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Criminal Resource Manual

110. RICO-related Charges

A major focus in curbing gang violence should be the consideration of prosecuting the gangs for the RICO-related charges of Violent Acts in Aid of Racketeering Activity under 18 U.S.C.A. § 1959. Originally designated 18 U.S.C.A. § 1952B, it was redesignated as 18 U.S.C.A. § 1959 in 1988. This statute can be a key law in prosecuting gang activity. The pertinent portion of 18 U.S.C.A. § 1959 provides:

Whoever . . . for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished . . . 18 U.S.C.A. § 1959 (West Supp. 1995).

"Enterprise" is defined under 18 U.S.C.A. § 1959(b)(2) (West Supp. 1995), to include ". . . any . . . group of individuals associated in fact although not a legal entity, which is engaged in, or the activities which affect, interstate or foreign commerce."

"Racketeering activity" is described in 18 U.S.C.A. § 1959(b)(1) as having the same meaning as Section 1961 under the RICO chapter found at 18 U.S.C.A. § 1961. Under that section, "racketeering activity" includes kidnapping, robbery, and dealing in narcotic drugs, which are chargeable under state law and punishable by imprisonment for more than one year.

Proving these elements can be difficult but not impossible. "Enterprise" can be proven with evidence that the gang's activities concentrated around cocaine, an item grown in South America and which must be moved in interstate and foreign commerce to be present in the United States. It can be argued that the gang's receipt and use of firearms which were manufactured in other states, to commit their crimes, also adds to proof of the interstate or foreign commerce nexus which must be shown when proving an enterprise. Evidence shows that the participation by the gang members in crimes are required by of them to either become members, or continue or increase their membership in the gang. This is another element required to be proven under Section 1959.

IMPORTANT NOTE: Prosecutions under RICO and RICO related statutes must be approved by the Criminal Division of the Department of Justice. United States Attorneys' Manual, Title 9-110.101. The Department of Justice lawyers should prove immeasurably helpful in their advice and guidance in preparing for prosecution under this complex statute.