780 F.2d at 269.
509. Gotham, supra note 17, at 93. Director of the Organized Crime Task Force of New
York City has stated that he did not believe that such traditional criminal prosecutions could
remove La Cosa Nostra from an infiltrated industry. See id.
510. See Local 560, 780 F.2d at 276.
511. See LYMAN & POTTER, supra note 34, at 87.
512. GOTHAM, supra note 17, at 223.
513. Ronald Goldstock, OperationalIssues In Organized Crime Control, in MAJOR ISSUES IN ORGANIZED CRIME CONTROL 81, 81 (Herbert Edelhertz ed., U.S. Dept. of Justice,
1987).
514. United States v. lanniello, 824 F.2d 203, 205 (2d Cir. 1987).
515. lanniello, 824 F.2d at 203.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
receiverships.5 1 6 Additional benefits of such actions include the proscription against a defendant denying any "essential allegation" proven in a
criminal proceeding in a subsequent civil action5 17 and the ability of judges
to impose the costs to implement civil RICO remedies upon the
defendants.5 18
VI.
CONCLUSION
Incarceration has long been accepted as an ineffective tool against organ5 1 9 Although commentators have praised
ized crime enterprises.
RICO for
focusing upon "the on-going capacity of a criminal organization ...
rather
than specific substantive offenses," 52 0 RICO prosecutions of "mobsters,"
while perhaps harsher and more effective by allowing entire "hierarchy's"
to be punished at once, have little more long term effects than previous
convictions. 5"2 ' Highly publicized criminal convictions have sent gangsters
away for periods well beyond life sentences, 522 only to have new leaders
placed in charge.5 23 The criminal law's retributive goals which include deterrence, incapacitation, and utilitarian notions of rehabilitation 524 are seemingly useless, as organized crime members, "beyond any doubt," continue
their organized criminal activities upon release, and will even "try to participate in gang activities from prison."525
Another example of the ineffectiveness of criminal incarceration is that
once imprisoned, many organized crime figures continue to run their crimi516. See id. Matty the Horse and his cohorts' criminal convictions for both substantive
and conspiracy RICO counts were affirmed. lannello and company were found to be skimming profits as well as a number of other illegal activities involved in the running of a
number of bars and restaurants, including the famed "Umberto's Clam House." See id.
517. See 18 U.S.C. 1964 (d).
518. See United States v. Sasso, 215 F.3d 283 (2d Cir. 2000). But cf. United States v.
Local 1804-1 Intern. Longshoremen's Ass'n, 831 F.Supp. 177 (S.D.N.Y. 1993) (refusing to
impose costs such upon defendants where it would result in an undue hardship and be inequitable considering the nature of the predicate acts).
519. See United States v. Sessa, 821 F. Supp. 870, 873 (E.D.N.Y. 1993) (emphasis
added).
520. Mark H. Moore, Organized Crime As A Business Enterprise, in MAJOR ISSUES IN
51, 52 (Herbert Edelhertz ed., 1987).
521. See Giuliani, supra note 42, at 106. See generally, United States v. Angiulo, 897
F.2d 1169, 1179 (1st Cir. 1990); United States v. Salerno, 868 F.2d 524 (2d Cir. 1989);
United States v. Persico, 832 F.2d 705 (1987); United States v. Ruggiero, 726 F.2d 913, 923
(2d Cir. 1984).
522. See Salerno, 868 F.2d at 524.
523. See United States v. Gigante, 982 F. Supp. 140 (E.D.N.Y. 1997).
ORGANIZED CRIME CONTROL
524. See JOSHUA DRESSLER, CASES
1999).
525. Sessa, 821 F. Supp. at 873.
AND MATERIALS ON CRIMINAL LAW
29-77 (2d ed.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
nal enterprises from within penal institutions.5 26 For example, even after
the satisfaction of finally convicting the "Teflon Don," 52 7 one must wonder
how much of an actual effect this had on the Gambino Organized Crime
Family when there are reports that Gotti continued to run the family from
Marion Prison.52 8
While a single RICO prosecution may have led to the convictions of the
entire Colombo Organized Crime Family leadership, 529 recent activities
show this family is still in (illicit) business.5 3 ° The Colombo Family has
continued to engage in criminal activities; in fact, this formerly incarcerated
leadership- the "Persico faction"- which had been supposedly dismantled,
has continued to fight for domination of the criminal association's enterThese statements are not intended to contradict or criticize crimiprises.
nal RICO's enormous effect upon organized crime.532 While the structure
of La Cosa Nostra families once protected its leadership, RICO allows prosecutors to use that structure against them. "These rules and customs of
Cosa Nostra, which traditionally insulated the bosses from prosecution, now
were offered as evidence proving the existence of an enterprise that passed
on its structure, rules, and criminal franchises from generation to generation."'533 "With the passage of RICO, the entire picture of the organization's criminal behavior and the involvement of its leaders in directing that
behavior could be captured and presented."5'34 Criminal sanctions are undoubtedly still required, even if to simply "incapacitate defendants and extract them from the net of criminal activity," while also attempting through
deterrence to "save youngsters who might be seduced into the criminal
526. See United States v. Gigante, 982 F. Supp 140, 172 (E.D.N.Y. 1997) (explaining
how this court has often had to deal with defendants, particularly in organized crime cases,
who continued to direct a conspiracy while incarcerated); see also supra note 498.
527. See United States v. Locascio, 6 F.3d 924 (2d Cir. 1993); see also United States v.
King, 140 F.3d 76, 79 (2d Cir. 1998).
528. See JACOBS, US V. COSA NosTRA, supra note 10, at 92 n.12. Reports now, however, report that Gotti is suffering from cancer, and may soon die. See Allen Ferier,Sleeping
with the Giants of the Mob, N.Y. TIMES, April 22, 2001 available at LEXIS, News Library,
N.Y. Times File.
529. See Giuliani, supra note 42, at 104 (discussing United States v. Persico, 832 F.2d
705 (1987)).
530. See supra note 464.
531. See United States v. Persico, 164 F.3d 796, 798 (2d Cir. 1999). This battle for
control of the Colombo Organized Crime Family has resulted in numerous prosecutions of
the La Cosa Nostra family's members. See id.; see also United States v. Orena, 145 F.3d
551 (2d Cir. 1998); United States v. Malpeso, 115 F.3d 155 (2d Cir. 1997); United States v.
Orena, 32 F.3d 704 (2d Cir. 1994); United States v. Brady, 26 F.3d 282 (2d Cir. 1994);
United States v. Amato, 15 F.3d 230 (2d Cir. 1994); United States v. Orena, 986 F.2d 628
(2d Cir. 1993).
532. See generally Blakely II, supra note 126.
533. JACOBS, US v. COSA NOSTRA, supra note 10, at 83.
534. Blakely II, supra note 126, at 42 (citing Effectiveness of the Government's Attack
on La Cosa Nostra (Gen. Accounting Office, April 14, 1988)).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
lifestyle of these mobsters."53' 5 Indeed, criminal RICO may be more effective at reaching some of the noted policy goals of the statute, "namely, 'to
punish, deter, incapacitate, and... directly to remove the corrupting influence from the channels of commerce.' "536 The inevitable conclusion, however, remains that criminal RICO is a more effective force against the
individual in organized crime actions, while civil RICO may be better situated to combat the enterprise, namely an entire Mafia family or La Cosa
Nostra as a whole.
Civil RICO is more effectively designed to enforce a strategy originally
imposed upon all of RICO. Law enforcement officials do not focus on the
individual, but rather explore the "offices" which members occupy, while
"trying to determine what functional capabilities they represent, and what
partnerships and relations seem to exist among the individuals." '3 7 If this
strategy had been in force, law enforcement may have realized earlier that
Vincent Gigante was in fact in a higher leadership position than Anthony
Salerno who, in actuality, merely followed Gigante's orders.53 8 Rather than
creating vacancies to be filled by others, prosecutors utilizing civil RICO's
remedies may, after determining and evaluating how family members figure
in within the operations of criminal activities, ask for more creative remedies to thwart not only the fiscal base of organized crime, 539 but the control
and power illegal enterprises have developed to further their particular illicit ventures.
Focusing on civil RICO remedies, such as injunctions, dissolutions, and
especially the power to "reorganize," law enforcement may duplicate the
results of Local 560 and Cappetto. Enjoining numerous individuals from
participation within an enterprise, legitimate or illegitimate, extracts the
power they once received as a group from that institution. Families would
no longer be able to reap the intangible benefits allotted them by control of
unions if injunctions are successfully implemented and enforced. While
such actions are not without their critics,54 Local 560 is an excellent example of how persistence by law enforcement can disable a once powerful
association and the benefits reaped therein.
"The policy goal, then, is to weaken and frustrate the enterprises rather
than control their criminal offending." 4' 1 Indeed, "civil remedies could be
535. United States v. Sessa, 821 F.Supp. 870, 874 (E.D.N.Y. 1993).
536. Russello v. United States, 464 U.S. 16, 2 (1983) (citing Senator McClellan).
537. Moore, supra note 520, at 61.
538. See United States v. Gigante, 982 F. Supp. 140, 145 (E.D.N.Y. 1997).
539. See infra note 570.
540. See Dean, supra note 95 (arguing unions should not be held to "potentially unending federal oversight").
541. Moore, supra note 435, at 51.
Summer, 20021
CIVIL RICO VERSUS CRIMINAL RICO
useful in eradicating organized crime from the social fabric ....
The
remedies made available through 18 U.S.C. § 1964(c) are "equitable and
remedial in nature, not punitive, ' 5 43 and are therefore better situated at addressing a long term problem such as organized crime. While much of La
Cosa Nostra's strength comes from its ability to exploit market vulnerabilities while maintaining stability and predictability generally required to remain profitable, 5 " the civil remedies provided by RICO are more adept at
disrupting this strength than incarceration or forfeiture.
RICO has been described as "more than a set of laws around which a
case is mounted; it is also an investigative instrument that assists planning
and the formulation of enforcement work agendas as cases proceed."54' 5 Although complex, the formulation of connecting persons with enterprises,
and predicate acts with a continuous sense of criminality may guide law
enforcement not only in their investigations, but in determining what remedies are appropriate. Giuliani stresses the importance of allowing a prosecutor to "present a jury with the whole picture of how an enterprise, such as
an organized crime family, operates."5'46 While this was important for the
prosecutor to enable the government to indict "the entire hierarchy of an
organized crime family,"54' 7 by introducing evidence of the structure 5" and
history5 49 of La Cosa Nostra in general, and even allowing members of
other families rather than the accused's to testify. 550 However, prosecutors
and judges alike should be better equipped to fashion such remedies as
would be appropriate to end the destructive potential of the entire entity
rather than just a replaceable spoke in the La Cosa Nostra wheel.5 5 1 Creative use of injunctions can limit the effectiveness of organized crime families by removing them from both legitimate55 2 and illegitimate businesses
ventures. 553 Keeping them from future activities55 4 requires follow-up information on both the individual's and the association's actions, as well as
542.
543.
to deal
544.
545.
United States v. Turkette, 452 U.S. 576, 585 (1981).
Local 560, 581 F. Supp. at 328; see also Turkette, 452 U.S. at 593 ("As a measure
with . . . organized crime, RICO was both preventive and remedial.").
See Finckenauer, supra note 11.
Introduction to
HANDBOOK OF ORGANIZED CRIME IN THE UNITED STATES
13 (Rob-
ert J. Kelly, et al. eds., 1994).
546. Giuliani, supra note 49, at 106.
547. Id.
548. See United States v. Bellomo, 176 F.3d 580, 585-86 (2d Cir. 1999).
549. See United States v. Salerno, 868 F.2d 524 (2d Cir. 1989); see also Jeffries, supra
note 47, at 1105 (arguing the 'historical' nature of organized crime cases presents an advantage of federalizing such cases).
550. See Bellomo, 176 F.3d at 586.
551. See id.
552. See Local 560, 581 F. Supp. at 279.
553. Cappetto, 502 F.2d at 1351.
554. See Local 560, 581 F. Supp. at 279.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
any targeted business ventures, 5 making it difficult to associate with other
criminal elements.5 56 Indeed, injunctions forbidding association with other
La Cosa Nostra members allows law enforcement an easier opportunity to
control organized criminals without touching upon sensitive constitutional
issues.5 57
RICO has been and will continue to be confronted with numerous challenges on a variety of grounds, 558 and yet it Will likely continue to survive.
Inherently, therefore, in conjunction with RICO's "liberal construction"
clause, prosecutors should not be hesitant to attempt new and innovative
remedial measures under the act. Information garnished from valuable investigations like Operation GENUS should be used in fitting "punishments"
more adept at frustrating the enterprise, rather than merely a group of individuals, as RICO's proponents have long held is the crucial benefit of the
statute.
Additionally, the lower "preponderance of the evidence" standard in civil
trials is more easily established than the criminal "beyond a reasonable
doubt" standard, which courts have held applicable in RICO civil trials.5 9
Ultimately, RICO should be used as it was intended, as a primarily civil and
remedial measure.
However, besides those declaring the overwhelming success of RICO
against organized crime members and organizations, others have already
looked beyond the act. Criticizing the "complex and cumbersome task" of
proving a RICO enterprise, some have proposed focusing upon the money
555. See Cappetto, 502 F.2d at 1351; see also United States v. Sciarra, 851 F.2d 621
(1988).
556. See United States v. Local 1804-1, Intern. Longshoremen's Ass'n, 812 F. Supp.
1303 (S.D.N.Y. 1989).
557. See generally Lynch I, supra note 17.
558. RICO has survived challenges on numerous issues, including constitutional confrontations regarding the First, Eighth and Tenth Amendment vagueness, ex post fact, double
jeopardy issues; and Fifth and Fourteenth Amendment due process and equal protection
challenges. See Bourgeois, supra note 16, at 915-23. Other challenges relate to possible
spill-over effect; see Mastin, supra note 16, at 2330-37. But cf. Zafiro v. United States, 506
U.S. 534, 539-40 (1993) (holding "spill-over" did not violate the constitutional rights of the
defendants); that it was enacted solely to be used against organized crime elements, see H.J.
Inc. v. N.W. Bell Tel. Co., 492 U.S. 229, 246 (1989). But cf Mastin, supra note 16, at 2308
(noting "numerous factors indicate that RICO's expansion beyond traditional organized
crime entities has been appropriate and was intended."); attaching criminal stigma to civil
proceedings, see Antonio J. Califa, RICO Threatens Civil Liberties, 43 V~aD. L. REv. 805,
849-50 (1990). But cf. Sedima, 473 U.S. at 492 ("As for stigma, a civil RICO proceeding
leaves no greater stain than do a number of other civil proceedings."); the problems associated with the RICO megatrial, see G. Robert Blakey, RICO: The FederalExperience (Criminal and Civil) and an Analysis of Attacks Against the Statute in HANDBOOK OF ORGANIZED
CRIME IN THE UNITED STATES 457 (Robert J. Kelly, et al. eds., 1994); and an alleged explosion of perhaps frivolous litigation and extortionate settlements, see id. at 467-75.
559. See Local 560, 581 F. Supp. at 327-28 (discussing the reasoning behind using the
preponderance of the evidence standard of proof in civil RICO trials).
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
launderers who "clean" organized crime's "dirty" money. 6 ° Administrative remedies through regulatory initiatives and the creation of private inspector generals are two newer tools being used by those realizing criminal
sanctions alone cannot defeat criminal organizations.61 Guiliani has been
praised for his continued battle against organized crime even after the end
of his prosecuting days, for the many successful administrative remedies
created within New York City. 562 In fact, although this powerful tool had
been affirmed in the 1959 decision in Barton Trucking Corp. v.
O'Connell,56 3 use of regulatory devices to rid industries of organized crime
influences were unused until Giuliani took office in 1994, 5 6 despite its
ability to "cripple" a La Cosa Nostra controlled business without arrest,
prosecution, or long trials. 65
With the emergence of criminal organizations, the rise of foreign organized crime enterprises, and the increasing collaboration amongst such organizations, international cooperation is becoming a necessity for any war
against organized crime.5 66 In fact, "just as organized crime could not exist
without international cooperation, the only possibility of combating contemporary organized crime is through international cooperation. '567 Perhaps the greatest example of this was the noted "Pizza Connection case"
where members of both the American La Cosa Nostra and the Sicilian Mafia were convicted under RICO for their parts in an international drug
smuggling operation.56 8
To effectively extinguish organized crime, the source of its power must
'
be repealed. While previous efforts have focused upon the "fiscal base" 569
560. See Amann, supra note 32, at 199; see also Robert J. Kelly, et al., Turning Black
Money into Green: Money Laundering, in HANDBOOK OF ORGANIZED CRIME IN THE UNITED
311 (Robert J. Kelly, et al. eds., 1994); President's Comm'n on Organized Crime,
The Cash Connection: Organized Crime, Financial Institutions, and Money Laundering
(1984) (defining money laundering as "the process by which one conceals the existence,
illegal source, or illegal application of income, and then disguises that income to make it
STATES
appear legitimate.").
561. See Finckenauer, supra note 11.
562. See generally Morelle, supra note 26; see also Jacobs, Final Chapter,supra note 4
at 159, 175-76. For a general look at Giuliani's role against La Cosa Nostra in New York
City see, Gotham, supra note 17, at 229.
563. 197 N.Y.S.2d 138, 149 (1959).
564.
See GOTHAM, supra note 17, at 30.
565.
See id. at 32.
566. See generally, MERGER, supra note 125.
567. CarrieLyn Donigan Guymon, International Legal Mechanisms for Combating
TransnationalOrganized Crime: The Need for a Multilateral Convention, 18 BERKELEY J.
INT'L L. 53, 54 (2000) (citations omitted) (internal quotations omitted); see also Christopher
M. Pilkerton, Changing the Chameleon: A New Approach to the Investigation of Transnational Organized Crime, 247 INT'L LEGAL. PERSP. 247 (1998).
568. See JACOBS, US v. COSA NOSTRA, supra note 10, at 129-66.
569. McClellan, supra note 138, at 141.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 28:279
of La Cosa Nostra, this is indeed an important aspect which needs further
development and enforcement.5 7 ° One must realize that money is not the
only source of organized crime power. For example, while La Cosa Nostra's control over unions provides an additional source of income for both
individual members and the families as a whole, it also provides other essential intangible benefits such as a form of "legitimacy" which has led to
tangible political power and other benefits.5 7 While the criminal forfeiture
portion of the RICO statute is but one means to attack the financial base,
only through the use of civil RICO's injunctions and remedies can law enforcement hope to combat the other means, including the infiltration of legitimate businesses.5 7 2
No matter what strategy is used, the most important consideration is undoubtedly that "a successful attack on organized crime cannot be a shortterm campaign. '5 73 La Cosa Nostra has ruthlessly attempted to regain the
power taken away by law enforcement. Law enforcement as a whole must
attempt to avoid the typical downfall inherent in "the nature of our governmental system," whose focus rarely remains upon a given problem for
long.5 74 This is imperative, as shown by Judge Ackerman while discussing
the state of the Local 560 some time after his original decision, declaring:
"Elements of the old regime are plotting to regain power. They're there, I
know it .... It's like squeezing water out of a wash rag .... There's still a
lot of dirty water in that rag ....
For any number of reasons, the world continues to be full of those with
"youthful aspirations to become organized crime soldiers," 576 often by being "lured into organized crime by the ethos of the neighborhood as young
twigs bent by their seniors. 5 77 Just as another of these "soldiers," or even
an alternative "boss" will be ready and willing to walk in and fill the shoes
of an incarcerated "wiseguy," even if law enforcement were ever completely successful at eliminating the Mafia, new and developing organized
crime groups would be more than willing to fill the shoes of the long
daunted La Cosa Nostra.
At the same time, La Cosa Nostra continues to diversify. As law enforcement has been successful in purging unions and other legitimate industries of organized crime's influence, the families have moved on to other
570.
See generally Amann, supra note 32.
571.
See GoTHAm,
572.
See supra notes 88-107.
supra note 17; see also supra notes 510-11 and accompanying text.
573. Jacobs, Final Chapter, supra note 4, at 129.
574. GoTHAm, supra note 17, at 233.
575. United States v. Sciarra, 851 F.2d 621, 624 (1988). Sciarra held, inter alia, that
these, and other, statements by Judge Ackerman did not amount to extrajudicial bias.
576. United States v. Sessa, 821 F. Supp. 870, 871 (E.D.N.Y. 1993).
577. Id.
Summer, 2002]
CIVIL RICO VERSUS CRIMINAL RICO
white-collar crimes, most specifically health insurance, prepaid telephone
cards, and Wall Street brokerage houses.5 7 8 Equally important is continued
diligence against corrupt politicians and businessmen aiding organized
crime figures. Not only has corruption long been a powerful ally of La
Cosa Nostra,5 79 a direct relationship in La Cosa Nostra's political influence
and its general decline has been noted.58 °
Overall, while headlines such as "Organized Crime Boss Incarcerated for
One-Hundred Years," may be more "exciting" and grab more attention than
"Trusteeship Imposed on Local Union," the latter may actually do more in
the battle to "eradicate" organized crime.
Brian Goodwin
578. See Finckenauer, supra note 11.
579. To secure much of its power "these criminals have in many places established
corrupt alliances with the police, the prosecutors, the courts, and the legislators." G. Robert
Blakey, Federal Criminal Law: The Need, Not For Revised ConstitutionalTheory or New
CongressionalStatutes, But the Exercise of Responsible Prosecutive Discretion, 46 HASTINGS L.J. 1175, 1198 (1995). Politicians "[t]ouched by its corruption" kept law enforcement from focusing upon La Cosa Nostra by "minimiz[ing] its significance." Id. at 1196-97.
580. See Finckenauer, supra note 11.