By Aara Ramesh
On Wednesday, Aug. 11, a federal jury of seven men and five women was impanelled in New York in the trial of disgraced R&B superstar Robert Kelly (known professionally as R. Kelly) on racketeering and sex trafficking charges.
This is just one recent example of prosecutors using the Racketeer Influenced and Corrupt Organizations (RICO) Act, conceived as a means to dismantling organized crime syndicates, in a particularly creative way. Just a few years ago, it was used by federal prosecutors in New York’s Brooklyn office to charge and prosecute 14 people for running a racketeering, wire fraud, and money laundering operation in connection with FIFA, the powerful global governing body of soccer.
It was also used against NXIVM, the infamous cult masked as a self-help organization that rose to prominence when allegations of sexual slavery and abuse came to light. Keith Raniere, the alleged leader of the group, was convicted by a federal jury on charges that included racketeering and sex trafficking, leading to him being sentenced to 120 years in prison.
In today’s piece, we look at the history of RICO and how it has been used in a non-traditional manner in the past.
What Is The RICO Act?
The RICO Act was passed in 1970 to further empower law enforcement in their fight against the mafia. Since its passage, it has been used successfully to convict mob bosses acting as the head of criminal enterprises. RICO explicitly criminalizes using illegal income to “acquire, establish, or operate an enterprise” and using an enterprise to collect a debt.
There are several specific crimes covered under RICO, but they must indicate “a pattern of criminal behavior spanning years and multiple persons.” These offenses include gambling, murder, kidnapping, extortion, arson, bribery, robbery, drug trafficking, counterfeiting, embezzlement, fraud, obstruction of justice, and human smuggling, among many others.
The key — and most alluring — feature of RICO is that it allows prosecutors to bundle together numerous, varied crimes within the preceding ten years by linking it to an organization’s activity, thereby going after the organization itself, not individual members who are carrying out orders to commit crimes. Before the Act, prosecutors could target, for instance, the person who shot the gun in a series of murders, but had little grounds to go after the person who ordered the hits.
When Has It Been Used?
The first time that the RICO Act was used (albeit unsuccessfully) after its passage was in the late 1970s and early 1980s when the federal government brought charges of criminal conspiracy against 11 members of the Oakland Hells Angels motorcycle club. The defendants were accused of manufacturing and distributing methamphetamine, in the course of which they apparently were involved with murder and attempted murder.
A fairly straightforward recent use of RICO to target organized crime syndicates is a December 2020 case in South Carolina, when a federal grand jury returned a superseding indictment that charged 40 defendants, slapping them with a whopping 147 counts, in what turned out to be the state’s largest racketeering conspiracy ever.
According to reports, four prisoners ran a criminal enterprise from within South Carolina Department of Corrections facilities, making use of contraband cell phones and contacts outside prison. They were engaged in everything from planning murders and kidnappings, to weapons and trafficking.
Investigations began in July 2017, initially just looking at illegal firearms sales and the trafficking of methamphetamine. But eventually, the trail led right to the Insane Gangster Disciples, an offshoot of Folk Nation, a gang with a presence all over the country.
The comprehensive 101-page indictment said that to keep the enterprise going and evade law enforcement, members of the gang “committed, attempted to commit, and conspired to commit, additional acts such as armed robbery, extortion, arson, assault and battery, drug trafficking, money laundering, and obstruction of justice.”
One of the most famous cases to cite RICO unfolded in the 1990s and involved abortion clinics and a woman’s group, the National Organization for Women (NOW), on one side, and anti-abortion protestors on the other.
A coalition of anti-choice groups had engaged in a concerted campaign to picket and block off abortion clinics in the 1980s. As a result, NOW and two clinics sued the coalition under RICO and another separate law, the Hobbs Act (1946), which bans the obstruction of commerce by “robbery or extortion.” A minimum of two violations of the Hobbs Act can be used to identify a “pattern of racketeering activity,” which is where RICO can be applied to triple the damages won.
The case made its way through the judicial system, with a Federal District Court in Chicago ruling in favor of the plaintiffs and the United States Court of Appeals for the Seventh Circuit upholding that verdict in 2001. The 17-year case came to an end in 2003, with a U.S. Supreme Court hearing on Scheidler v. National Organization for Women.
In an 8–1 ruling, the Court found that the incidents in question did not equate to extortion, as the protestors had not “obtained” any of the clinics’ property — a crucial requirement in the official legal definition of extortion. Though the actions may have counted as coercion, the Court said, that particular crime is not included in the Hobbs Act. Experts interpreted this overturning of the lower court’s judgement as an expression of concern, from the Supreme Court justices, about what it would mean to use the RICO Act against political protests and whether that could be a violation of the First Amendment right to free speech.
The Case Against R. Kelly
The nine-count indictment against R. Kelly, 54, says he was the head of a “criminal enterprise” that used his celebrity status, entourage, and “musical talents” to “satisfy Kelly’s personal sexual urges,” manufacture child sexual abuse material, and sexually abuse and exploit at least 19 young women, seven of whom were underage, as well as one 17-year-old boy. Kelly allegedly required “absolute commitment” from his victims, separated them from their loved ones, and demanded they call him “Daddy.” This, according to prosecutors, amounts to racketeering, bribery, and extortion, at the very least.
The way one legal expert puts it is that Kelly was the so-called “Godfather,” with his staff, associates, and other members of his circle acting as his enforcers. The use of RICO in this case, it is said, allows prosecutors to paint a broader picture for the jury, by linking various victims through similar crimes across a lengthy period — a pattern, in essence.
In fact, prosecutors in the case apparently intend to present evidence that is three decades old, from when the singer’s career was just beginning and when, they say, his “enterprise” was also being established. Trial proceedings are set to begin on Aug. 18 with opening statements and testimony. Kelly has denied the allegations and faces decades in prison if he is convicted.
G. Robert Blakey, one of the original architects of RICO, called the statute “extraordinarily flexible,” and said that the government’s case here is strong. According to Blakey, they only need to prove that there was some kind of loose structure under Kelly, one that resembles “a pickup basketball game” more than a sophisticated mob structure.
Interestingly, Forbes reported in 2018 that RICO had become less popular with prosecutors, as criminal syndicates have weakened, and has instead been picked up by civil litigators. The Forbes piece cites one report from a data organization at Syracuse University that found that in the 2018 fiscal year, 1,405 civil suits were filed under RICO, compared to only 213 criminal cases and the 693 RICO-based civil suits filed in 2017.