Wed Jul 30, 2014, 01:53 PM
laserhaas (3,520 posts)
Congressional Law made RICO to empower citizens to become Private Attorney Generals
First of all - most people misconstrue RICO as to be applicable (ONLY) to things like public perception of Mafia.
EAANNTTT! - Sorry professional prosecutors, attorneys and public - RICO has made yours truly a "Private Attorney General"! U.S. Supreme Court authorizes any citizen to become a Private Attorney General You have to understand that mom and pop business people KNOW when someone is strong arming them and/or stealing their business. Just because a prosecutor is "friendly" with a target of a federal investigation and goes on the record stating the government refuses to prosecute - doesn't mean there's no crimes going on! Congress and U.S. Supreme Court on Private Attorney General authorizations. Thus, Congress created "Civil RICO". Where not only can a private party become a "Private Attorney General"; but he/she may also profit from the prosecution (where ordinary prosecutors can not). As a matter of FACT, Congress specified extraordinary motivation for the pursuit of Civil RICO; by allowing "treble" damages.
As is noted by the United States Supreme Court (controlling) standard of Sedima v Imrex, the RICO act was specifically created to permit parties to address grievances of "Prosecutorial Gaps" of Government declining to prosecute a party. There's no need of criminal conviction to prosecute a person for RICO. (As a matter of fact, defendants need only receive "indirect" benefit - {hence, Mitt Romney bragging he gets millions of dollars every year from Bain Capital provides prosecution of him {{NO matter when he claims to have "retroactively" retired thereof}} - once one can document Bain Capital benefited from white collar crimes}). If you'll recall, Al Capone wasn't brought down for his organized crimes; but - instead - for his IRS fraud. How apropos to Romney - is that? The United States Supreme Court provides the certification of Congressional intent that any ordinary citizen may become a Private Attorney General - to become like an Eliot Ness - and go after the bad guys (when the Government refuses to do so). As anyone can see by reviewing the (often cited) U.S. Supreme Court case of Sedima v Imrex https://bulk.resource.org/courts.gov/c/US/473/473.US.479.84-648.html The court below also feared that any other construction would raise severe constitutional questions, as it "would provide civil remedies for offenses criminal in nature, stigmatize defendants with the appellation 'racketeer,' authorize the award of damages which are clearly punitive, including attorney's fees, and constitute a civil remedy aimed in part to avoid the constitutional protections of the criminal law." Id., at 500, n. 49. We do not view the statute as being so close to the constitutional edge. As noted above, the fact that conduct can result in both criminal liability and treble damages does not mean that there is not a bona fide civil action. The familiar provisions for both criminal liability and treble damages under the antitrust laws indicate as much. Nor are attorney's fees "clearly punitive." Cf. 42 U.S.C. § 1988. As for stigma, a civil RICO proceeding leaves no greater stain than do a number of other civil proceedings. Furthermore, requiring conviction of the predicate acts would not protect against an unfair imposition of the "racketeer" label. If there is a problem with thus stigmatizing a garden variety defrauder by means of a civil action, it is not reduced by making certain that the defendant is guilty of fraud beyond a reasonable doubt. Finally, to the extent an action under § 1964(c) might be considered quasi-criminal, requiring protections normally applicable only to criminal proceedings, cf. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), the solution is to provide those protections, not to ensure that they were previously afforded by requiring prior convictions.11 21 Finally, we note that a prior-conviction requirement would be inconsistent with Congress' underlying policy concerns. Such a rule would severely handicap potential plaintiffs. A guilty party may escape conviction for any number of reasons—not least among them the possibility that the Government itself may choose to pursue only civil remedies. Private attorney general provisions such as § 1964(c) are in part designed to fill prosecutorial gaps. Cf. Reiter v. Sonotone Corp., 442 U.S. 330, 344, 99 S.Ct. 2326, 2333, 60 L.Ed.2d 931 (1979). This purpose would be largely defeated, and the need for treble damages as an incentive to litigate unjustified, if private suits could be maintained only against those already brought to justice. See also n. 9, supra. RICO - Corruption and White-Collar Crime For a good review on the issues of utilizing RICO to address White Collar Fraud, you can look at Temple University's publication of Bainbridge-Mims Professor of Law - Pamela Brucy Pierson's - and her addressing such in the writing titled "RICO, Corruption and White-Collar Crime" What is good about this paper by Pierson, is that it points out specific dynamics in prosecuting a Civil RICO case. First read this passage; and then I'll conclude with what's really important here. The third fact that the RICO statute recognizes about crime is that complex crime can be difficult to investigate and therefore takes significant law enforcement resources.50 When crime operates through an organization, it is difficult to penetrate the organization, identify its leaders, and build a case against the culpable individuals. The most culpable individuals generally have insulated themselves with minions whose loyalty is secured through enticements or threats. White-collar crime presents an additional challenge: it is often difficult to detect that criminal activity has taken place until significant harm has been done. Everyone knows when they have been extorted by the mob to keep their business open. Everyone knows when they have been terrorized by drug gangs. Few of us, however, know, at least for a while, if our stockbroker has embezzled our funds, especially if our quarterly reports continue to reflect large gains.51 In the white-collar context, penetrating an organization to determine who is culpable is one challenge; doing so before significant harm occurs is another. It is highly significant and important that law professors and others grasp the extraordinary dynamics of Civil RICO and their implications/ complications. Especially of the matters of White Collar Crimes. Romney is a RICO boss - and I'll now begin with providing you the proof that corrupt courts are preventing!
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