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CRM 2000 - 2500

2077. RICO Prosecution Memorandum -- Statement Of The Law

This section should state the legal elements of proof for each of the crimes alleged, and the relevant case law (particularly from the appropriate circuit) governing those elements. Even though the reviewer has undoubtedly seen these elements and cases many times before, the Law section serves the important role of establishing that the writer is knowledgeable about his/her burden and has prepared the memorandum accordingly. This section should precede the Statement of Facts.

The Statement of Law section relates only to the elements of proof and relevant case law in that area. Legal problems and solutions which relate to other areas, such as the Federal Rules of Evidence, anticipated attacks against wiretaps, photo spreads, or joinder of offenses should be discussed in the Anticipated Defenses/Special Problems section of the memorandum.

The Statement of Law must provide the following information:

  1. The precise formulation of the RICO enterprise.
  2. The relevant case law of the circuit which supports that formulation of the enterprise.
  3. Any case law, regardless of the circuit it originated in, which would preclude this prosecution.
  4. How the enterprise's affairs were conducted through the pattern of racketeering activity. This section should address how the participation in the operation or management test from Reves v. Ernest and Young, 113 S. Ct. 1163 (1993), is satisfied.
  5. How the enterprise was engaged in or its activities affected interstate commerce.
  6. If applicable, the elements and theory of any conspiracy to violate 18 U.S.C. § 1962.
  7. The elements of any Federal offense charged as a RICO violation.
  8. If applicable, the elements of any state law violation charged as a RICO predicate act and the range of the state sentence for that violation. A copy of the state statute should also be attached.