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2078

RICO Prosecution Memorandum—Statement of Facts -- Proof of the Offense

This section should state the facts of the case concisely, accurately, and logically. Obviously not every fact unearthed during the investigation should be included and a prosecution memo which contains needless or peripheral detail has no better chance for prompt approval than one that contains too little. Accordingly, prosecution memos which merely incorporate by reference investigative reports or grand jury material, or which boiler plate extensive portions of investigative reports within the Statement of Facts section, are not sufficient.

The Facts section should include the evidentiary basis for each element of the offense. As to the proof pertaining to the pattern of racketeering activity, the discussion should be set out by racketeering act. Within the discussion of each particular racketeering act, evidence proving that racketeering act, e.g., relevant portions of each key witness' anticipated testimony should be set forth. Although it is usually more convenient to write up the case in a single narrative which combines the testimony of several witnesses, do not do so. For many of the reasons set out below, and based on past experience, such narratives are to be discouraged. The Summary section, if done well, will be sufficient to put each witness' testimony in correct context. Where there are groups of witnesses who will merely authenticate documents or who will testify to essentially the same recurring events, their testimony need not be individually summarized. Before the substance of a particular witn ess' testimony is set out, the writer must indicate whether the witness has been immunized or promised any considerations and, if so, the details thereof. The witness' past criminal record should be stated. And, importantly, the writer should note whether the witness has already testified in the grand jury; if not, an explanation should be supplied together with the basis for believing that the testimony will be available at trial.

The prospective testimony should be specific on all major points, providing, where possible, the names, dates and places of key events and conversations to the extent the witness is able to do so. For example, where two government witnesses have attended a conspiratorial meeting with two proposed defendants, the description of each witness' testimony of that meeting should cover the areas of when, where and who said what. Key meetings or conversations must not be summarized to the point that it is unclear to the reader what was said and by whom. A phrase such as "It was then suggested and agreed by the defendants that they would pay the kickback to 'A'" is unacceptable; because, upon close analysis, it is uncertain whether each defendant specifically and verbally "agreed" to something or whether "agreement" was simply inferred by the witness. And the passage also suggests that the defendants agreed specifically to a "kickback," which would be a significant inculpatory admiss on, when in fact the testimony may only allege that they agreed to make a "payment" which arguably constituted a kickback. Avoid such characterizations and/or generalizations of this type. If the evidence results from a wiretapped or recorded conversation, the key remarks of a defendant should be quoted verbatim. If the evidence was not recorded, the correct procedure is to set forth, as precisely as recalled by the witness, what was said. For example, "A" will testify that "B" showed a loan application to the group and complained that "C," a union trustee, was balking at processing the loan. "D" responded, "Let's pay 'C,' two points as a fee." "B" said, "Good idea, I'll tell him." Although this recitation doesn't explicitly indicate that the "fee" was intended to be a kickback, it is obvious from the context that it was, especially since "C," as a fiduciary of the fund, could not legally receive a fee for processing the loan application. In the Anticipated Defenses section the writer would, of course, anticipate the claim that the defendants intended only to pay a legal fee. The writer would then refute the claim both on its factual incredulity and by citing the case law and union constitution (if applicable) which prohibit such a conflict of interest.

A frequent defect in a prosecution memo, for which the above hypothetical also serves as an example, is for the writer to gloss over, or fail to recognize, inconsistencies or weaknesses in the case. If two or more government witnesses participated in an event or conversation which is critical to the case, the extent to which the witnesses are consistent or contradictory on any key point is also critical. The prosecution memo should supply, in the example above, "E's" account of the same meeting with "A," "B" and "D." A general statement, often made in prosecution memos, that "E" corroborates "A's" testimony that the meeting with "B" and "D" occurred is unacceptable. The critical questions are: Does "E" attribute the same responses to "B?" If not, were "A" and "E" asked to cover the same ground in the grand jury and, if not, why not? It is not unusual for one government witness to corroborate another government witness on some points while being in dispute on others. The wri ter must recognize and discuss those points which are critical and indicate the extent of the problem. Not all differences in recollection warrant discussion in the prosecution memo, but material differences do. A prosecution memo should also alert the reviewer if a government witness has contradicted himself/herself in past statements on major points.

The Statement of Facts should not contain conjecture or opinion, except as allowed by the Rules of Evidence (e.g., state of mind). Frequently prosecution memos include assumptions or conclusions drawn by a witness based on extrinsic events. For the most part, objections to testimony along these lines will be sustained. The writer must also avoid asserting his/her own subjective opinions as if they are fact. For example, "Immediately after his meeting with 'E' and 'A,' according to airline records and cancelled checks, defendant 'D' flew to Chicago and discussed the kickback with 'C,' the union trustee." In fact, the airline records and checks may only establish that "D" flew to Chicago, from which the inference is drawn that a meeting occurred.