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Civil Versus Criminal RICO and the"Eradication" of La Cosa Nostra

I. INTRODUCTION

Although organized crime, and more specifically "La Cosa Nostra,"' hasthrived in New York City (and across the United States) for over a century,2

it took law enforcement approximately fifty years to even acknowledge itsexistence.3 Despite the authorities' recognition of some form of "nation-wide criminal conspiracy,"4 the public was left almost unaware of the con-spiracy, and law enforcement efforts continued to be fairly lax in regards tothis phenomenon.5 Over thirty years ago, however, the Racketeer Influ-enced and Corrupt Organizations Act6 (RICO) was enacted as Title IX ofthe Omnibus Organized Crime Control Act (OCCA)7 to specifically "seekthe eradication of organized crime in the United States by strengthening thelegal tools in the evidence-gathering process, by establishing new penalprohibitions, and by providing enhanced sanctions and new remedies todeal with the unlawful activities of those engaged in organized crime."8

1. "'La Cosa Nostra' refers to a nationwide crime organization which is divided intounits called 'families.' It is an Italian phrase that translates into English as 'our thing' or 'thisthing of ours.'" United States v. District Council of New York City and Vicinity of UnitedBroth. 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 FletcherN. 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: IsThere 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, RacketeeringAnd The Federalization Of Crime, 22 AM. CrM. L. REV. 213, 215 (1984) ("While organizedcriminal activity in America is undoubtedly as old as America itself, the notion that thefederal government ought to do anything about it is relatively recent.").

4. Debate continues regarding the national characteristic of La Cosa Nostra, as well asthe 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 UrbanStreet Gangs: A Proper Application of RICO, 42 CATH. U. L. Rav. 579, 583 (1993) ("Formany decades, the complex structure and virtual invisibility of Mafia kept most Americansunaware of its existence, and left most law enforcement officials unable to infiltrate or un-derstand 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).

CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:279

Over two decades after the first criminal RICO conviction of a La CosaNostra boss,9 and over sixteen years after the first civil RICO action wassuccessfully brought against an organized crime controlled enterprise, 0

many commentators have proclaimed the death, imminent demise, or severecrippling of La Cosa Nostra within the United States.11 One "eminentscholar" 12 has stated that "[a]n unprecedented law enforcement attack, cou-pled with new civil and regulatory organized crime control strategies,leaves the survival of the Italian organized crime families in doubt."13 In1986, President Ronald Reagan boldly claimed to have "the mob on therun."14 It has been stated that "[s]ome families have disappeared, andothers 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 "draco-

9. 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 ofoperating affairs through a pattern of racketeering activity which involved predicate acts ofmurder, extortion, loansharking, receipt of stolen property, and bankruptcy fraud."); see alsoUnited States v. Tied, 636 F.2d 1206 (2d Cir. 1980) (denying appeal); Jacobs, Final Chap-ter, 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 OrganizedCrime Family boss Frank "Funzi" Tieri).

10. See generally United States v. Local 560, Int'l Bhd. of Teamsters, Chauffeurs, 780F.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 andInnocent 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's Guide to Under-standing the Third Circuit's Interpretation of Civil RICO's "Pattern of Racketeering Activ-ity," 69 TEMP. L. REv. 413, 414-15 (1996) ("Many predicted that the Mafia, or La CosaNostra, would be destroyed by the turn of the century."); Jacobs, Final Chapter, supra note4, at 129; Bonney, supra, note 5, at 580-01; James 0. Finckenauer, Ph.D., La Cosa Nostrain 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, "An-other Case of Multiculturalism," The New York Review of Books (9 April 1992)) ("Make nomistake: once the federal prosecutors contrive to encase John Gotti, we shall lost the last ofthe grand personages who had been our dependence for supporting the myth of the Mafia asa force in current history.").

12. See Finckenauer, supra, note 11. James B. Jacobs is professor of law at New YorkUniversity School of Law who has published a number of books and articles on the subjectof 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 Inoperation and Mismanagement of Reves v. Ernst & Young, 71 TUL.

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nian' "7 and "drastic remedies."' 8 Successful prosecutions of the heads ofLa Cosa Nostra families (called "Bosses," "Dons," or "Godfathers," amongothers), 9 nearly unheard of before RICO, 20 has triggered reference to the"twilight of the Godfathers." 2I Entire La Cosa Nostra organizations haveapparently been "dismantled. 22 Organized crime's influence over wealthyenterprises (including labor unions, 23 New York's Javits ConventionCenter,24 and Kennedy Airport 25 ) and citywide industries (such as the con-struction business 26 and the waste hauling trade 27) within New York wereseemingly eliminated.28 Much of the credit for this "eradication" has fallenon 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 Cor-rupt Organizations Act, 37 AM. CRIM. L. REV. 879, 886 (2000); Yvette M. Mastin, RICOConspiracy: Dismantles the Mexican Mafia & Disables Procedural Due Process, 27 WM.MITCHELL L. REV. 2295, 2297 (2001) ("RICO allows the federal government to eradicate acriminal organization such as the Mexican Mafia through the prosecution of its members andassociates for criminal offenses and other acts they commit for the purpose of maintainingthe criminal organization and fulfilling its criminal objective."); Ethan Brett Gerber, Note, 'ARICO 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, 87COLUM. L. REV. 661, 661 (1987) [hereinafter Lynch I]; see also JAMES B. JACOBS, GoTHAMUNBOUND: 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 consoli-

dated appeals are the latest saga in the government's dismantling of the Philadelphia branchof 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 & CanneryUnion, 889 F.2d 1232 (2d Cir. 1989); United States v. Local 6A, Cement and ConcreteWorkers, 663 F. Supp. 192 (S.D.N.Y. 1986); see also JACOBS, US v. COSA NOSTRA, supranote 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. Mo-relle, Note, "Something Smells Fishy": The Giuliani Administration's Effort To Rid TheCommercial 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 NewYork City construction industry, see RONALD GOLDSTOCK ET AL, CORRUPTION AND RACKE-

TEERING 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 Fin-ish Last, NEWSWEEK, Apr. 13, 1992, at 34; Edward S.G. Dennis, Jr., Current RICO Policies


However, "[r]equiems for American gangsters are nothing new, and theyare usually premature."'" The following Note will explore the RICO stat-ute in the context of La Cosa Nostra actions. The focus will be upon thenotable "Five Families of New York,"33 considered the most powerful and"probably the best-known example of the emergence of... organized crimein a single city."34 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 organ-ized - crime prosecution was brought under [RICO].").

30. While "[o]nly three of [OCCA' s] Titles create substantive offenses, Title VIII, [re-garding] 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] pro-vide[s] various procedural and remedial devices to aid in the prosecution and incarcerationof 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 organiza-tion. See Diane Marie Amann, Spotting Money Launderers: A Better Way To Fight Organ-ized Crime?, 27 SYRACUSE J. INT'L L. & COM. 199, 203 (2000) ("Although RICO was aimedat organized crime, less than [ten] percent of RICO indictments filed in the first fifteen yearsinvolved 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 thepowerful structure that survives to this day, originated after the Castellammarese War. SeeOC ENCYCLOPEDIA, supra note 9, at 56. Five "lieutenants" from both the warring Masseriaand Maranzano factions of early New York, took control of their own families following thedeaths 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]' theMafia." 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 Genoveseand his henchman, Vincent Gigante. See id. at 134-35. The Genovese Organized CrimeFamily retains Vito's name today. Joseph Profaci was another "founding godfather," whowas succeeded by Joseph Magliocco, until eventually Joseph Colombo, Jr. took over, andwhose name remains for the Colombo Organized Crime Family. See id. at 78. The LucheseOrganized Crime Family was originally headed by another Maranzano soldier, Tom Gag-liano, until his death, when Gaetano "Three-Finger Brown" Luchese took over. See id. at197. Vincent Mangano retained leadership over another of the early New York crime fami-lies following the Castellammarese War until his assassination and takeover by Albert Anas-tasia, who was also suspected of being his former boss' killer. See id. at 207-08. Anastasiawas eventually assassinated as well, with the head position falling to Carlo Gambino, whostill retains the name of the Gambino Organized Crime Family. See id. at 129. Only theBonanno Organized Crime Family retains the name of its original "father" - JosephBonanno. 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.'"). Becausethese entities have been more visible to the public, there is more known about New YorkCity's Italian criminal entities than any of the other twenty-three La Cosa Nostra familiesknown to exist within the United States, or of any other ethnic variations of the criminalsyndicate. See Jacobs, Final Chapter, supra note 4, at 135; see also Patrick J. Ryan, AHistory of Organized Crime Control: Federal Strike Forces; in HANDBOOK OF ORGANIZED

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of organized crime,35 nor to foster the ill-founded notion that organizedcrime is the Mafia or La Cosa Nostra.36 "Since the late 1970's, a presiden-tial commission, numerous congressional hearings, mobsters' testimony inlegal proceedings and autobiographical accounts, and hundreds of criminaland civil cases have unearthed a wealth of information about the structureand activities of the Italian organized crime families known as the Mafia.... ,37 Such a wealth of information is still unavailable for the otherorganized crime groups, including: Russian,3 8 Asian,39 Colombian, 40

Nigerian,4 Outlaw Motorcycle Gangs, 42 Youth Gangs,43 Prison Gangs, 44

CRIME IN THE UNITED STATES 333, 334 (Robert J. Kelly, et a]. eds. 1994); Bonney, supranote 5, at 597 n.140.

35. "The 'alien-conspiracy model' of organized crime suggests that organized crime is asecret society of foreign ethnic groups structured in a nationwide hierarchy organized byfamilies and based on secrecy and loyalty." Mike Cormaney, Note, RICO In Russia: Effec-tive Control Of Organized Crime Or Another Empty Promise?, 7 TRANSNAT'L L. & CON-TEMP. PROBs. 261, 277-78 (1997). Although not created here, the Kefauver Committee ofthe 1950s helped facilitate this idea both in law enforcement and the public generally. SeeDavid R. Wade, The Conclusion That a Sinister Conspiracy of Foreign Origin ControlsOrganized 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 theAmerican 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 AndProhibition: What Difference Does Legalization Make?, 15 WHITE IR 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 Prescription For

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 theWest. Now we've opened the gates, and this is very dangerous for theworld. America is getting Russian criminals .... They'll steal everything.... Nobody will have the resources to stop them. You people in the Westdon't know our mafia yet; you will, you will.

Id. (quoting Boris Uvarov, Chief Serious Crimes Investigator for the Russian Prosecutor-General.)

39. The Asian organized crime element includes both the Chinese Triads and Tongs.See Katherine C. Spelman, Combating Counterfeiting, in 417 GLOBAL TRADE MARK ANDCOPYRIGHT MANAGEMENT AND PROTECTION 309, 339-40 (Practicing Law Institute ed.,1995), as well as the Japanese Yakuza or Boryokudan. See generally Mark D. West, Infor-mation, Institutions, and Extortion in Japan and the United States: Making Sense of SokoiyaRacketeers, 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 IsGood, 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 Com-munity 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,


and even international terrorist groups.45 Additionally, this Note does notinfer that New York City is the only area with an organized crime problem;La Cosa Nostra has flourished across the nation.46

Section I of this Note takes a brief look at specific characteristics of LaCosa Nostra which have been used in law enforcement efforts against or-ganized crime members. Additionally, a cursory look over such law en-forcement efforts prior to enactment of the OCCA will follow. While therehas been a "great deal" written about the role of RICO in combating organ-ized crime,47 this Note concentrates on the distinction of the criminal andcivil portions of RICO in government actions. Section III focuses on thecriminal portion of the RICO statute and both generally and specifically onsome of the major La Cosa Nostra cases in law enforcement history. InSection IV, an analysis of civil RICO follows with an emphasis on its rolein union litigation. Section V of this Note looks at the "aftermath" thatthese cases have had on organized crime. Section VI concludes that anyringing of the "death knell" for organized crime is once again premature,48

and that while both the criminal and civil portions of RICO have had un-questionable results in the war against La Cosa Nostra, civil RICO is moreadept at any long-range goals of eradicating this "mythical Hydra."4 9

The Gangs Are 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. Rob-ertson, Cruel and Unusual Punishment In United States Prisons; Sexual Harassment AmongMale Inmates, 36 AM. CRUM. L. REV. 1, 51 n. 296 (1999).

45. Although "their motivations differ." See Col. Thomas W. McShane, A ChangingAmerica: Life, Liberty and the Pursuit of Security -Balancing American Values in DifficultTimes, 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 CosaNostra 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 Northeasternurban areas."). In fact, law enforcement has successfully prosecuted La Cosa Nostra figuresacross the country. See Benjamin M. Shieber, Electronic Surveillance, the Mafia, and Indi-vidual Freedom, 42 LA. L. REv. 1323, 1359 (1982) ("Among these statistics are the FBI'saccomplishments 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 LosAngeles ...."). Although it has been said that while New York City law enforcementofficials hold La Cosa Nostra control as a high priority, elsewhere it is not. See sources citedsupra note 11. For a brief look at the relationship between New York City and La CosaNostra, see GOTHAM, supra note 17, at 2-4.

47. John C. Jeffries, Jr. & Honorable John Gleeson, The Federalization of OrganizedCrime: 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 MA-

JOR IssuES IN ORGANIZED CRIME CONTROL 103, 103 (Herbert Edelhertz ed., 1987) (compar-ing organized crime to the legendary monster - "Much like the mythical Hydra slain byHercules, however, as they cut off one head it was soon replaced by others.").

CIVIL RICO VERSUS CRIMINAL RICO

II. BACKGROUND

A. Defining Characteristics of La Cosa Nostra

A successful prosecution of criminal organizations entails an understand-ing of the enterprise and the role of the organization in the commission ofunlawful activities. 5 ° Defining and explaining La Cosa Nostra has per-plexed scholars, criminal justice professionals, and policymakers for almostas long as the organizations have existed.5" The definitions that have devel-oped vary dramatically and reflect the differing viewpoints of their au-thors.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

STATES 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 or-ganized crime merely as 'a nonideological enterprise that involves a numberof persons in close social interaction, organized on a hierarchical basis forthe purpose of securing profit and power by engaging in illegal and legalactivities.' Howard Abadinsky, Organized Crime 7 (Nelson-Hall 2d ed1985); another posits that '[o]rganized criminal groups are simply businessorganizations operating under many different management structures anddealing in illegal products.' Denny F. Pace and Jimmie C. Styles, OrganizedCrime: Concepts and Control 21 (Prentice-Hall 2d ed 1983). Richard Pos-ner 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 violenceand the corruption of police as key business methods.' Richard A. Posner,Economic Analysis of Law 242 (Little, Brown 4th ed 1992). DiegoGambetta describes the Italian mafia as 'that set of firms which (1) are ac-tive in the protection industry under a common trademark with recognizablefeatures; (2) acknowledge one another as the legitimate suppliers of authen-tic mafioso protection; and (3) succeed in preventing the unauthorized useof their trademark by pirate firms.' Diego Gambetta, The Sicilian Mafia:The Business of Private Protection 155 (Harvard 1993). Policymakers like-wise disagree. Since 1992, the United Nations Economic and Social CouncilCommission on Crime Prevention and Criminal Justice has struggled with-out success toward a definition. See M. Cherif Bassiouni and EduardoVetere, Towards Understanding Organized Crime and its TransnationalManifestations, in [M. Cherif] Bassiouni and [Eduardo] Vetere, eds, Organ-ized Crime: A Compilation of U.N. Documents 1975-1998xxvii.. .[(Transnational 1998)] (distinguishing organized crime from othercriminal groups and legitimate enterprises occasionally employing criminalmeans).

Curtis J. Milhaupt & Mark D. West, The Dark Side of Private Ordering: An Institutional andEmpirical 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 Fac-ing the Challenges of Organized Crime, 44 WAYNE L. REv. 1351, 1352 (1998).

Summer, 2002]


crime is beyond reach,53 and perhaps relying on this notion, the OCCAcontains no definition of organized crime.54

While it is "difficult 'to find an antidote for the poison you cannot iden-tify,"' 55 some scholars rely on common characteristics of organized crimeentities in order to form a better understanding of them.56 Such attributesinclude: a hierarchical control structure,5 7 limited or exclusive member-

58 ortraoship, self-perpetuation, use or threat of violence,59 reliance upon briberyand corruption, and the existence of explicit rules and regulations.' A Na-tional Institute of Justice report on La Cosa Nostra claimed it was "bestdescribed ... as being entrepreneurial, opportunistic, and adaptable."'"

This final characteristic, La Cosa Nostra's adaptability, is perhaps themost troublesome to law enforcement. "Part of what makes La Cosa Nostrastrong is its structure and its ability to adapt and change in order to sur-vive."" Organized crime families have "an existence and permanence thatgo beyond individual membership,"'63 where recruiting new "soldiers" hasnever posed a problem for criminal enterprises.' Individual membershipaside, La Cosa Nostra families as a whole have adapted to their surround-ings, enduring emerging organized crime groups65 and "surviv[ing] chang-ing ideas of what is illegal: As bootlegging gave way to drug traffickingand as prostitution expands into video pornography on the Internet, organ-ized 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 (Her-bert Edelhertz ed. 1987). For discussion of the attempts to define "organized crime" and theproblems 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 (Her-

bert 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 (Her-bert Edelhertz ed. 1987).

60. This includes a code of secrecy. See LYMAN & PoTrER, supra note 34, at 7; see alsoUnited States v. Sessa, 821 F. Supp. 870, 871 (E.D.N.Y. 1993).

61. Finckenauer, supra note 11.62. Sara Jankiewicz, Comment, Glasnost and 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 legalizingalcohol and discontinuing organized crime's leading source of profit, the criminal organiza-


activities in which organized criminal groups have insinuated themselves is"617as flexible today as ever ....

Due to these characteristics, comprehensive studies of organized crimefamilies have been almost non-existent, and law enforcement strategies re-lying upon faulty or misleading beliefs have perpetuated the continuing ex-istence of the same criminal organizations.68 Additionally, it was believedthat La Cosa Nostra's infiltration into legitimate businesses "threatened toplace the mob families beyond the reach of traditional criminal law."69

However, with the birth of RICO, prosecutors turned the characteristicswhich once protected the criminal enterprise, into weapons which allow theonce insulated leadership to be prosecuted. All La Cosa Nostra memberswere subjected to stronger penal prohibitions, sanctions, and remedies. 70

Indeed, wiretap evidence shows that the criminals themselves have noticedthe uniqueness of the new law which places them all at risk for participatingin 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 cloudyat best. 72 It is clear that "[g]ambling, prostitution, loansharking, and othervices [associated with organized crime] were commonplace throughout thenineteenth and twentieth centuries. '73 Forms of organized Italian criminal-ity 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 laborracketeering. See LYMAN & POTrER, supra note 34, at 118.

67. See Kelly, Crime and Its Operations, in MAJOR ISSUES IN ORGANIZED CRIME CON-TROL 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 Statesv. 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 thatwiretap of New England La Cosa Nostra boss overheard saying: "Under RICO, no matterwho ... 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 themurder of Police Cheif David Hennessey as the beginning of a response to La Cosa Nostrawithin the United States. See Block, supra note 11, at 42. While Hennessey has beencredited as the first to take action against the alleged Italian criminal conspiracy in theUnited States, some claim the story is used merely to illustrate the existence of La CosaNostra for over a century. See id. at 42-43; see also CARL SIFAKIs, THE MAFIA ENCYCLOPE-DIA: FROM ACCARDO TO ZWILLMAN 249, 269-70 (2d ed. 1999) [hereinafter SIFAKIS].

73. LYMAN & POTTER, supra note 34, at 106.

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century and the "Black Hand," a mysterious criminal element specializingin kidnapping and extortion.7 4

The vast effects of the Eighteenth Amendment on organized crime inAmerica are painfully unmistakable. 75 Besides making millionaires out ofotherwise "petty thugs," Prohibition facilitated the creation of a nationalsystem of distribution and organization among the criminal element.76 Thisestablished network, or "nationalization" of organized crime,77 was incor-porated into other forms of illicit enterprises, such as gambling and laborracketeering, while corrupt political and law enforcement entities were par-alyzed by the enormous wealth afforded to bootleggers. 78 During this time,law enforcement activities against organized criminals were highly unpro-ductive, allowing gangsters to become rich and powerful enough to controlentire cities, 79 and finally leading to the Twenty-first Amendment's repeal-ing of Prohibition.8 ° Before its completion, however, Prohibition created "apatina of respectability and tolerance for crime."" "In the end, Prohibitiongave birth to and nurtured organized crime and did such a brilliant job thattoday we still can't get rid of syndicated gangsters."8

As Prohibition ended, the recently established criminal organizations ofNew York began concentrating on other endeavors to replace bootleg-ging.83 These included such rackets as: "bookmaking, casino gambling, thenumber's rackets, construction, the waterfront, trucking, the taxi business,bail bonds, drugs and bars, nightclubs and restaurants," and prostitution, aswell as old favorites like "protection, burglary, hijacking, and warehouserobberies."84

74. The Black Hand was allegedly transplanted to the U.S. by an immigrant organizedcrime boss from Palermo, Sicily, Don Vito Cascioferro. See Jankiewicz, supra note 62, at217 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 30-31.

75. The Eighteenth Amendment states: "the manufacture, sale, or transportation of in-toxicating liquors within, the importation thereof into, or the exportation thereof from theUnited States and all territory subject to the jurisdiction thereof for beverage purposes ishereby 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 Regula-

tion, 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, Federalizing Organized Crime,46 HASTINGs L.J. 1127, 1130-31 (1995).

81. Kelly, supra note 67, at 16.82. SIFAKIS, supra note 72, at 300.83. See United States v. King, 834 F.2d 109, 112 (6th Cir. 1987); see also LYMAN &

POTTER, supra note 34, at 109.84. King, 834 F.2d at 118.


During this period, future New York Governor and presidential candidateThomas E. Dewey,85 acting as Manhattan District Attorney, incarceratedmany notable figures such as Charles "Lucky" Luciano,8 6 Waxey Gordon, 87

and Gurrah Shapiro.88 Completing successful criminal prosecutions againstsuch upper-ranking gangsters was unprecedented; indeed, these were "featswhich no other New York prosecutor had even dared."89

Additionally, Dewey sent Louis "Lepke" Buchalter to the electric chairfor first-degree murder.9" Buchalter was the only major organized crimefigure to be executed by the government. 9 Dewey's prosecution ofBuchalter resulted from the information received while taking down themob's national hit squad, "Murder, Inc."92 Despite these well-publicizedvictories, the Five Families of New York continued to thrive, monopolizingthe traditional vice rackets in each of the boroughs, and steadily gainingcontrol over the labor rackets and other legitimate industries within NewYork City.93 Luciano's organization, for instance, now known as the Geno-vese Organized Crime Family,94 continues to operate illicit rackets. It hasexpanded its interests in seafood distributors, restaurants, the waste cartageand livery industries, and vending machine businesses,95 and is consideredto be historically the most powerful of the New York families.96

In 1946, Congress enacted the Hobbs Act 97 to specifically address theproblem of organized crime." The act prohibited the common La CosaNostra 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 con-

victed "of conducting and directing on a large scale the business of prostituting women, withfeatures 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 SYNDI-

CATE (1992).93. 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: Undercoverdetective 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).

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with the enactment of RICO, the Hobbs Act [was] the most frequently usedprosecutorial weapon against organized crime."'' The effectiveness of theHobbs Act, however, did not reach its full potential until its use as a predi-cate act under RICO.' 0 '

The 1950s brought the television broadcasts of the Kefauver Commit-tee, 10 2 which interviewed over 600 witnesses regarding organized crime inthe United States.' 3 These included both federal and state law enforcementofficials as well as suspected and convicted criminals."° While the Com-mittee brought La Cosa Nostra back to the forefront of the American con-science and put pressure on FBI director J. Edgar Hoover to act, SenatorKefauver's hearings, the seventeen conclusions and twenty-two recommen-dations 0 5 did not lead to successful law enforcement action.'1 6 While sev-eral bills were drafted which aimed towards the elimination of organizedcrime, 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 Kefauverinvestigation."1o8

In 1963, organized crime came back into the public view through theSenate's McClellan Committee. 0 9 The highlight of this commission camewhen, for the first time, a member of one of New York's criminal familiesbroke "Omerta," organized crime's vaunted "code of silence." 1'0 JosephValachi, a member of the Gambino Organized Crime Family, testifiedabout various aspects of La Cosa Nostra. Introducing the term "La CosaNostra" to the American public, Valachi explained the existence of theCommission, provided information on the hierarchical structure and geo-graphical 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 Par-ticipation In Labor Unions And The Use Of The Hobbs Act To Combat Organized Crime, 17FORDHAM URB. L.J. 189, 193-94 (1989).

102. See REPORT OF THE SENATE SPECIAL COMM. TO INVESTIGATE ORGANIZED CRIME IN

INTERSTATE COMMERCE, S. REP. No. 307, (lst Sess. (1951)).103. 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 OPER-

ATIONS, 88TH CONG., 80 (1st Sess. 1963).110. See OC ENCYCLOPEDIA, supra note 9, at 229-30.


well-protected initiation ritual into Mafia organizations."' 1 Despite a con-troversy over the content of some of Valachi's testimony,1 1 2 the McClellanCommittee made organized crime a priority for law enforcement, andmarked the beginning of Robert Kennedy's attacks on La Cosa Nostra." l3

Meanwhile, FBI director J. Edgar Hoover continued to keep the JusticeDepartment's G-Men out of the fight against organized crime by repeatedlydenying the existence of any such criminal organizations." 4 On November14, 1957, however, the Apalachin Incident115 re-exposed the Mafia to thepublic, and forced Hoover to admit the existence of the Mafia in the UnitedStates." 6 If not for the prodding of then Attorney General Robert F. Ken-nedy, it is alleged that Hoover would have lapsed back into inaction.117

Indeed, it was not until Hoover's death in 1972 that the federal governmentmade organized crime a law enforcement priority. 118

In 1967, a Presidential Task Force on Organized Crime was created tocontinue the work of the Kefauver and McClellan Committees, 1 9 popularlyknown as the "Katzenbach Commission" after its chairman, United StatesAttorney General Nicholas Katzenbach 1 2

' Although the productivity ofthis commission was questionable, 2 ' "[b]y 1969, successive congressionalinvestigations had revealed the resilience, size, and diverse business inter-ests of organized crime."1 22 Additionally, soon after the Katzenbach Com-

111. See LYMAN & POTER, supra note 34, at 30-31; see also PETER MAAS, THE

VALACHI PAPERS (1968).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 RONALDGOLDFARB, PERFECT VILLAINS, IMPERFECT HEROES: ROBERT F. KENNEDY'S WAR ON OR-

GANIZED CRIME (1997).114. See OC ENCYCLOPEDIA, supra note 9, at 158-59.

115. Local police and New York state troopers raided the home of Joseph Barbara, Sr. inApalachin, New York, to find a large number of high-ranking La Cosa Nostra officials gath-ered together. See LYMAN & POTTER, supra note 34, at 28-29. To the public, this seemed tosignify proof of the existence of a nationwide criminal conspiracy existing within the UnitedStates. See id. The exact details, however, of the meeting and the actual significance of theincident 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).119. PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, THE CHAL-

LENGE 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 Criminal Association Laws in Italy and France, 20 FORDHAM INT'L L.J.263, 278 (1996).

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mission's report to the President, the RICO statute was proposed inCongress. 123

Law enforcement efforts prior to RICO were "sporadic" and lacked trulyrigorous exertion until the 1980s.1 24 In general, law enforcement initiativesdirected towards La Cosa Nostra resembled "culling a herd," by targetingthe weak, low-level members, which would only be replaced by more effi-cient gangsters.12 5 The ineffectiveness of law enforcement initiatives up tothe enactment of the OCCA was best described by the General AccountingOffice of the federal government:

[p]rior to the passage of [RICO], attacking an organized criminal groupwas an awkward affair .... Before the act, the government's efforts werenecessarily piece-meal, attacking isolated segments of the organization asthey engaged in single criminal acts. The leaders, when caught, were onlypenalized for what seemed to be unimportant crimes. The larger meaningof these crimes was lost because the big picture could not be presented in asingle criminal prosecution. 126

Congress finally realized that such prior prosecutions of organized crimehad ineffectively focused on the individual, "rather than on organizationalfoundations." '127 "Congress needed to distinguish organized crime from or-dinary crime by statute so that organized criminal groups could be punishedmore severely." '128 With the "structure and strength of organized crimetranscend[ing] its membership," failure to attack the "enterprise criminal-ity" allowed the ongoing success of La Cosa Nostra families, no matter howmany individual prosecutions succeeded. 129 Congress previously passed anumber of statutory initiatives primarily directed at attacking organizedcrime entities, including: the Hobbs Act, 13 0 the Controlled SubstancesAct,1 3' various conditions of the Internal Revenue Code, 132 the Bank Se-

123. 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 Criminal RICO: An Overviewof the Statute and its Operation, 64 DEF. COUNS. J. 36, 42 (1997) (citing Effectiveness of theGovernment's Attack on La Cosa Nostra (Gen. Accounting Office, April 14, 1988)) (altera-tion in original) [hereinafter Blakely II].

127. Ramona Lennea McGee, Note, Criminal RICO and Double Jeopardy Analysis inthe 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.


crecy Act of 1970,' and the Money Laundering Control Act of 1986.'None of these, however, have been more effective than RICO, which is "thechief weapon used by the United States against organized crime."' 13 5 Infact, government operations before RICO have been described as impo-tent.136 "Congress realized that the stereotypical view of organized crimeas consisting in a circumscribed set of illegal activities, such as gamblingand prostitution ... was no longer satisfactory." '13 7 Both Congress and theUnited States Supreme Court eventually realized that La Cosa Nostra se-cured power through its economic position and that any successful attackwould need to be done through its fiscal base.1 38 In response, RICO wasenacted as Title LX of the Organized Crime Control Act. 139

III. THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT

- GENERALLY

A. Proscriptions

Title IX makes it unlawful to engage in a variety of activities, criminal orotherwise, which are related to the running of an enterprise." 4° In general,Congress developed the statute while considering unlawful relations be-tween "persons" and an "enterprise." 14' Although both terms are broadlydefined, they are separate requirements under RICO, requiring both an actor("person"), which may also be an organization, whose unlawful actions arein furtherance of a separate and distinct association ("enterprise").' 42

RICO's first element requires proof that the defendant committed two pred-icate acts in connection with the maintaining of an enterprise. 14 3 The twopredicate acts must occur within a ten year period."4 However, the require-ment does not necessitate that the defendant be convicted of such activi-

133. 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 alsoRusello 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) 84Stat. 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. See Liebman, supra note 10, at 127-28.142. See id.143. See 18 U.S.C. § 1962 (1994).144. See 18 U.S.C. § 1961(5) (1994).

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ties, 14' nor are prosecutors banned from using prior convictions as predicate

acts,' 46 although they are not considered in sentencing under the UnitedStates Sentencing Guidelines (the Guidelines). 147

Unlike prior statutes used against organized crime, RICO's proscriptionsinclude the mere receiving of income earned from a "pattern of racketeer-ing" 14

1 with the "acquisition of any interest in, establishment or operationof, any enterprise which is engaged in, or the activities which affect, inter-state or foreign commerce."1 49 This former proscription was directed at the"'classic Mafia investment case envisioned by Congress,' where 'organizedcriminals gain control of an uncorrupted business by investing profits fromgambling or other illegal activities."" 5 0 Such prosecutions are rare due tothe additional evidence required to show the gains of the predicate actswere invested within the RICO enterprise."' Additionally, RICO makes itunlawful for anyone to have "any interest in or control of an enterprisewhich is engaged in" racketeering activity,' 52 to participate in such an en-terprise, 153 or to conspire to do any of the previous. 154 The net effect ofRICO was to criminalize membership or association with an enterprise en-

145. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 488 (1985) (noting that "theword 'conviction' does not appear in any relevant portion of the statute.")

146. See U.S. Sentencing Guidelines Manual § 2E1.l, Application Notes (4) (1998); seealso United States v. Persico, 832 F.2d 705 (2d Cir. 1987) (discussing how use of previousconvictions for predicate acts under RICO does not violate a defendant's double jeopardyrights); 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, affectedinterstate commerce. See John Panneton, Federalizing Fires: The Evolving Federal Re-sponse 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 needonly show:

(1) the enterprise purchased, sold or distributed contraband, in interstatecommerce; (2) the enterprise used interstate facilities (interstate bankingsystem, telephone calls, wire transfers); (3) members or associates of theenterprise traveled in interstate commerce, or outside the United States, tocarry out their illegal activities; or (4) the victims, such as storefronts, of theenterprise'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, at2313.

154. See 18 U.S.C. § 1962(d) (1994). For various issues regarding the RICO conspir-acy, see Beck v. Prupis, 529 U.S. 494 (2000); see also Mastin, supra note 16; Gerber, supranote 16, at 983-87.

294


gaged in racketeering activities; therefore, actual participation in the crimi-nal activity became irrelevant for purposes of the statute. 155 Lawenforcement was now better apt to "dismantle organizations" by ways un-heard of before, including tying together "multiple 'unrelated' crimes andconspiracies" into one enterprise prosecution. 15 6

Having moved beyond "the traditional conception of organized crime,"Congress deliberately enacted a broad tool against criminal enterprises inorder to ensnare the full spectrum of criminals operating in conjunctionwith the illicit organizations.157 "Racketeering activity" was defined inRICO to include "any act or threat involving murder, kidnapping, gambling,arson, robbery, bribery, extortion, dealing in obscene matter," or dealing ina controlled substance or listed chemical. 158 However, in order to fallwithin RICO's scope, the predicate crimes charged must be listed in 18U.S.C. § 1961(1).159 In fact, an attorney may be sanctioned for attemptingto 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 limitRICO by "adopt[ing] a strict textual analysis in defining the scope of con-duct covered by RICO's proscriptions." 162 Regardless, use of a broad list todefine unlawful acts under RICO has resulted in prosecutions and adjudica-tions regarding everything from tobacco litigation, 163 securities fraudcases, 164 prosecutions of government officials 165 and anti-abortion protes-

155. See OC ENCYCLOPEDIA, supra note 9, at 258.156. Mastin, supra note 16, at 2320157. 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: counterfeit-

ing; theft of interstate shipments; embezzlement from pension and welfare funds; extortion-ate credit transactions; fraud and related activity in connection with access devices;transmission of gambling information; mail, wire and financial institution fraud; procuringcitizenship or naturalization; obscenity; obstruction of justice; criminal investigations; andstate or local law enforcement; tampering with, or retaliating against a witness, victim or aninformant; 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 To-bacco - 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 violateRICO).

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ters,' 66 to "simple lease agreement[s]"' 167 and divorce actions. 168 Whilethese actions have been upheld, RICO's failure to require an "organizedcrime connection" caused many states to respond by creating their own "lit-tle" or "baby" RICO's with such a constraint.1 69

The Supreme Court attempted to limit RICO by holding that "[o]ne mustparticipate in the operation or management of the enterprise itself in orderto be subject to . . . liability."' 17° RICO actions against all members con-nected with La Cosa Nostra remain safe, however, as the Court stated thatthose "lower rung participants" and non-members of the enterprise are notfree from prosecution under RICO because the "operation or management"test is inclusive of those "'associated with' the enterprise." 171 Under suchholdings, the Act remains powerful enough to capture the elusive Godfatherwhile at the same time "the RICO net is woven tightly to trap even thesmallest fish . . ."'. Meanwhile, one of the largest complaints lodgedagainst RICO is its use against parties without any connection to organizedcrime whatsoever.173 In applying RICO, courts and commentators alike re-peatedly contend with two concepts - pattern and enterprise.

B. Pattern

In an effort to limit the use of RICO, Congress included a requirementthat the commission of the predicate acts be performed in what could beconsidered a "pattern of racketeering activity. "174 The Supreme Court in-terpreted Congress' intent by finding that RICO was designed to combatorganized crime, not isolated activity.' 75 In Sedima, S.P.RL. v. Imrex Co.,the Court stated that in order to constitute a RICO "pattern," the predicateacts must have "continuity plus relationship."' 176 The Court later held thatto 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 Considera-

tions, 27 SYRACUSE J. INT'L L. & COM. 303, 303 (2000); see also Gerber, supra note 16, at981-82.

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 note17, at 661.

174. 18 U.S.C. § 1962(a) (1994).175. See Sedima, 473 U.S. at 496 n.14.176. Id.


the predicate acts (1) "are related, and ... [(2)] amount to or pose a threat ofcontinued criminal activity." 177

To prove "relationship," the government must show that the predicateacts were somehow connected to one another. 78 This may be done byshowing "similar purpose, results, participants, victims, methods or com-mission and other interrelated distinguishing characteristics." '179 To prove"continuity," the prosecution must show "a series of related predicates ex-tending over a substantial period of time" or an open-ended threat of contin-ued racketeering activity in the future. 80 In cases involving organizedcrime members, proving the existence of the La Cosa Nostra family itselfwent a long way in establishing a connection between any two predicateacts. 181

C. Enterprise

RICO's emphasis on the enterprise distinguishes it from prior statutoryweapons against organized crime. 82 This new focus was created not onlyto change the criminal law propensity to notice only the individual, 83 butby structuring the statute in this manner, Congress was able to avoid anyconstitutional questions regarding criminalizing membership in an organi-

177. H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989). For adiscussion of circuit courts interpretations of the Supreme Court's pattern rulings, see Bour-geois, 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 havethe same or similar purposes, results, participants, victims, or methods of commission, orotherwise are interrelated by distinguishing characteristics.").

180. H.J., Inc., 492 U.S. at 242. For a more in-depth discussion on the pattern require-ment, including the relationship and continuity elements, and a six question analysis, seeBlakely II, supra note 126, at 39.

181. See United States v. Castellano, 610 F. Supp. 1359, 1379 (D.C.N.Y. 1985) ("mostof the enterprise members charged operated as a stereotypical organized crime group, engag-ing in the conventional variety of illegal activities, with the added role of serving in effect asa death squad. This is 'pattern' enough to satisfy the statute; indeed, it is the pattern thatmost influenced Congress' decision to adopt RICO.").

In some cases both the relatedness and the continuity necessary to show aRICO pattern may be proven through the nature of the RICO enterprise. Forexample, two racketeering acts that are not directly related to each othermay nevertheless be related indirectly because each is related to the RICOenterprise .... if the racketeering acts were performed at the behest of anorganized crime group, that fact would tend to belie any notion that theracketeering acts were sporadic or isolated.

United States v. Angiulo, 897 F.2d 1169, 1180 (1st Cir. 1990) (citing United States v. In-delicato, 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, at169-70; Blakely I, supra note 69, at 874.

183. See supra Part H.B.

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zation per se.' 8 4 RICO punishes group behavior more severely than indi-vidual behavior and is therefore a "status offense" by its very nature. 185

This result is justified in that "the crime committed by an enterprise, likethe crime of conspiracy, is worthy of greater punishment because collectiveaction toward an illegal end poses a greater risk to society than individualaction toward the same end."'186

RICO defines an enterprise as: "any individual, partnership, corporation,association, or other legal entity, and any union or group of individualsassociated in fact although not a legal entity." '18 7 A RICO enterprise is onethat exhibits "continuity, unity, shared purpose and identifiable struc-ture,"'1 88 as well as being "distinct from the pattern of racketeering activitythat is identified in the charge." '189 In United States v. Turkette,'9 ° the Su-preme Court held that RICO included both legitimate and illegitimate enter-prises,"' claiming that "insulating the wholly criminal enterprise fromprosecution under RICO is the more incongruous position." '92

Due to congressional intent levied directly against organized crime, 193

and the "association in fact" clause as interpreted in Turkette,194 prosecutorshave easily included organized crime entities within RICO's enterprise con-cept. Additionally, evidence introduced to prove the "pattern" requirementmay also prove the "enterprise" prong, and vice versa.' 95 In cases involv-ing La Cosa Nostra, courts have classified "crews,"' 19 6 "groups," 197 com-

184. See David M. Ludwick, Note, Restricting RICO: Narrowing the Scope of Enter-prise, 2 CORNELL J.L. & PUB. POL'Y 381, 387 (1993). One of the original proposals forRICO did include a provision criminalizing membership within La Cosa Nostra, but this wasrejected 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 RepresentativeBiaggi). This was most likely due to the original failure of Senator McClellan's proposedbill directly criminalizing membership in the Mafia. See Hearings on S. 2187 Before theSubcomm. On Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 89thCong., 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 ofunprecedented scope for an assault upon organized crime." 464 U.S. 16, 26 (1983); see alsoMadel, 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 PaulCastellano).


missions of mob leaders, 198 organized crime families,199 and the entire LaCosa Nostra syndicate, as falling within the RICO "associations in fact"clause. 2° Following the reasoning from the Supreme Court's decision inTurkette, °1 courts have established organized crime families as beingcriminals "associated for a common business purpose," with a "commoninterest in profiting from certain illegal activities. ' 20

2

The reasoning behind such broad holdings, as well as the tremendoussuccess enjoyed by government prosecutors and civil plaintiffs in RICOactions, has been due to the "liberal construction clause. '20 3 Despite criti-cisms of this section,2° the liberal construction clause has been supportedthrough congressional intent and affirmed by the Supreme Court.20 5 Em-phasizing its "remedial purposes," the Court demanded a broad reading ofRICO 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 lawcontaining such a demand20 7 that is in fact a "mandate. 208

IV. CRIMINAL RICO

A. Criminal RICO Generally - 18 U.S.C. § 1963

The criminal penalties for violating 18 U.S.C. § 1962 are set out in sec-tion 1963.20 Citing RICO's statement of findings, the Supreme Court inTurkette 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 "TheCommission").

199. See United States v. Locascio, 6 F.3d 924, 929 (2d Cir. 1993) (describing the Gam-bino Crime Family); United States v. Persico, 832 F.2d 705, 707-08 (2d Cir. 1987) (describ-ing 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 Interpretation and the Lib-eral 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).

Summer, 2002] 299


through stronger legal tools, more prohibitions aimed specifically at organ-ized crime, and harsher penalties.2 1 0 Offenders may be sentenced for up totwenty years, unless the included predicate acts could have resulted in a lifesentence, which in such cases life imprisonment would be appropriate.2 1

In the context of organized crime prosecutions, however, a recommendationto 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 de-fendants.2 1 3 In contrast, some commentators still believe that the "stability"afforded by the Guidelines has, in fact, enhanced federal prosecutions oforganized crime figures. 214 Either way, the Guidelines include the presenceof organized crime elements in a prosecution as grounds for an upwarddeparture.21 5

RICO's criminal sanctions also provide for forfeiture of "any interest theperson has acquired or maintained in violation of section 1962, ''216 as wellas any "interest in,' '1 17 "security of,' '2 1 "claim against, ' 'z 9 or "property orcontractual right of any kind affording a source of influence over,"'22 anycriminal enterprise the violator has been associated with. 2 Prosecutorsmay also place a restraining order or injunction upon such property before

filing an indictment or information, 222 essentially "freezing" the defen-dant's assets.2 23 However, this may be accomplished only after a showingthat the prosecution is likely to be successful in proving their case and "thatfailure to enter the order will result in the property being destroyed, re-

210. See Turkette, 452 U.S. at 589.211. See 18 U.S.C. § 1963 (a) (1994).212. 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 myopicallyon mechanical aspects of the offenses. Their formulaic scheme fails to ac-count for the overall picture of these defendants developed during three tri-als and in three thorough and exhaustive presentence reports. Thesecriminals must be punished in the proper context of their lives and theiroverall actions, not in the vacuum of 'units,' 'offense levels' and 'adjust-ments' 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.


moved from the jurisdiction of the court, or otherwise made unavailable forforfeiture."224

B. Criminal RICO Specifically - The Family Cases

The intent behind criminal RICO was to resolve an inherent problem inearlier law enforcement strategies. 22

' Before RICO the nature of both stateand federal criminal law was to define prosecutable offenses as specificcriminal acts.22 6 Combined with the nature of organized crime itself, inwhich bosses or dons can hide from prosecution by having "lower-levelmembers . ..carry[ing] out the majority of crimes," traditional criminallaws resulted in "the management [being] insulated from detection andprosecution. 227 Congress corrected this problem by enacting RICO to holdthese once "untouchable" criminals responsible for the acts of theirsubordinates.228

Since the development of RICO, "[tihere have been dozens of majorcriminal trials of Cosa Nostra bosses.., and more than a thousand prosecu-tions, with practically every one brought under RICO.230 However,none were more important or had a larger impact than the Family Cases ofthe 1980s.

1. The Family Cases

The Family Cases of the 1980s began with the Federal Bureau of Investi-gation's launching of Operation GENUS.231 Operation GENUS combinedthe forces of federal, state, and local agencies, including: the FBI, NewYork City detectives and officers, assistant U.S. attorneys, and the NewYork State Organized Crime Task Force. Together, these agencies set up

224. 48 U.S.C. §1963(D)(1)(B)(i) (1994).225. See Turkette, 452 U.S. at 589.226. See LYMAN & POTTER, supra note 34, at 482.227. Id.; see also Jeffries, supra note 47, at 1103

One characteristic of organized crime is that the most culpable and danger-ous individuals rarely do the dirty work. Although the organization's leadersare ultimately responsible for its crimes, they typically deal through in-termediaries and limit their own participation to behind-the-scenes controland guidance. Consequently, their guilt usually cannot be proved by thetestimony of victims or eyewitnesses or by forensic evidence and they neverconfess.

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.

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teams to investigate each of the Five Families.232 Each division of the oper-ation was charged with "detailing a family's 'table of organization,"' whichincluded the membership and status of family members,233 as well as the"structure, hierarchy, and activities of each of the crime families." '234 Thisintense effort produced tangible data about organized crime in New YorkCity in a manner that had never been so "thoroughly and systematicallycollected, assembled, and analyzed. 235

Much of this information allowed law enforcement to obtain multiplecourt-authorized bugs and wiretaps which provided additional evidence.236

Overall, Operation GENUS created a mass of details which "convincedsome mobsters that conviction was certain and that making a cooperationdeal with prosecutors was the only way to avoid a long prison term. '

"237 Asa result of this combined effort, all of New York's Five Families sufferedsevere losses at the hands of prosecutors wielding RICO charges.238 Thegovernment indicted the leaders of each family for "participat[ing] in theaffairs of an enterprise (their mob family) through a pattern of racketeeringactivity.

239

In United States v. Persico,24 the leadership of the Colombo OrganizedCrime Family was successfully prosecuted and incarcerated under RICO.2 4 'The defendants included: Carmine Persico,242 Gennaro Langellan, 243 Al-phonse Persico,24" Anthony Scarpati, John DeRoss, and Andrew Russo.2 4 5

The defendants were charged with "leading, managing and participating inthe Colombo Family racketeering enterprise, a professional criminal organi-zation that is one of the New York City constituent units of the AmericanMafia, by committing or agreeing to commit numerous crimes. 246

The government charged the defendants with predicate acts which in-cluded extortion and bribery in the construction and restaurant industries,bribery of IRS agents and federal prison officials, loansharking, distributionof narcotics, and the collection of unlawful debts.24 7 Additionally, all but

232. See JACOBS, US v. COSA NOSTRA, supra note 10, at 80.233. Jacobs, Final Chapter, supra note 4, at 163.234. JACOBS, US v. COSA NOSTRsA, supra note 10, at 80.235. Id at 81.236. See id. at 80.237. Jacobs, Final Chapter, supra note 4, at 163.238. See JACOBS, US v. COSA NOSTRA, supra note 10 at 81, 91 n.4.,239. Id. at 81; see also 18 U.S.C. § 1961(5).240. 832 F.2d 705 (2d Cir. 1987).241. See United States v. Persico, 832 F.2d 705, 707 (2d Cir. 1987).242. The boss of the Colombo Family. See id. at 708.243. The underboss. See id.244. The boss's son and a "made" member of the family. See id.245. All captains in the Colombo Family. See id.246. Persico, 832 F.2d at 707-08.247. See id. at 708.


one of the defendants were convicted for substantive RICO counts and allwere convicted of maintaining a RICO conspiracy.248

Due to the fact that John Gotti was the primary target, the prosecution ofthe leadership of the Gambino Organized Crime Family had a substantialeffect upon law enforcement and the public.249 After the death of Paul Cas-tellano, Gotti assumed leadership over the Gambino Family.25° Gotti wasthe "mob boss who, in the public mind, had come to symbolize the powerand persistence of organized crime."'25 ' Known as "The Dapper Don" dueto his "movie star" attitude, 252 Gotti had also been labeled as "The TeflonDon," "against whom criminal charges simply could not be made tostick. ' 253 It is this flamboyance, not seen since Al Capone,254 and the illu-sion of invincibility that made Gotti's eventual conviction and sentence oflife without parole such an enormous topic.

In fact, "[t]he initial indictment charged John Gotti (boss), Frank Locas-cio (consigliere), Salvatore Gravano (underboss) and Thomas Gambino(capo) with thirteen counts of racketeering, murder, illegal gambling, loan-sharking, and obstruction of justice. 255 In a move that turned out to beextraordinarily successful, the prosecution was able to disqualify Gotti'slong-time attorney Bruce Cutler, labeled as "house counsel" for the Gam-bino Organized Crime Family, from defending his client.256 In an evenmore surprising development, the underboss, "Sammy the Bull" Gravano,turned on his former boss and provided "especially damaging" testimonyfor the government. 257 "Gravano did the arithmetic on the charges againsthim and the possible outcomes: If he cooperated with prosecutors, hewould 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.3d924 (2d Cir. 1993). Additional defense attorneys Gerald Schargel and John Pollock weredisqualified as well. See id. at 553.

257. See Locascio, 6 F.3d at 930; see also JACOBS, US V. COSA NOSTRA, supra note 10,at 213.

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life. ' '258 As a result, the "Teflon Don" was no more and Gotti was con-victed and sentenced to life in prison.259

In addition to incarcerating organized crime figures for up to and includ-ing life sentences, 260 "lengthy prison terms under RICO constitutes a threatthat has been effectively used to gain the cooperation of defendants." 26'

Underbosses, such as Gravano, and acting bosses, including AlphonseD'Arco of the Lucchese Family and Carmine Sessa of the Colombo Family,have done "the arithmetic" and have testified for prosecutors. 262 The for-mer boss of the Cleveland La Cosa Nostra family, Angelo Lonardo, testi-fied in numerous organized crime prosecutions, providing a mass ofinformation for prosecutors, including information on the alleged rulingcouncil of La Cosa Nostra.263

The history of the Bonanno Organized Crime Family is replete with in-ternal strife and confusion as to the recognized leadership within the fam-ily. 2

' From the banishment of its leader, Joseph Bonanno, and the eventualcivil war which followed,265 to the execution of then boss Carmine "TheCigar" Galante,266 the position of boss in the Bonanno Organized CrimeFamily has been precarious. 267 Following this strife and the inevitable pub-lic notoriety, the Bonanno Organized Crime Family and many in its leader-ship positions were specifically cited in RICO's legislative history.268

The Bonanno Family was also the target of the greatest undercover oper-ation against La Cosa Nostra known today. Federal Bureau of Investigationagent Joseph Pistone, an undercover FBI agent known as Donnie Brasco,infiltrated the family for six years, and was removed right before becominginitiated as a "made" member.269 Pistone's testimony resulted in over 100

258. OC ENCYCLOPEDIA, supra note 9, at 259. Ironically, after leaving the federal Wit-ness Protection Program in 1997, Gravano, along with wife and daughter, were arrested forcontrolling a Phoenix, Arizona based drug ring. See Mob Hitman Turned Snitch Held ForInvolvement With Drug Ring, CHICAGO TRIBUNE, Feb. 25, 2000, available at LEXIS, NewsLibrary, 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.


convictions of organized crime figures and ultimately a $500,000 murdercontract was placed against him.27°

After the execution of then Bonanno boss Carmine "The Cigar" Ga-lante,271 and the subsequent installation of Phillip Rastelli as boss,272 thegovernment launched one of its largest actions against the Bonanno Organ-ized Crime Family in lieu of its inclusion within the famed "CommissionCase. ' 27 3 In United States v. Rastelli,274 the government charged the de-fendants with operating and managing the Bonanno Organized Crime Fam-ily through a pattern of racketeering. 275 Rastelli and sixteen otherindividuals, were charged with racketeering within the moving and storageindustry "including conspiracy to violate RICO, extortion, bid rigging, re-ceiving illegal employer payoffs, receiving unlawful payments to influenceoperation of employee benefit fund, mail fraud, perjury, obstruction of jus-tice, and arson. 2 76 The convictions of all defendants who appealed wereupheld.277

2. The Commission Case

United States v. Salerno278 was an attempt to "dismantle the structure [ofLa Cosa Nostra] that has been used since the beginning of organized crimein 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 "FiveFamilies Case, ' at one point indicted all five bosses of New York City'sfive families, and named more La Cosa Nostra leaders than had ever beenbrought together in one trial.282 In fact, Salerno has been called the "mostimportant organized crime case in U.S. history.'

"283

270. See OC ENCYCLOPEDIA, supra note 9, at 241; see also JOSEPH PISTONE & RICHARD

WOODLEY, MY UNDERCOVER LIFE IN THE MAIA: DoNm BRAsco (1987) (For a detailedlook at Pistone's undercover life with the Bonanno Organized Crime Family (and others)).

271. See Salerno, 868 F.2d at 529; see also discussion infra Part IV.B.2.272. See Ruggiero, 726 F.2d at 916.273. See Salerno, 868 F.2d at 528; see also discussion infra Part IV.B.2.274. 870 F.2d 822 (2d Cir. 1989).275. See Rastelli, 870 F.2d at 826.

276. Id.277. See id.

278. 868 F.2d 524 (2d Cir. 1989).279. 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.

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CRIMINAL AND CIVIL CONFINEMENT_ [.Vol. 28:279

However, before the suit was brought to trial, Gambino Family boss PaulCastellano was assassinated.284 Although the Bonanno Organized CrimeFamily had no official representative on the Commission,285 Phillip Ras-telli, then acting boss, was originally included but was subsequently severedfrom the case as he was being prosecuted on other charges.286 In the end,the case named: Anthony "Fat Tony" Salerno, 287 Anthony Corallo,288 Sal-vatore Santoro, 289 Christopher Furnari, 290 Carmine Persico,291 GennaroLangello,292 Anthony Indelicato, 293 and Ralph Scopo.294

Under RICO, the prosecution was able to target the so-called "Commis-sion" of La Cosa Nostra leaders, rather than just a collection of individualsor even a distinct crime family. The court defined the Commission as "anationwide criminal society which operates through local organizationsknown as 'families.' "295 The Salerno indictment contended that due to theexistence 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 violencein furtherance of these activities.296

Knowledge of the Commission was initially released to the publicthrough the autobiography of the Bonanno Crime Family boss, JosephBonanno, Sr.2 9 7 Bonanno even made public appearances to promote hisbook, including a spot on "60 Minutes. 298 However, he was later held incontempt 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 AnielloDellocroce 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 NorthAmerica. 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 alsoUnited States v. Salerno, 642 F. Supp. 967 (S.D.N.Y. 1986).


Attorney for the Southern District of New York, Rudolph Giuliani, to pro-claim: "[i]f Bonanno can write about a Commission, I can indict it.' ' 3°°

The theory behind the prosecution's allegations was that "the Cosa Nos-tra Commission constituted a criminal enterprise; that each defendant was amember or functionary of the commission; and that each defendant hadcommitted two or more racketeering acts in furtherance of the commis-sion's goals."30 1 To prove its case, the government "sought to place thedefendants within the history of Cosa Nostra. 3 °2 Taking "advantage of therequirement under RICO that it prove the existence of an organization infact, ' 30 3 the prosecution introduced evidence from the alleged beginning ofthe Commission in 1931304 after the Castellammarese War, to the "Con-crete Club" and current Mafia "Board of Directors" under indictment.3"5

The jury was presented with La Cosa Nostra's long history, including infor-mation 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 theCleveland La Cosa Nostra family, Angelo Lombardo, undercover FBI agentJoseph Pistone,30 7 and several state troopers who were involved in the infa-mous Apalachin incident.30 8 Courts consistently allow such expert testi-mony, especially to explain the operation, structure, membership, andterminology of La Cosa Nostra families.30 9

Through extensive evidence established at trial, the prosecution lead thejury to infer that the Commission's major purposes and historical functionswere to:

[Riegulate and facilitate the relationships... [among the Italian criminalsyndicate].... promote and coordinate joint ventures of a criminal nature,... resolve disputes among the families, ... [including leadership clasheswithin 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).

Summer, 2002]


ognition to 'bosses,' [approving new members, and establishing the rulesgoverning La Cosa Nostra.] 3 10

All defendants were charged with substantive RICO violations3 ' andRICO conspiracy counts, 312 which revolved around three general "Commis-sion schemes."3 3 The first 'scheme' has been labeled the "ConcreteClub," '3 14 or simply the "Club. 31 5 The Club was an illegal arrangementamong the Commission, several concrete companies, and the District Coun-cil of Cement and Concrete Workers, Laborers International Union of NorthAmerica.3 16 Through threats and acts of violence 3 7 and the "preclusionfrom or diminished opportunity for some existing or potentially economicbenefit,"3 8 the Commission extorted a "tribute" of two percent of the totalcontract price for all concrete jobs within New York City worth more thantwo million dollars.3 19 In return for such tribute, the Commission awardedconstruction jobs to the participating companies, and "guaranteed" laborpeace.32 ° Much of this was made possible by defendant Scopo's controlover the respective labor unions. 321 The result of the Club upon the indus-try was a fifteen percent rise in the cost of construction in New York.32 2

All of the defendants 323 were convicted on numerous extortion counts324

310. Salerno, 868 F.2d at 528. For a detailed analysis of the functions of the Commis-sion, see JACOBS, US v. COSA NosTA, supra note 10, at 96-97 (Appendix A, SalernoIndictment).

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 instillationof fear requirement of an extortion charge. See id. (citing Carbo v. United States, 314 F.2d718, 740-41 (9th Cir. 1963)).

318. Id. at 531. The court noted examples of concrete companies having to "pa[y] apenalty," and of being forced out of the concrete business, in addition to the threats of laborunrest and disruption of concrete supplies. See id.

319. Id. at 530-31. This does not mean that those contracts under two million dollarswere left untouched by La Cosa Nostra, rather these were left to individual families to ex-tract extra profits. See United States v. Persico, 832 F.2d 705, 708 (2d Cir. 1987). Defen-dant Persico unsuccessfully attempted to thwart his Commission Case conviction on doublejeopardy 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.


(which also satisfied the predicate acts requirement of RICO)3 25 in connec-tion with the Concrete Club scheme.3 2 6

The second scheme involved a loansharking 327 operation on Staten Is-land.328 In this scenario, a member of the Lucchese Organized Crime Fam-ily was acting without the permission of the Gambino Organized CrimeFamily in part of their "territory. 32 9 In order to facilitate the operation,two of the defendants intervened with the Gambino Family and resolved theconflict to the mutual satisfaction of all, a resolution which included a con-tinuing report of the loanshark's activities within Gambino territory. 330 Thecourt reasoned that even if the evidence was insufficient to show an activeparticipation in the physical loansharking activity, it was adequate to estab-lish a conspiracy, with defendants Corallo and Santoro as active co-conspir-ators. 3 The court held that the evidence was sufficient to "establish therequired nexus or connection between [defendant's] dispute-resolving activ-ity ... and the Commission enterprise.'

"332 The evidence proved the defen-dant's actions "(1) constituted aiding and abetting of loansharking, and (2)furthered the goals of the commission as an enterprise. 333

The final Commission scheme resulted in the murders of then BonannoFamily boss Carmine Galante and associates Guiseppe Turano and LeonardCoppola. 33 4 This endeavor was shown to be an attempt by the Commissionto end the internal disputes within the Bonanno Family between Galanteand Rastelli. 335 Although only defendant Indelicato was charged with themurders as predicate acts, 3 3 6 the prosecution sought to prove a connectionbetween the murders and the functions of the Commission.3 3 7 The courtreiterated two tests which may be used to establish a connection to a RICOenterprise: either the defendant "'is enabled to commit the predicate of-

325. 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 associatedwith 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" re-quired 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 forpattern requirement).

337. See Salerno, 868 F.2d at 533.

Summer, 2002]

CRIMINAL AND-CIVIL CONFINEMENT [Vol. 28:279

fenses solely by virtue of his position in the enterprise or involvement in orcontrol over the affairs of the enterprise,"' or "'the predicate offenses arerelated to the activities of that enterprise.' "338 Through various pieces ofevidence, the government connected the Galante murders with the Commis-sion's dispute resolution and leadership recognition functions.339 In fact,evidence showed that the Bonanno Crime Family retained "autonomouscontrol for the first time in a decade" after the Commission had sanctionedthe murder of Galante and recognized Philip Rastelli as the Bonanno Fam-ily boss.340 Therefore, the court upheld the jury's determination that themurders "occurred 'in the conduct of [the Commission's] affairs' within themeaning of 18 U.S.C. §1962(c) .. 341

The key to the government's successful prosecution of all of the defend-ants was its ability to tie the actions of the individuals to the RICO enter-prise in question-the Commission. Through the establishment of"substantial evidence" 342 the government convinced the jury that "thenexus of all of these acts is the continuous existence both of the Commis-sion and of its goals and means and methods of attainment of thosegoals. 343 This was accomplished through evidence of the Commission'shistorical functions. The Concrete Club was shown to be operated by theCommission within its regulation and facilitation of relationships betweenfamilies, and more specifically the "promot[ion] and coordinat[ion of] jointventures of a criminal nature. ' 3" 4 The protection of the Lucchese Family'sloansharking activities illustrated the Commission's dispute resolution ac-tivity.345 And finally, the Galante murder was an execution of the Commis-sions dispute resolving mechanisms regarding leadership clashes, inaddition to its formal recognition of a "boss" power.34 6

In the end, the government imposed convictions upon all of the defend-ants due to the established proof that "each defendant to a greater or lesserdegree was not only aware of the existence of the Commission but alsoassociated himself with it with more than a general knowledge of its mul-tifaceted activities, although no defendant is alleged to have participated inall of them. ' 347 By connecting the actions of the individuals to the func-

338. Id. (citing United States v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980)).339. See id. at 533.340. See JACOBS, US v. COSA NOSTRA, supra note 10, at 84.341. Salerno, 868 F.2d at 533 (alteration in original).342. See id. at 528.343. United States v. Salerno, 1986 WL 1450, at *1 (S.D.N.Y. Jan. 30, 1986).344. United States v. Salerno, 868 F.2d 524, 528 (2d Cir. 1989).345. See id. at 532.346. See id. at 533-34.347. 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 ofthe largest and most successful criminal RICO convictions.348

All of the defendants were convicted after an eleven-week jury trial.349

All charges were affirmed on appeal, except for Indelicato's substantiveRICO charges. 350 Each defendant (excluding Indelicato) 351 was sentencedto a total of one hundred years imprisonment. 35" Although the appellatecourt noted that such sentences held a "symbolic quality, ' 353 it did not findthe harsh sentences to be unconstitutional, mechanistic, or uniform in itsapplication. 354 Two of the defendants received the maximum criminal finesallowed under RICO,3 55 with the combined criminal fines imposed for alldefendants surpassing $1,700,000, not including the assessed costs of pros-ecution.3 56 In the end, the judge, jury, and appellate court concluded thatbeing a La Cosa Nostra boss was a crime which merited life imprison. 357

In Salerno, the court allowed for an even broader form of liability, hold-ing any member of the Commission responsible for any of its actions as awhole. Therefore, leaders "would face expansive RICO liability simply fortheir status in organized crime," and were no longer insulated through theacts of their inferiors.358 In fact, commentators have stated that the Com-mission Case and the Family Cases in general used RICO to convict "mob-sters simply for being mobsters ...

V. CiVIL RICO

A. Civil RICO Generally - 18 U.S.C. § 1964

Unlike the criminal side of RICO which, although admittedly more pow-erful than its predecessors, allows for incarceration or forfeiture, the civilend of RICO allows prosecutors and judges to develop creative solutionsfor law enforcement predicaments that prior legislative was unable to solve.By focusing on a remedial cure, rather than simply punitive, civil RICOmore 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 528.357. See JACOBS, US v. COSA NOSTRA, supra note 10, at 79.358. Id.; see also Salerno, 868 F.2d at 545 (Bright, J., dissenting).359. See JACOBS, US v. COSA NOSTRA, supra note 10, at 90; see also JIMMY GURULE,

COMPLEX CRIMINAL LITIGATION: PROSECUTING DRUG ENTERPRISES AND ORGANIZED CRIME

(2000) (providing a detailed look at the use of RICO in "complex" criminal prosecutions).


suitable than mere incarceration or forfeiture. Courts may order divestingthe defendant of any direct or indirect interest in an enterprise, imposingrestrictions upon further activities, creating due provisions for innocent vic-tims.16° The most extreme remedy allows for the dissolving or reorganizingof the enterprise. 6 Civil RICO also allows for a private individual, "in-jured in his business or property by reason of a violation of section 1962,"to sue and recover treble damages.362 This section, however, has never

363 in1been used against organized crime, and in practicality may never be.36

For much of the same reasoning, criminal forfeiture is rarely successfulagainst such defendants.365 Despite what some courts have suggested,RICO is not primarily a criminal and punitive statute, rather it is, or shouldbe, a predominantly civil and remedial tool. 36 6

B. The Union Cases

1. In General

"Labor, like Israel, has many sorrows." 367 Unions are "by origin andnature . . . 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 Actwas enacted primarily, although not exclusively, to halt organized crime'sincursion into legitimate organizations" 369 such as labor unions. Congressspecifically recognized the "threat to the American economic system" thatorganized 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, Final Chapter, 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 Re-

form, 43 VAND. L. REV. 769, 798 n.62 (1990) ("Practically, however, the cause of action isunlikely to be of widespread utility: mobsters who commit violent crimes do not make idealdefendants 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 problemwith 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 Organizationsand 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).


"There have been numerous legislative attempts to control labor racke-teering at both the state and federal levels."37' Included within these are theLabor-Management Reporting and Disclosure Act (LMRDA),3 7 2 the HobbsAct,373 the Taft-Hartley Act,374 acts detailing the fiduciary responsibility oflabor organization officers,37 5 and prohibitions against theft and embezzle-ment from employee benefit plans.376 RICO, however, was established tocompensate for specific failures inherent within these statutes, mainly the"difficulty in demonstrating the nature and specific elements of the allegedillegal 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 personalbenefit .... 378 Under Civil RICO's "reorganization" clause,37 9 prosecu-tors and judges can purge organized crime influence from unions whichwere, much like the Godfathers who ultimately decided their fate, "un-touchable" before RICO.38 ° The most common method of "reorganizing"under civil RICO is to establish a trusteeship for "an appropriate period oftime,'381 in order to create a new leadership free from corrupting influ-ences. 382 Ideally, reorganization under RICO returns the organization'scontrol to its law-abiding members.383 Trustees have been granted "wide-ranging investigative powers," and some with the power to instill discipli-nary actions, creating a "powerful and effective tool. 384

The FBI has stated that the so called "Big Four," which consists of Inter-national Longshoreman's Association (ILA), the Hotel Employees and Res-taurant Employees International Union, the International Brotherhood ofTeamsters (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 Racketeer-

ing, 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, UnitedSlate, Tile & Composition Roofers Ass'n, 686 F. Supp. 1139, 1171 (E.D. Pa. 1988) (grantinga preliminary injunction), afftd, 871 F.2d 401 (3d Cir. 1989); United States v. BonannoOrganized Crime Family, 683 F. Supp. 1411, 1453-54 (E.D.N.Y. 1988) (issuing a consentjudgment involving Teamsters Local 814); Liebman, supra note 10.

383. See Liebman, supra note 10, at 133.384. GOTHAM, supra note 17, at 225.

Summer, 20021


"substantially influenced and/or controlled by organized crime."3 85 Addi-tionally, the New York State Organized Crime Task Force has noted "[a]significant percentage of the City's construction unions ... are stronglyinfluenced or even controlled by racketeers connected to Cosa Nostra or-ganized crime families." '3 86 One example of the damage caused by suchinfiltration is the "mob tax" which passed on to the industry to supportorganized crime, such as the hundreds of millions of dollars siphoned fromthe waste hauling industry alone.3 87 Because of the power of RICO actions,many of the cases brought by the government against organized crimemembers and corrupted industries have been resolved through negotiatedconsent decrees, often involving court-appointed trustees to oversee the im-posed reforms.388

Often it is a combination of crime families, rather than an individual fam-ily, which has infiltrated and corrupted a legitimate business.389 In 1990,the government instituted an action involving both the Gambino and Geno-vese Families concerning their control over the ILA and therefore, the entireNew York and New Jersey waterfront.39 ° In fact, the families' influenceran down to Miami, Florida. 391 The goyernment successfully enjoined thedefendants from any activity on the waterfront, from any contact, directly orindirectly, with this union or any other, and from having contact with anymembers of La Cosa Nostra.392 Additionally, the government recovered "adisgorgement of the proceeds of any violations of the civil RICOstatute.

393

The government has "seriously disrupted" La Cosa Nostra's influence inmany unions across the country using civil RICO actions.394 In UnitedStates v. Hotel Employees and Restaurant Employees, Intern. Union,395 aconsent decree was issued which ended twenty-five years of organizedcrime domination over a union.3 96 The Colombo Organized Crime Familywas 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 Mo-

relle, 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).


and the Bonanno Crime Family's influence over the Teamsters was alsoreduced.398 A combined domination over the Long Island waste-haulingcartel by the Gambino and Lucchese Crime Families was dispelled by a1992 government initiated civil RICO action.3 99 While this is only a smallnumber of the many suits initiated by the government against infiltratedunions, the first is still considered the most influential government actionagainst a corrupted union.' °

2. United States v. Local 560 (IBT)

United States v. Local 560, International Brotherhood of Teamsters 4' isconsidered "the most important civil labor racketeering case ever broughtby the Justice Department against a union local." 2 The trial lasted fromJanuary 25, 1983 to May 17, 1983, and included nearly 8,000 pages of trialtranscript.403 The presiding Justice, Judge Ackerman, eloquently stated inhis opinion:

[i]t is not a pretty story. Beneath the relatively sterile language of a drylegal opinion is a harrowing tale of how evil men, sponsored by and partof organized criminal elements, infiltrated and ultimately captured Local560 of the International Brotherhood of Teamsters, one of the largest localunions in the largest union in this country. This group of gangsters, aidedand abetted by their relatives and sycophants, engaged in a multifacetedorgy of criminal activity." °

Part of Judge Ackerman's distaste with the situation surrounding Local 560was the fact that a number of the defendants, mainly those who held high-level positions of authority within the union, had previous RICO and otherconvictions, 40 5 including those regarding prior labor violations. 4 6 Addi-tionally, despite widespread knowledge of the intense corruption that infil-trated Local 560, no internal action was ever taken to rid the union of suchpractices.40 7 Indeed, statements were made regarding a "patently false andclearly unconvincing" belief that nothing could be done to end thecorruption.40 8

398. See generally United States v. The Bonanno Organized Crime Family, 683 F. Supp1411 (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.

Summer, 20021


The government alleged that Local 560 of the International Brotherhoodof Teamsters ("Local 560") had become a "captive labor organization"4 9

mainly due to Anthony and Salvatore Provenzano, with help from, amongothers, Joseph Sheridan, Josephine Provenzano, J.W. Dildine, StanleyJaronko, Thomas Reynolds, Sr., and Michael Sciarra.410 The governmentalleged that the IBT was under the control of the "Provenzano Group," ledby another defendant, Anthony Provenzano, and charged all the defendantswith substantive RICO violations as well as RICO conspiracy charges.4 'The government successfully proved that the Provenzano Group, in addi-tion 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 system-atic acts of intimidation.4" 4 Predicate acts included "organized gambling,hijacking, extortion, and the infiltration and exploitation of a labor organi-zation through murder, intimidation, fraud and corruption."'415 In fact, theProvenzano Group's use of violence for intimidation continued during thecourse of the trial.416

Evidence produced at trial proved that the leader of this group, defendantAnthony Provenzano, was a "made-member" of the Genovese OrganizedCrime 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 bydefendant Anthony Provenzano, aided and abetted by successive defendantmembers of the Local 560 Executive Board, of approximately $223,785 inLocal 560 funds 'by means of false and fraudulent pretenses, representa-tions, and promises, and pursuant to a scheme and artifice to defraud... ;'(3) the wrongful receipt by Provenzano Group members of payments, loansand other things of value from certain employers... in exchange for 'laborpeace'; (4) the unlawful receipt by defendant Anthony Provenzano, aidedand abetted by Salvatore Briguglio, of certain fees, kickbacks, gifts or thingsof value in the form of certain Florida real estate because of, and with intentto be influenced with respect to, his actions and decisions relating to theBenefit Fund; and (5) the wrongful receipt by defendant NunzioProvenzano, together with Irving Cotler and others, as associates of theProvenzano 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.


family's hierarchy.4" 7 Additionally, evidence adduced further control ofthe union by the Genovese Family.4" 8 The indictment specifically chargedthe defendants with "aid[ing] and abet[ing] .. . past and present members ofthe Executive Board ... unlawfully acquir[ing] and maintain[ing], directlyand indirectly, an interest in and control of the Local 560 Enterprise througha pattern of racketeering activity in violation of § 1962(b) of the RICOAct."4 1 9 Succinctly put, the government charged the defendants with con-trolling the Local 560 with the "end of infiltrating, dominating and exploit-ing" that enterprise.42 °

The Court made a detailed listing of twenty-eight specific acts by thedefendants which led to a "climate of intimidation" within the union andallowed them to exert full control over Local 560.421 The defendants werecharged with engaging in a number of offenses traditionally found inmaligned unions, such as the pilfering of welfare and pension funds, ac-cepting kickbacks, appointment of members to high paying positions (oftenwith no observable duties - known as "ghost" or "no-show" jobs), as wellas a host of other offenses.422

During the initial stage of this "unprecedented case, 4 2 3 the court ap-proved a consent order between the parties in which a number of the mem-bers of the Provenzano Group were permanently enjoined from any furtherrelations with this union424 or to act in any such capacity that would "domi-nate, control, or otherwise influence the affairs of any labor organization orany employee benefit plan .... 425 In explaining his reasoning for grantingthe multiple injunctions, Judge Ackerman discussed the history of incarcer-ation of union leadership and the continuing control of Local 560 by Geno-vese Family associates despite multiple prosecutions of the leadership ofthe group over a twenty-two year period.42 6 Without the injunctions, thecourt reasoned that the Provenzano Group's "criminal business' as usual"would reoccur within the union.427 The court realized that criminal sanc-tions were insufficient to end the control of the Genovese Family over Lo-cal 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 takenby 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.

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violations of 18 U.S.C. § 1962, and these violations are likely to reoccur aslong as Local 560 remains a captive labor organization. '"428

The court concluded that the defendants had "conspired to participate inthe conduct of the affairs of the Provenzano Group Enterprise through apattern of racketeering activity. '4 29 This Group, "which in essence is acarefully structured and well disciplined conspiracy,"43 had agreed to "ac-quire and maintain control of the Local 560 Enterprise through a pattern ofracketeering activity."43 Local 560, including its benefit funds and sever-ance pay plan, was also found to be an enterprise under the definition of acriminal enterprise for RICO purposes.43 2 However, because the individualoffenses were done in order to promote the Provenzano Group, and not thelabor union itself, the court dismissed the union as a defendant, except in a"nominal" manner to effectuate the remedies necessary to free Local 560 ofthe organized crime infestation that had occurred.43 3

In bold fashion, Judge Ackerman stated "[r]acketeering is the cancer thatalmost destroyed the American trade-union movement," '434 and decided "touse a judicial scalpel to excise this malignancy from this union and itsmembers. '435 In doing so, the court listed twenty-three separate reasons toenforce an injunction enjoining Salvatore Provenzano from any activitywithin Local 560.436 Injunctions were also imposed against AnthonyProvenzano, 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 enjoinedfrom union participation.43 8

In an unprecedented move,439 Judge Ackerman removed the entire Exec-utive Board of Local 560, citing mainly their refusal "to evaluate objective"the criminal conduct of fellow officers or business agents, or to instituteprophylactic measures to ensure as much as possible that past criminal con-duct will not be repeated."" 0 In its place, the judge implanted a trustee "toadminister the Local during a curative period of appropriate length," untilsuch 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.


union democracy within Local 560. "441 The trustees imposed in unioncases, like the one in Local 560, are usually former prosecutors or federaljudges who bring "a day-to-day government presence into the heart of cor-rupt organizations. '"442

Judge Ackerman reasoned that this move was necessary to effectivelydispel the existing atmosphere of intimidation within Local 560, to restoreunion democracy, and to ensure (to the extent possible) that racketeers donot obtain positions of trust within the Local."" 3 The goal, in the court'sopinion, was to contravene and avoid future "irreparable harm to the mem-bership of Local 560, its contract employers, and the public."' 4 JudgeAckerman also ruled that this period of trusteeship would be followed by asupervised general election," when the court determines "sufficient politicalfreedom has been restored" (through the advice of the assigned trustee)within the union.445

3. United States v. Cappetto

Besides incarcerating family members and purging legitimate businessesfrom the control of organized crime elements, law enforcement can do moreto effectively, and truly, dismantle La Cosa Nostra in America. With crea-tive use of civil RICO, especially the reorganization and dissolutionclauses, 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 aninjunction against a gambling enterprise, imposing a restriction upon theactual running of the illicit activity itself.450 Included within the injunc-tions was a divestiture of interest from the building where the enterprisewas run, requirements of disclosure concerning information related to therunning of the enterprise, and numerous future conditions imposed upon themembers of the enterprise.451

The court also upheld and supported the government's ability to enforcecivil injunctions against criminal activities. 4 2 The Supreme Court later

441. Id.442. Jacobs, Final Chapter, supra note 4, at 171.443. Local 560, 581 F. Supp. at 326.444. Id. at 337.445. Id. at 326.446. See 18 U.S.C. § 1961(1).447. See 18 U.S.C. § 1962(d) (1994).448. See 18 U.S.C § 1964.449. 502 F.2d 1351 (7th Cir. 1974).450. See id. at 1355.451. See id.452. 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

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agreed, stating: "As a general proposition, however, the civil remediescould be useful in eradicating organized crime from the social fabric,whether the enterprise be ostensibly legitimate or admittedly criminal. 453

In fact, the government could potentially bring both criminal and civil ac-tions against a party.4 54 The Cappetto Court determined that civil injunc-tive relief against criminally culpable behavior is appropriate when "apreponderance of the evidence shows a likelihood that the defendants willcommit wrongful acts in the future, a likelihood which is frequently estab-lished by inferences drawn from past conduct." '455 With RICO's predicateact and pattern of racketeering requirements, "past conduct" is almost cer-tain to be established, making civil injunctions more readily applicable.

Cases such as Cappetto show the potential of looking beyond traditionalcriminal remedies and devising strategies which "effectively superimpos[e]the civil realm of law atop the criminal realm. '456

V. THE AFTERMATH

On November 19, 1986, after the ruling in Salerno, Prosecutor RudolphGiuliani stated: "'[t]he verdict reached today has resulted in dismantling theruling council of La Cosa Nostra.""" The future Mayor of New York Cityalso declared: "'the mafia is a dying organization and will cease to be amajor threat within ten years.' "458 Giuliani was not the only one confidentin the long-term results of the Commission Case. The presiding judge,while condemning the defendants during sentencing, admitted the punish-ment imposed was "fashioned to speak to" future crime bosses.459

In a subsequent prosecution of Vincent "The Chin" Gigante, 460 it wasfound that Gigante had been the actual boss of the Genovese OrganizedCrime Family at the time of Salerno.46' Facts also revealed that except forthe day-to-day operations of the Genovese Organized Crime Family, theactions 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 areaccompanied 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. Mastin, supra note 16, at 2310.457. JACOBS, US v. COSA NosTRA, supra note 10, at 86, (quoting Rudolph Giuliani).458. Joseph E. Bauerschmidt, Note, "Mother of Mercy - Is This The End of RICO?" -

Justice Scalia Invites Constitutional Void-for- Vagueness Challenge to RICO "Pattern," 65NOTRE DAME L. REv. 1106, 1162 (1990) (citing Rudolph Guiliani in N.Y. TIMEs, Mar. 3,1987, at B3 col. 2).

459. Id.460. See United States v. Gigante, 982 F. Supp. 140 (E.D.N.Y. 1997).461. See id. at 145; see also GoTHAM, supra note 17, at 9.462. See Gigante, 982 F. Supp. at 151.


continued to control the "Commission of mob leaders coordinating mafiaactivities" even after the 100-year sentences were imposed upon the otherprevious members.463

Subsequent investigations and prosecutions of organized crime figureshave provided information of continued cooperation and joint criminal ef-forts between families. 4" Although some have claimed that the Commis-sion "reputedly has ceased to function, 4 65 given the condensed area wherethe Five Families engage in the same rackets and illegitimate industries (aswell as legitimate) and the rarity of interfamily violence, it stands to reasonthat even after Salerno, some form of the Mafia "Board of Directors"466

continues to exist4 67 and facilitate the functions described in Salerno.4 68

In May of 1996, a reputed boss of the Colombo Organized Crime Familyplead guilty to defrauding a Swiss and New Jersey based company out of1.2 million dollars.4 69 In 1999, the Bonanno, Colombo, and Genovese Or-ganized Crime Families were all found to be involved in multiple stockmanipulation scams worth millions of dollars.470 In June of 1999, membersof the Bonanno and Gambino Organized Crime families were indicted forthe largest securities fraud case in United States history.47 1 On September6, 2000, several members of the Lucchese Organized Crime Family werecharged with siphoning millions of dollars from New York's constructionindustry.4 72 On December 5, 2001, seventy-three members of the GenoveseLa 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 manu-facturing 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 available at LEXIS, News Library, US News & World Report File; see alsoHumberto Cruz, More Cases Expected In Fraud Investigation, SUN-SENTINEL FT. LAUDER-DALE, 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 Offi-cials 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 CaseShows Mob's Move Into Wall Street - Large Number of Defendants Raises Eyebrows in

Industry, THE WALL STREET JOURNAL EUROPE, June 16, 2000, available at 2000 WL-WSJE21064124.

472. See Michael Ellison, New York Arrests Signal Resurgence of Mafia, THE GUARD-IAN, September 8, 2000, available at LEXIS, News Library, The Guardian File.

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for over $14 million in illicit revenue, as well as uncovering information onpotential future criminal activities of the family.4 73 The "Gold Club" caseinvolving members of the Gambino Family as well as the continuing ex-ploits of ex-Gambino Family member Salvatore Gravano 47

1 are in the newsdaily,4 75 laying credence to the statement that "[i]n the United States, mobdevelopments continue to make front-page headlines." '476

Until such events are no longer prevalent, proof of the involvement of anorganized crime family will likely continue to satisfy RICO's pattern re-

quirement. These facts seem to show a continuing relationship of organizedcrime families in New York City rather than isolated incidents or randomcriminality. The statement of findings prefacing the Organized Crime Con-trol Act outlaying the detriments of organized crime on society4 77 are asrelevant today as they were before the enactment of RICO.4 78 Some havequestioned the overall effectiveness of law enforcement initiatives aimed atcombating organized crime, including RICO.47 9 It seems that rather thandeclaring 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, NYTIMES, 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 highlysophisticated, diversified, and widespread activity that annually drains bil-lions of dollars from America's economy by unlawful conduct and the ille-gal use of force, fraud, and corruption; (2) organized crime derives a majorportion of its power through money obtained from such illegal endeavors assyndicated gambling, loan sharking, the theft and fencing of property, theimportation and distribution of narcotics and other dangerous drugs, andother forms of social exploitation; (3) this money and power are increas-ingly used to infiltrate and corrupt legitimate business and labor unions andto subvert and corrupt our democratic processes; (4) organized crime activi-ties in the United States weaken the stability of the Nation's economic sys-tem, harm innocent investors and competing organizations, interfere withfree competition, seriously burden interstate and foreign commerce, threatenthe domestic security, and undermine the general welfare of the Nation andits citizens; and (5) organized crime continues to grow because of defects inthe evidence-gathering process of the law inhibiting the development of thelegally admissible evidence necessary to bring criminal and other sanctionsor remedies to bear on the unlawful activities of those engaged in organizedcrime and because the sanctions and remedies available to the Governmentare 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.


shot,' "480 and is "not even close to dying.""'81 In fact, "with respect to thosecriteria that best define the harm capacity of criminal organizations, it isstill pre-eminent,' ' 82 and therefore "[i]t takes courage or perhaps foolhardi-ness to pronounce the death of Cosa Nostra .... 483

To illustrate the ineffectiveness of prior law enforcement efforts againstorganized crime, Giuliani discussed the long string of prosecutions againstthe Genovese Organized Crime Family's bosses, including Luciano, 484

Frank Costello,"85 Vito Genovese, 486 Frank "Funzi" Tieri,"87 and Anthony"Fat Tony" Salerno. 88 Guiliani stressed the "utter futility" of these indi-vidualized prosecutions by elaborating upon the continuing existence of theGenovese criminal enterprise despite the successful incarcerations of itsleadership."89 However, since Guiliani's statement, Louis "Bobby"Manna,"9' Thomas DePhillips (of the New Jersey faction), 91 Vincent "TheChin" Gigante,"92 and Liborio Bellomo,493 all bosses or acting bosses of theGenovese Organized Crime Family, have been convicted, mostly due to theRICO statute."9 " Additionally, John Digilio was killed while serving as act-ing boSS495 and Dominick "Quiet Dom" Cirillo is alleged to be the currentacting boss of this continuing criminal venture. 4 96 There is also informationthat 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 RickMosquera, FBI's organized crime chief).

481. An Offer They Can't Refuse, TIME MAGAZINE, Nov. 25, 1991, at 66, available atLEXIS, News Library, Time Magazine File (citing the head of the criminal division of theNew 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. Cos-

tello, 255 F.2d 876 (2d Cir. 1958); as well as for refusing to testify before a grand jury afteran attempt upon his life. See People v. Costello, 161 N.E.2d 741 (N.Y. 1959). Later, hiscitizenship 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 fornarcotics 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 2000WL 21304954.

496. See SiFAris, supra note 72, at 82-83.

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and two members of this ruling class have recently been indicted.497 Al-though Giuliani placed great faith in RICO's ability to circumvent La CosaNostra permanently,4 98 it seems criminal RICO prosecutions of La CosaNostra leaders are more disruptive to the illegal enterprises than earliercriminal prosecutions.

Civil RICO, "which [is] generally prospective in nature, focus[es] di-rectly upon the racketeer to eliminate his sources of influence and con-trol." '49 9 However, civil RICO actions are not a quick fix. In fact, theefforts to rid Local 560 from the hands of an organized crime entity re-quired over ten years of litigation. 5

' Further action after Judge Acker-man's original holding was needed to retain Local 560's freedom from LaCosa Nostra influence, especially enjoining additional members connectedto organized crime outfits from participation within the union.5' By fol-lowing criminal convictions with a civil RICO action,50 2 law enforcementwas 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 com-mended at the end of his stint for "planting the seed of honest trade union-ism within Local 560," and such side benefits as increased membership,benefits, wages, and elimination of once rampant waste caused by La CosaNostra's influence.504 Law enforcement continued its vigilance with thehelp of the appellate court, which affirmed an order requested by the gov-ernment "for additional relief ... necessary in order to prevent future racke-teering violations involving the continued domination ... and exploitation... of Local 560."105 Until the use of civil RICO and the court-appointedtrusteeships imposed in force during the 1990s, it had been impossible toremove La Cosa Nostra from an infiltrated union.50 6 However, and mostimportantly, 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 makingdeterminations 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 renderedin favor of the United States in any criminal proceeding brought by the United States underthis chapter shall estop the defendant from denying the essential allegations of the criminaloffense 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.


away from union infiltration and are focusing upon other criminalendeavors.5 °7

While such cases may be "lengthy and complex, 5 °8 the long-term bene-fits may outweigh those burdens. Instead of merely freeing positions withinthe criminal organizations for other members to fill, i.e. a "traditional prose-cution," 5°9 successful civil actions target positions and entire organizationsin an attempt to free them from the clutches of La Cosa Nostra perma-nently, rather than simply removing individuals temporarily. This is essen-tial in any bid to truly eradicate a criminal organization, as infiltration ofsuch legitimate businesses affords organized crime families more than justanother avenue of immense wealth, political power, and legitimacy withinthe community.510 Additionally, families are able to conceal their illicitactivities, and launder illegal profits while providing a source of reportablelegitimate income. 51' La Cosa Nostra's hold over these institutions is morelong 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 to-ward the actual "syndicates and systemic criminality," providing a uniquetool to eradicate La Cosa Nostra.512

Prosecutors may be even more successful by utilizing both portions ofRICO in a law enforcement initiative. "The concepts of investigation, pros-ecution and incarceration must be employed as part, and only as part, of abroader predetermined strategy that consists and adopts any remedy orcombination of remedies, (criminal, civil, loss preventive, legislative, orother) best designed to limit or deter organized crime activity. 513 Onestrategy is to initiate a civil RICO action "followed close on the heels of thecriminal 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 Familycapo (captain), and others, with a civil action which, amongst other reme-dies, 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 couldremove 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, Operational Issues In Organized Crime Control, in MAJOR IS-

SUES 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.

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receiverships.5 1 6 Additional benefits of such actions include the proscrip-tion against a defendant denying any "essential allegation" proven in acriminal proceeding in a subsequent civil action5 17 and the ability of judgesto impose the costs to implement civil RICO remedies upon thedefendants.518

VI. CONCLUSION

Incarceration has long been accepted as an ineffective tool against organ-ized crime enterprises.519 Although commentators have praised RICO forfocusing upon "the on-going capacity of a criminal organization ... ratherthan specific substantive offenses,"520 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 previousconvictions.52" ' Highly publicized criminal convictions have sent gangstersaway for periods well beyond life sentences, 522 only to have new leadersplaced in charge.5 23 The criminal law's retributive goals which include de-terrence, incapacitation, and utilitarian notions of rehabilitation 524 are seem-ingly useless, as organized crime members, "beyond any doubt," continuetheir organized criminal activities upon release, and will even "try to par-ticipate in gang activities from prison. "525

Another example of the ineffectiveness of criminal incarceration is thatonce imprisoned, many organized crime figures continue to run their crimi-

516. See id. Matty the Horse and his cohorts' criminal convictions for both substantiveand conspiracy RICO counts were affirmed. lannello and company were found to be skim-ming profits as well as a number of other illegal activities involved in the running of anumber 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 toimpose costs such upon defendants where it would result in an undue hardship and be ineq-uitable considering the nature of the predicate acts).

519. See United States v. Sessa, 821 F. Supp. 870, 873 (E.D.N.Y. 1993) (emphasisadded).

520. Mark H. Moore, Organized Crime As A Business Enterprise, in MAJOR ISSUES INORGANIZED CRIME CONTROL 51, 52 (Herbert Edelhertz ed., 1987).

521. See Giuliani, supra note 42, at 106. See generally, United States v. Angiulo, 897F.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).524. See JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 29-77 (2d ed.

1999).525. Sessa, 821 F. Supp. at 873.


nal enterprises from within penal institutions.526 For example, even afterthe satisfaction of finally convicting the "Teflon Don," 527 one must wonderhow much of an actual effect this had on the Gambino Organized CrimeFamily when there are reports that Gotti continued to run the family fromMarion Prison.528

While a single RICO prosecution may have led to the convictions of theentire Colombo Organized Crime Family leadership, 529 recent activitiesshow this family is still in (illicit) business.5 3° The Colombo Family hascontinued to engage in criminal activities; in fact, this formerly incarceratedleadership- the "Persico faction"- which had been supposedly dismantled,has continued to fight for domination of the criminal association's enter-prises. These statements are not intended to contradict or criticize crimi-nal RICO's enormous effect upon organized crime.532 While the structureof La Cosa Nostra families once protected its leadership, RICO allows pros-ecutors to use that structure against them. "These rules and customs ofCosa Nostra, which traditionally insulated the bosses from prosecution, nowwere offered as evidence proving the existence of an enterprise that passedon its structure, rules, and criminal franchises from generation to genera-tion."'533 "With the passage of RICO, the entire picture of the organiza-tion's criminal behavior and the involvement of its leaders in directing thatbehavior could be captured and presented." '534 Criminal sanctions are un-doubtedly still required, even if to simply "incapacitate defendants and ex-tract them from the net of criminal activity," while also attempting throughdeterrence 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) (explaininghow 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, how-ever, report that Gotti is suffering from cancer, and may soon die. See Allen Ferier, Sleepingwith 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.2d705 (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 ofthe La Cosa Nostra family's members. See id.; see also United States v. Orena, 145 F.3d551 (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)).

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lifestyle of these mobsters." '535 Indeed, criminal RICO may be more effec-tive at reaching some of the noted policy goals of the statute, "namely, 'topunish, deter, incapacitate, and... directly to remove the corrupting influ-ence from the channels of commerce.' "536 The inevitable conclusion, how-ever, remains that criminal RICO is a more effective force against theindividual in organized crime actions, while civil RICO may be better situ-ated to combat the enterprise, namely an entire Mafia family or La CosaNostra as a whole.

Civil RICO is more effectively designed to enforce a strategy originallyimposed upon all of RICO. Law enforcement officials do not focus on theindividual, but rather explore the "offices" which members occupy, while"trying to determine what functional capabilities they represent, and whatpartnerships and relations seem to exist among the individuals." '37 If thisstrategy had been in force, law enforcement may have realized earlier thatVincent Gigante was in fact in a higher leadership position than AnthonySalerno who, in actuality, merely followed Gigante's orders.538 Rather thancreating vacancies to be filled by others, prosecutors utilizing civil RICO'sremedies may, after determining and evaluating how family members figurein within the operations of criminal activities, ask for more creative reme-dies to thwart not only the fiscal base of organized crime, 539 but the controland power illegal enterprises have developed to further their particular il-licit ventures.

Focusing on civil RICO remedies, such as injunctions, dissolutions, andespecially the power to "reorganize," law enforcement may duplicate theresults of Local 560 and Cappetto. Enjoining numerous individuals fromparticipation within an enterprise, legitimate or illegitimate, extracts thepower they once received as a group from that institution. Families wouldno longer be able to reap the intangible benefits allotted them by control ofunions if injunctions are successfully implemented and enforced. Whilesuch actions are not without their critics,54 Local 560 is an excellent exam-ple of how persistence by law enforcement can disable a once powerfulassociation and the benefits reaped therein.

"The policy goal, then, is to weaken and frustrate the enterprises ratherthan control their criminal offending." '41 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 unend-

ing federal oversight").541. Moore, supra note 435, at 51.


useful in eradicating organized crime from the social fabric .... Theremedies made available through 18 U.S.C. § 1964(c) are "equitable andremedial in nature, not punitive, ' 5 43 and are therefore better situated at ad-dressing a long term problem such as organized crime. While much of LaCosa Nostra's strength comes from its ability to exploit market vulnerabili-ties while maintaining stability and predictability generally required to re-main profitable,5 " the civil remedies provided by RICO are more adept atdisrupting this strength than incarceration or forfeiture.

RICO has been described as "more than a set of laws around which acase is mounted; it is also an investigative instrument that assists planningand the formulation of enforcement work agendas as cases proceed." '545 Al-though complex, the formulation of connecting persons with enterprises,and predicate acts with a continuous sense of criminality may guide lawenforcement not only in their investigations, but in determining what reme-dies are appropriate. Giuliani stresses the importance of allowing a prose-cutor to "present a jury with the whole picture of how an enterprise, such asan organized crime family, operates." '546 While this was important for theprosecutor to enable the government to indict "the entire hierarchy of anorganized crime family," '547 by introducing evidence of the structure5" andhistory549 of La Cosa Nostra in general, and even allowing members ofother families rather than the accused's to testify.550 However, prosecutorsand judges alike should be better equipped to fashion such remedies aswould be appropriate to end the destructive potential of the entire entityrather than just a replaceable spoke in the La Cosa Nostra wheel.551 Crea-tive use of injunctions can limit the effectiveness of organized crime fami-lies by removing them from both legitimate552 and illegitimate businessesventures. 553 Keeping them from future activities554 requires follow-up in-formation on both the individual's and the association's actions, as well as

542. United States v. Turkette, 452 U.S. 576, 585 (1981).543. Local 560, 581 F. Supp. at 328; see also Turkette, 452 U.S. at 593 ("As a measure

to deal with . . . organized crime, RICO was both preventive and remedial.").544. See Finckenauer, supra note 11.545. 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 advan-tage 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.

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any targeted business ventures, 5 making it difficult to associate with othercriminal elements.556 Indeed, injunctions forbidding association with otherLa Cosa Nostra members allows law enforcement an easier opportunity tocontrol organized criminals without touching upon sensitive constitutionalissues.557

RICO has been and will continue to be confronted with numerous chal-lenges 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 innovativeremedial measures under the act. Information garnished from valuable in-vestigations like Operation GENUS should be used in fitting "punishments"more adept at frustrating the enterprise, rather than merely a group of indi-viduals, as RICO's proponents have long held is the crucial benefit of thestatute.

Additionally, the lower "preponderance of the evidence" standard in civiltrials is more easily established than the criminal "beyond a reasonabledoubt" 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 andremedial measure.

However, besides those declaring the overwhelming success of RICOagainst organized crime members and organizations, others have alreadylooked beyond the act. Criticizing the "complex and cumbersome task" ofproving 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 con-

frontations regarding the First, Eighth and Tenth Amendment vagueness, ex post fact, doublejeopardy issues; and Fifth and Fourteenth Amendment due process and equal protectionchallenges. See Bourgeois, supra note 16, at 915-23. Other challenges relate to possiblespill-over effect; see Mastin, supra note 16, at 2330-37. But cf. Zafiro v. United States, 506U.S. 534, 539-40 (1993) (holding "spill-over" did not violate the constitutional rights of thedefendants); 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 organizedcrime entities has been appropriate and was intended."); attaching criminal stigma to civilproceedings, 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 proceedingleaves no greater stain than do a number of other civil proceedings."); the problems associ-ated with the RICO megatrial, see G. Robert Blakey, RICO: The Federal Experience (Crimi-nal and Civil) and an Analysis of Attacks Against the Statute in HANDBOOK OF ORGANIZEDCRIME IN THE UNITED STATES 457 (Robert J. Kelly, et al. eds., 1994); and an alleged explo-sion 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 thepreponderance of the evidence standard of proof in civil RICO trials).


launderers who "clean" organized crime's "dirty" money. 6° Administra-tive remedies through regulatory initiatives and the creation of private in-spector generals are two newer tools being used by those realizing criminalsanctions alone cannot defeat criminal organizations.61 Guiliani has beenpraised for his continued battle against organized crime even after the endof his prosecuting days, for the many successful administrative remediescreated within New York City.562 In fact, although this powerful tool hadbeen affirmed in the 1959 decision in Barton Trucking Corp. v.O'Connell,56 3 use of regulatory devices to rid industries of organized crimeinfluences were unused until Giuliani took office in 1994,5 6 despite itsability 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 organ-ized crime enterprises, and the increasing collaboration amongst such orga-nizations, international cooperation is becoming a necessity for any waragainst organized crime.5 66 In fact, "just as organized crime could not existwithout international cooperation, the only possibility of combating con-temporary organized crime is through international cooperation. '567 Per-haps the greatest example of this was the noted "Pizza Connection case"where members of both the American La Cosa Nostra and the Sicilian Ma-fia were convicted under RICO for their parts in an international drugsmuggling operation.568

To effectively extinguish organized crime, the source of its power mustbe 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 BlackMoney into Green: Money Laundering, in HANDBOOK OF ORGANIZED CRIME IN THE UNITEDSTATES 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 itappear 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 YorkCity 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 CombatingTransnational Organized Crime: The Need for a Multilateral Convention, 18 BERKELEY J.INT'L L. 53, 54 (2000) (citations omitted) (internal quotations omitted); see also ChristopherM. Pilkerton, Changing the Chameleon: A New Approach to the Investigation of Transna-tional 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.

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of La Cosa Nostra, this is indeed an important aspect which needs furtherdevelopment and enforcement.57° One must realize that money is not theonly source of organized crime power. For example, while La Cosa Nos-tra's control over unions provides an additional source of income for bothindividual members and the families as a whole, it also provides other es-sential intangible benefits such as a form of "legitimacy" which has led totangible political power and other benefits.57 While the criminal forfeitureportion 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 en-forcement hope to combat the other means, including the infiltration of le-gitimate businesses.572

No matter what strategy is used, the most important consideration is un-doubtedly that "a successful attack on organized crime cannot be a short-term campaign. '5 73 La Cosa Nostra has ruthlessly attempted to regain thepower taken away by law enforcement. Law enforcement as a whole mustattempt to avoid the typical downfall inherent in "the nature of our govern-mental system," whose focus rarely remains upon a given problem forlong.5 74 This is imperative, as shown by Judge Ackerman while discussingthe 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, Iknow it .... It's like squeezing water out of a wash rag .... There's still alot 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 be-ing "lured into organized crime by the ethos of the neighborhood as youngtwigs bent by their seniors. 577 Just as another of these "soldiers," or evenan alternative "boss" will be ready and willing to walk in and fill the shoesof an incarcerated "wiseguy," even if law enforcement were ever com-pletely successful at eliminating the Mafia, new and developing organizedcrime groups would be more than willing to fill the shoes of the longdaunted La Cosa Nostra.

At the same time, La Cosa Nostra continues to diversify. As law en-forcement has been successful in purging unions and other legitimate indus-tries of organized crime's influence, the families have moved on to other

570. See generally Amann, supra note 32.571. See GoTHAm, supra note 17; see also supra notes 510-11 and accompanying text.572. See supra notes 88-107.573. 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.


white-collar crimes, most specifically health insurance, prepaid telephonecards, and Wall Street brokerage houses.5 7 8 Equally important is continueddiligence against corrupt politicians and businessmen aiding organizedcrime figures. Not only has corruption long been a powerful ally of LaCosa Nostra,5 79 a direct relationship in La Cosa Nostra's political influenceand its general decline has been noted.58°

Overall, while headlines such as "Organized Crime Boss Incarcerated forOne-Hundred Years," may be more "exciting" and grab more attention than"Trusteeship Imposed on Local Union," the latter may actually do more inthe 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. RobertBlakey, Federal Criminal Law: The Need, Not For Revised Constitutional Theory or NewCongressional Statutes, But the Exercise of Responsible Prosecutive Discretion, 46 HAS-

TINGS L.J. 1175, 1198 (1995). Politicians "[t]ouched by its corruption" kept law enforce-ment from focusing upon La Cosa Nostra by "minimiz[ing] its significance." Id. at 1196-97.

580. See Finckenauer, supra note 11.

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