RECOMMENDATION 15

Part: 
Three
Chapter: 
2

The Department of Justice and United States Attorneys should use the Racketeer Influenced and Corrupt Organizations Act (RICO) as a means of prosecuting major producers and distributors of obscene material

Recent amendments to the Racketeer Influenced and Corrupt Organizations Act (RICO) made obscenity offenses predicate crimes under the statute.[216] To date, no prosecutions against producers or distributors of obscene material have been brought under RICO in any of the ninety-four federal districts. RICO was enacted as part of the Organized Crime Control Act of 1970.[217] Prosecution under RICO arises when an individual demonstrates an established pattern of racketeering activity. Section 1961(5) requires that at least two of the federal or state predicate crimes enumerated in section 1961(1) must have been committed by the individual within a ten year period.[218] Offenses relating to obscenity are included among the predicate offenses.[219] The activities proscribed under RICO are listed in section 1962 as follows:

  1. investing proceeds of a pattern of racketeering in an enterprise.
  2. acquiring or maintaining an interest in an enterprise through a pattern of racketeering.
  3. conducting affairs of an enterprise through a pattern of racketeering.
  4. conspiring to violate (a), (b), or (c).[220]

The penalty provisions of 18 U.S.C. S1963 provide for a fine of not more than $25,000 or imprisonment for not more than twenty years or both.[221] The statute also provides for mandatory forfeiture of:

  1. a defendant's interest in any enterprise acquired with racketeering income.
  2. interests, securities, claims or contractual rights of an illegally controlled enterprise.
  3. proceeds or property derived from such proceeds.

Department of justice guidelines regarding RICO prosecutions appropriately prohibit a United States Attorney from bringing an indictment for a violation of section 1962(c) based upon a pattern of racketeering activity growing out of a single criminal episode or transaction.[222] Thus an individual could not be indicted under RICO based on violations of 18 U.S.C. S1461 (mailing obscene matter) and 18 U.S.C. S1463 (mailing indecent matter on envelope or wrapper) if both arise out of the same mailing. This is a situation which may occur frequently in obscenity cases and thus preclude the United States Attorney from prosecuting under RICO.[223] It should be obvious that the stringent forfeiture provisions under RICO would be one of the strongest weapons in the prosecution arsenal and could, in appropriate cases, virtually eliminate a large scale pornography operation.

Notes

  1. 18 U.S.C. SS1961-1968 (West Supp. 1985). Section 1961 (5) defines a "pattern of racketeering activity as at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity. Section 1961 (1) defines "racketeering activity" as (A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 172, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1084 (relating to the transmission of gambling information), section 1341 relating to mail fraud), section 1343 (relating to wire fraud), sections 1461-1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of state or local law enforcement), section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful welfare fund payments), section 1955 (relating to the prohibition of illegal gambling businesses), sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles), sections 2320 (relating to trafficking in certain motor vehicles or motor vehicle parts), sections 2341-2346 (relating to trafficking in contraband cigarettes), sections 2421-24 (relating to white slave traffic), (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions of payments and loans to labor organizations) or section 501 (c) (relating to embezzlement from union funds), (D) any offense involving fraud connected with a case under title 11, fraud in the importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs, punishable under any law of the United States, or (E) any act which is indictable under the Currency and Foreign Transactions Reporting Act; any of those acts or offenses constitute a predicate act under RICO.
  2. 18 U.S.C. SS1961-1968 (West Supp. 1985).
  3. Id.; A predicated crime is one upon which an action under RICO can be based.
  4. 18 U.S.C. S1961(1)(B).
  5. 18 U.S.C. 51962 (West Supp. 1985).
  6. 18 U.S.C. 51963 (West Supp. 1985).
  7. United States Department of Justice, United States Attorney's Manual, Title 9, Chapter 110, p. 4. (June 18. 1981).
  8. See, Recommendations for Changes in Federal Law in this Chapter.