RICO Lawyer & Attorney : Thomas Walker : Cosho Humphrey Law Firm : RICO Act, Federal and State Racketeering Litigation, Boise Idaho

For some unexplained reason landowners who feel they have gotten the short end of the stick from zoning officials often sue under the Racketeer Influenced and Corrupt Organizations Act (RICO), or a state law equivalent. These cases are almost always unsuccessful. The latest appeals court decision dealing with these issues was issued by the Tenth Circuit Court of Appeals in Gillmor v. Thomas, 490 F.3d 791, (10^th Cir. 2007),a case brought by several landowners against Summit County, Utah and its zoning regime. The landowners brought suit against several County Officials alleging that their administration of Summit County's zoning ordinances constitutes a pattern of extortion in violation of RICO.  The United States District Court concluded that the county officials had not committed any illegal predicate acts as required to support a RICO claim. Consequently, it granted summary judgment against the landowners and dismissed their case. The landowners appealed to the Tenth Circuit.

The Tenth Circuit held that the landowners' allegations that the administration of county's zoning ordinances by county officials constituted a pattern of extortion in violation of RICO were sufficient to establish a causal connection between the officials' alleged racketeering activities and some injury to landowners’ business or property, as required to have standing to bring RICO claims against the officials.  However, the Appellate Court found that the county officials' enforcement of presumptively valid county zoning ordinances against landowners did not constitute a pattern of extortion under the Hobbs Act, and thus the officials' enforcement actions were not predicate acts, as would support the landowners' RICO claims. The court noted that most of the officials' actions were simply the normal administrative duties required to enforce the zoning ordinances, including explaining to landowners either how the zoning scheme worked, or rejecting allegations of the scheme's invalidity.

The Tenth Circuit concluded that the district court was correct in finding that the landowners could not prove the existence of any predicate acts, as required by § 1961 of RICO.

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A case reported out of the United States District Court, E.D. Virginia, Norfolk Division on July 25, 2007, Rux v. Republic of Sudan, 2007 WL 2127210 (E.D.Va.), reminded me of the unique breadth of RICO. In Rux, the court referred to Southway v. Cent. Bank of Nigeria, 198 F.3d 1210, 1216 (10^th Cir. 1999). The 10^th Circuit held in Southway that the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) was enforceable against a foreign state by virtue of an exception contained in the Foreign Sovereign Immunities Act of 1976.

The Rux case arose from the October 12, 2000, terrorist bombing of the American warship U.S.S. Cole during a temporary refueling stop in the Port of Aden, Yemen, in which seventeen American sailors were killed.  Plaintiffs, consisting of more than fifty surviving family members of the deceased sailors, allege that Defendant Republic of Sudan was liable for damages from the attack because it provided material support and assistance to Al Qaeda, the terrorist organization whose operatives planned and carried out the attack. Plaintiffs brought their action pursuant to the Foreign Sovereign Immunities Act, which establishes subject matter jurisdiction for personal injury or death resulting from acts of state-sponsored terrorism. Upon evidence adduced at a non-jury trial before this Court on March 13-14, 2007, the Court awarded judgment in favor of the plaintiffs in the total amount of $7,956,344.

As I have noted in previous posts, although some state racketeering acts provide a cause of action arising out of personal injuries, federal RICO does not. So, unlike in the Rux case, in order to recover damages under the federal civil RICO statute, a plaintiff must prove injury to his business or property “by reason of a violation of section 1962” of RICO. But, damage to business or property is often a result of terrorist criminal acts. Consequently, RICO may provide a remedy for those persons who suffer such losses because of terrorist activity, if the facts fit one of the exceptions in Foreign Sovereign Immunities Act of 1976.

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For some reason pro se litigants (persons representing themselves) are attracted to RICO. My informal survey indicates that dozens of frivilous RICO claims are filed in state and federal courts each year. They almost always result in dismissal, with prejudice, at the very early stages of the lawsuit – mostly for failure to state a claim for which relief can be granted. As noted in my previous posts, pleading and proving a RICO case is a daunting task, but this fact does not seem to dissuade some people with an ax to grind.  A decision entered in the United States District Court for the District of Nevada on July 5, 2007 provides an entertaining example of a person with a problem – you decide what his problem is.   The District Court’s decision in Charles Caston, et al. v. U.S. President George BUSH, Jr., et al. provides the following recitation of the relief Mr. Caston sought in his RICO lawsuit.

Charles Caston, acting pro se, has brought suit on his own behalf and on the behalf of Casinos Las Vegas, Reno. Plaintiff is suing U.S. President George Bush, Jr. [sic], Governor Gibbons, George Bush, Nancy Poloski [sic], California Governor Arnold Swartznagger [sic], Texas Governor Rick Perry, New York Governor George Pataki [sic], Vice President Dick Chaney, and Mexico's President Andres Manuel Lopex Obrador [sic] for violating his constitutional rights. Plaintiff asks the court to seize 84 Lumber, Office Depot, the Pentagon, and the White House. Plaintiff also requests the court to stop the war in Iraq and release the prisoners in Guantanamo Bay and Afghanistan.

The Court goes on to note:

Plaintiff claims that the Pentagon and the White House need to be seized because they are involved in R.I.C.O. violations and overcharging plaintiff everything he buys. Plaintiff also accuses an unspecified defendant of controlling the slot machines, breaking and entering his storage unit, taking money out of his bank account, and black mailing American Indians. Further, plaintiff claims that urine was poured on him while he slept, he is being stalked by U.S. Military personnel, and that his cousin was killed by the U.S. Military. Finally, plaintiff states that he is being denied a home, a family, a drivers license, and sex with women. Given the delusional allegations of plaintiff's Complaint, the legal and factual deficiencies cannot be cured by amendment.

Not surprisingly, the Court dismissed Mr. Caston’s complaint with prejudice. In any event, thanks, Mr. Caston, for the entertainment value of your RICO claims.

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In late June 2007, the United States Supreme Court held in Wilkie v. Robbins, 2007 WL 1804315 (U.S.) (June 25,2007), that BLM officials did not violate RICO by their cumulative and very aggressive actions to force Frank Robbins, a Wyoming guest ranch operator, to regrant the government an easement across his private land. The lengthy statement of facts included in the decision by Justice Souter defies summarization because – in the words of Justice Souter – “The substance of Robbins's claim, and the degree to which existing remedies available to him were adequate, can be understood and assessed only by getting down to the details, which add up to a long recitation.” Suffice it to say that the Court seemed to be sympathetic to Mr. Robbins, but rather half-heartedly held that he had adequate non-RICO remedies available to him -- some Robbins unsuccessfully asserted and some he didn’t claim at all.

Justice Souter framed the issues as follows: “The questions here are whether the landowner has either a private action for damages of the sort recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), or a claim against the officials in their individual capacities under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (2000 ed. and Supp. IV). We hold that neither action is available.”

The Tenth Circuit Court of Appeals held that Robbins had a clearly established right to be free from retaliation for exercising his Fifth Amendment right to exclude the Government from his private property, Robbins v. Wilkie, 433 F.3d 755, 765-767 (2006), and it explained that Robbins could go forward with the RICO claim because Government employees who “engag[e] in lawful actions with an intent to extort a right-of-way from [a landowner] rather than with an intent to merely carry out their regulatory duties” commit extortion under Wyoming law and within the meaning of the Hobbs Act, 18 U.S.C. § 1951.  68. The Court of Appeals rejected the defense based on a claim of the Government's legal entitlement to demand the disputed easement: “if an official obtains property that he has lawful authority to obtain, but does so in a wrongful manner, his conduct constitutes extortion under the Hobbs Act.” Id., at 769. However, the Supreme Court reversed as follows:

RICO does not give Robbins a claim against defendants in their individual capacities. Robbins argues that the predicate act for his RICO claim is a violation of the Hobbs Act, which criminalizes interference with interstate commerce by extortion, along with attempts or conspiracies, 18 U.S.C. § 1951(a), and defines extortion as “the obtaining of property from another, with his consent ... under color of official right,” § 1951(b)(2). Robbins’s claim fails because the Hobbs Act does not apply when the National Government is the intended beneficiary of allegedly extortionate acts.”

Upon review of the extensive recitation of “bad acts” by the government employees, I was left with the abiding feeling that Robbins’s RICO claims should have survived.  But, in accord with a clear trend in the federal courts, the Supreme Court is not inclined to allow a plaintiff to avail himself of RICO remedies, if there are other adequate (in the mind of the court) remedies available to the plaintiff.

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