The Defense section should cover the factual and evidentiary weaknesses in the case and the likely legal defenses or theories. It would be impossible here to list all of the recurring defenses encountered in RICO prosecutions. In any event, each case is unique. It is the writer's job to recognize, based upon a thorough review of the grand jury transcripts, investigative reports, court papers, etc., which potential defenses merit discussion. For illustrative purposes, the writer should always consider the following:
- If a search warrant was involved, is there a probable cause issue? Was there proper inventory served? Has the writer personally reviewed the warrant and affidavit and been satisfied that the search will pass muster at a suppression hearing? If the search is questionable, how will the loss of its fruits affect the case; how difficult is the taint problem?
- If a wiretap was involved, was there proper minimization; prompt service of inventory; adequate voice identification; accurate transcriptions made; are key conversations audible; were the original tapes properly sealed and stored; were 18 U.S.C. § 2517(5) orders obtained for use of recorded conversations in unrelated prosecutions, etc.?
- If a defendant's prior sworn testimony, confession, or inculpatory admissions are relevant, what will be his defense: failure to warn; failure to comply with Department regulations; earlier promise of immunity or non-prosecution?
- Does the case involve an unusual application of a federal statute, such as the applicability of the Travel Act to a particular state's commercial bribery statute? If so, what is the prevailing case law in the circuit? How unique is the enterprise that is alleged; what is the prosecution theory of each defendant's participation in a pattern or racketeering acts; is the theory of participation against one defendant different than as against another?
- If the indictment contains a RICO conspiracy charge, how does the proof aliunde stack up against each defendant? What is the test and procedural technique in the district of prosecution for proving a conspiracy? How serious will be the spill-over prejudice if the court strikes the evidence against a particular defendant?
- Are there problems involving:
- Statute of limitations and pre-indictment delay;
- Prosecutorial vindictiveness;
- Tax disclosures;
- Pre-indictment publicity; Federal Rules of Criminal Procedure 6(e) violations;
- Chain of custody and authenticity questions for key prosecution documents; and
- Alibis; entrapment; Bruton.
In addition to the selected category above and/or whatever unique problems exist in the case, the writer should make every effort to convey the seriousness of a potential problem instead of skirting it. If a key government witness, upon whom part or all of the prosecution rests, has been convicted of perjury or fraud or has testified in a series of acquittals, it would not be enough to note that his/her credibility will be severely tested, which states the obvious. In such a case, the prosecution memo should indicate why the witness' testimony, despite these handicaps, will be credible.
Further, the memo should indicate whether any of the predicate acts charged against a defendant were previously charged in either state or Federal court. If so, the prosecutor should consult the Department's policy on Dual and Successive Prosecution (JM 9-2.031).
Obviously, it is not necessary to address every conceivable defense nor is it required that the writer negate a defense that would be inapplicable simply to show that an effort was made to anticipate defenses. On the other hand, it ought to be a rare case where a defendant raises a substantial issue at trial which was not discussed in the prosecution memo but the existence of which was or should have been anticipated.
Special problems should also be anticipated. Examples include recordings of poor audibility, the exercise of a privilege (marital or constitutional), the need to depose gravely ill witnesses, and the availability of protected witnesses in multi-district prosecutions.