RICO Law Blog

Arizona Congressman Renzi indicted on racketeering charges.

twalker@CoshoLaw.com (Thomas Walker) — Fri, 14 Nov 2008 07:03:25 -0700

CQPolitics.com (11/14) reports, "A federal grand jury on Thursday indicted Rep. Rick Renzi on eight additional charges, including racketeering and making false statements on his 2005 tax return. The expanded indictment also levies additional conspiracy and insurance fraud charges against Renzi, R-Ariz." Renzi was originally "accused of conspiring to commit insurance fraud with James W. Sandlin, a former business associate, in a land-swap scheme in his home state and with Andrew Beardall, formerly the general counsel of a Renzi-owned insurance agency. The new indictment adds a fourth defendant, accountant Dawayne Lequire, who worked at Renzi's insurance agency." Renzi is accused of captaining "a criminal enterprise for at least six years based on the misappropriation of insurance premiums."

The Washington Times (11/14) adds, "A three-term congressman who did not seek re-election this year, Mr. Renzi had pleaded not guilty."

Is It Civil Or Is It Limited to Criminal - Beyond RICO

twalker@CoshoLaw.com (Thomas Walker) — Tue, 04 Nov 2008 12:44:16 -0700

The White Collar Crime Prof Blog reported yesterday on an interesting issue presented in the Chronicle of Higher Education, Harvard Law Professor Takes New Tack Against RIAA (citing Jaikumar Vijayan, Computer World, Harvard professor offers new challenge to RIAA antipiracy campaign -Nesson claims Digital Theft Act, on which RIAA lawsuits are based, is unconstitutional) on whether the Digital Theft Act as used in a civil lawsuit is improper because the statute is limited to criminal matters.

Years back the issue would not have arisen as the overlap between criminal and third-party civil statutes did not exist. With the Racketeer Influenced & Corrupt Organization Act (RICO) in 1970 we have seen statutes that allow for both criminal and civil enforcement, with the civil enforcement being extended beyond a government agency. The rationale for these civil actions being allowed is that DOJ can't do it alone and allowing third-party civil actions can assist with enforcement. This was appealing with RICO because its initial focus was organized crime. But RICO was interpreted broadly and went well beyond its roots and with it went the third-party civil actions. DOJ had and continues to have guidelines that restrict application of the statutes by providing oversight on prosecutorial discretion. There are, however, no guidelines on the civil side. This caused Congress to place additional limits on the civil side of RICO as seen in 18 U.S.C. 1964(c).

Other criminal statutes have seen attempts to be used in civil matters, such as the Foreign Corrupt Practices Act. In Lamb v. Phillip Morris, Inc., 915 F.2d 1024 (6th Cir. 1024), the court did not allow the civil action. (See also Lewis v. Spock, 612 F. Supp. 1316 (N.D. Cal. 1985)). Interestingly, one finds civil RICO actions that use the FCPA.

Smithfield and Union Settle RICO Case

twalker@CoshoLaw.com (Thomas Walker) — Mon, 27 Oct 2008 09:23:06 -0700

The Associated Press reported today that Smithfield Foods and the United Food and Commercial Workers International union have settled the company's racketeering lawsuit.

The agreement was reached this morning as the case was about to go to trial in federal court in Richmond, Virginia

In a joint statement, Smithfield and the union said the deal calls for a union election at the company's slaughterhouse in Tar Heel, N.C. In exchange, the union will end its public campaign against Smithfield, which included product boycotts and other actions.

Smithfield had claimed in its lawsuit that the union's economic threats amounted to extortion and cost the company about $900 million. Union attorneys said using economic pressure to achieve a lawful purpose is not extortion.

Wachovia to Pay $178 Million to Settle RICO Class Action

twalker@CoshoLaw.com (Thomas Walker) — Thu, 16 Oct 2008 14:14:21 -0700

Wachovia Bank has agreed to pay more than $178 million to settle a class action RICO suit that accused the bank of allowing two telemarketing firms to swindle elderly victims by obtaining their bank account information and then drawing from their accounts through the use of "remotely created checks." The proposed settlement in Faloney v. Wachovia Bank replaces a previous $125 million settlement between Wachovia and the U.S. Treasury Department's Office of the Comptroller of the Currency. That settlement drew sharp criticism from plaintiffs lawyers and a trio of Congress members who complained that it would be ineffective because it would have required victims of the scheme to file claim forms.

U.S. v. Philip Morris ‒ Court of Appeals to hear arguments today

twalker@CoshoLaw.com (Thomas Walker) — Tue, 14 Oct 2008 12:25:12 -0700

The U.S. Court of Appeals for the D.C. Circuit scheduled arguments today to hear from both the industry and the government. The two parties are challenging different aspects of a judge's 2006 ruling that the tobacco industry violated RICO by deceiving the public for decades about smoking risks.

In August 2006, U.S. District Judge Gladys Kessler ruled that the nation's top cigarette makers violated racketeering laws, misleading the public for years about the health hazards of smoking. But she said she lacked authority to order them to pay the billions of dollars the government had sought. The ruling, however, barred cigarette companies from using terms such as "low tar" or "light" in their marketing, but did not impose financial penalties.

Judge Kessler also ordered the companies to publish in newspapers and on their Web sites "corrective statements" on the adverse health effects and addictiveness of smoking and nicotine.

In her 1,653 page ruling, the judge said, "Over the course of more than 50 years, defendants lied, misrepresented and deceived the American public, including smokers and the young people they avidly sought as 'replacement smokers,' about the devastating health effects of smoking and environmental tobacco smoke (secondhand smoke)."

Russians fail to show at RICO hearing

twalker@CoshoLaw.com (Thomas Walker) — Tue, 07 Oct 2008 07:48:50 -0700

Last spring I reported on a case filed in Russia by the Russian Federation against the Bank of New York Mellon (BONY) in which Russia sought to apply the United States’ RICO statute in the Russian court. The Wall Street Journal Law Blog reported this morning that the Russian Federal Customs Service failed to send a representative to appear in a Moscow court for the resumption of pretrial hearings.

As background: The Russian Federal Customs Service is suing BONY over an illegal wire transfer scheme from the 1990s, when two Russian émigrés — one of whom worked for BONY — moved $7.5 billion to American accounts from Russia via unlicensed wire transfers. They later pleaded guilty to various offenses under U.S. law. BONY, under a non-prosecution agreement with the DOJ, acknowledged failure to properly monitor wire transfer activity and paid a fine of $14 million. Now the Russians claim they, too, should be awarded a fine, to the tune of $22.5 billion, and are basing their argument on the RICO statute.

Russian Judge Lyodmila Pulova said the customs service had faxed her a petition requesting a delay until Oct. 15, and explaining only that the service’s lawyers were busy with other matters. Judge Pulova was unimpressed. She overruled the request and agreed to hear testimony from two of the bank’s U.S. experts ‒ including former attorney general Richard Thornburgh. When the witnesses finished, Pulova put off continuation of the hearing until Nov. 13.

BONY is using Gregory Joseph as a RICO expert. Mr. Joseph reportedly presented an 80-slide PowerPoint presentation to the court, explaining why he believes that the case would require the court to interpret U.S. criminal laws.

Trial by Association - An Interpretation of RICO

twalker@CoshoLaw.com (Thomas Walker) — Mon, 15 Sep 2008 05:40:47 -0700

RICO or the Racketeer Influenced and Corrupt Organizations Act, the federal law that allows the prosecution of criminal acts performed by individuals as part of a mob or criminal organization, is used to fight against organized crime and its adverse effects on legitimate business activities. The law states that “It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering", a statement that is easily misinterpreted by those not familiar with the intricacies of the law.

The reason for this confusion arises because, according to the rules of RICO, any individual who has been proven to belong to a criminal organization is liable for prosecution just by association. This means that if any member of said organization has been found guilty of a serious offense like murder, kidnapping, gambling, arson, robbery or bribery, other persons who are known to belong to the same organization can be prosecuted for a pattern of crimes (two or more of 8 state crimes and 16 federal crimes) that have been found to be the organization’s handiwork, even if they are not directly or indirectly responsible for the crime that the defendant has been found guilty of.

The law has been framed this way to get at the entire organization rather than just one or two members. But the ambiguity of the word “association” gets people asking the question – am I liable to be prosecuted if law enforcement officers saw me engaged in an innocent conversation with the defendant in a murder trial? Does the word association extend even to casual relationships where there is no knowledge that one person (the defendant) is engaged in illegal activities? The RICO law allows only for the prosecution of conspirators, people who have knowledge of the crime committed and have supported it in some form or the other. So while the cops do have the option of acquiring a warrant to search your home and office if they suspect you of association with a criminal organization, they cannot book you until they find proof of your involvement.

RICO violations are punishable with up to 20 years of imprisonment.

By-line:

This post was contributed by Kelly Kilpatrick, who writes on the subject of the criminal justice schools. She invites your feedback at kellykilpatrick24 at gmail dot com.

United States v. Philip Morris

twalker@CoshoLaw.com (Thomas Walker) — Wed, 03 Sep 2008 07:41:15 -0700

The D.C. Circuit will hear an appeal of the decade-long civil racketeering case against the tobacco industry this fall. The case is United States v. Philip Morris. Philip Morris, now known as Altria Group, is challenging the 2006 verdict which found that it and six other Big Tobacco defendants conspired for years to deceive the public about the health risks of tobacco. In addition to upholding the lower-court verdict, the government is asking the court to order the tobacco industry to pay more than $12 billion to fund a smoking cessation program and to fund an educational, counter-marketing campaign.

Management and Operation Test Applies to Associated-In-Fact Enterprises

twalker@CoshoLaw.com (Thomas Walker) — Tue, 19 Aug 2008 06:22:52 -0700

On August 18, 2008, the Ninth Circuit ruled that the management and operation test applies to associated-in-fact enterprises in Walter v. Drayson, --- F.3d ----, 2008 WL 3823027 (C.A.9 (Hawai'i)). In Walter, Robert W. Walter, a beneficiary of a trust established by his mother asserted violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) and (d), as well as various state law claims, against a trustee, the trustee’s CPA, who was also a trustee; and Karen Temple, a lawyer, together with her law firm, Bodden & Temple, who provided legal services to the trustor and the trustees. Robert's RICO theory was that the trustees, the CPA, the lawyer and her law firm were an associated-in-fact enterprise whose purpose was to gain and maintain control of the trust and to facilitate the wrongful taking of trust assets.

The district court dismissed Robert’s second amended complaint in a published opinion. Walter v. Drayson, 496 F.Supp.2d 1162 (D.Haw2007). It held that Temple's role was limited to providing legal services such that she did not operate or manage the enterprise and so, could not be liable for conducting its affairs under Reves v. Ernst & Young, 507 U.S. 170, 179 (1993), and Baumer v. Pachl, 8 F.3d 1341, 1344 (9th Cir.1993). For this reason the court also dismissed the RICO conspiracy allegations. Robert appealed to the Ninth Circuit, arguing that the district court misapprehended the “operation and management” test in the context of an associated-in-fact enterprise. The Ninth Circuit disagreed with Robert and affirmed the district court dismissal of his RICO claims with prejudice.

The Ninth Circuit noted that Robert's second amended complaint showed that Temple and her firm were part of the enterprise but failed to show that she or her firm had “some part in directing its affairs.”Reves, 507 U.S. at 179. One can be “part” of an enterprise without having a role in its management and operation. Simply performing services for the enterprise does not rise to the level of direction, whether one is “inside” or “outside.” Accordingly, neither reasonable inferences, nor triable issues, exist sufficient to subject Temple or her firm to liability under § 1962(c).

Thus, in order to be subject to RICO liability a member of an associated-in-fact enterprise must operate, manage or direct the enterprise.

Oregon Supreme Court Affirms Jury Verdict Finding PAC Violated Oregon's RICO Act

twalker@CoshoLaw.com (Thomas Walker) — Tue, 08 Jul 2008 05:56:31 -0700

The Oregon Supreme Court affirmed a jury verdict awarding $2.5 million to the American Federation of Teachers-Oregon, AFT, AFL-CIO and against Oregon Taxpayers United Pac, an Oregon political committee and the Oregon Taxpayers United Education Foundation, an Oregon nonprofit corporation in American Fed. Teachers v. Oregon Taxpayers United,--- P.3d ----, 2008 WL 2636555 (Or.)).This case required the court to interpret and apply the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO). A jury found that defendants ‒ a political action committee and a nonprofit corporation controlled by the same individuals ‒ engaged with others in a pattern of racketeering activity, as defined in ORICO, by forging signatures to qualify two ballot measures for the 2000 general election and by filing false statements with the state from 1998 through 2000 concerning their expenditures and contributions. The jury also found that defendants' illegal conduct injured plaintiffs-two labor organizations-that spent substantial amounts of money opposing the ballot measures. The jury determined that plaintiffs had suffered damages of approximately $840,000, which the trial court trebled pursuant to ORICO. The trial court entered a money judgment in favor of plaintiffs in the amount of approximately $2.5 million and issued an injunction barring defendants from engaging in certain activities. The Court of Appeals reversed one part of the judgment, but otherwise affirmed.

On review, defendants argued that, even if their acts constituted ORICO violations, those acts were not the cause of plaintiffs' injuries and, therefore, that plaintiffs were not “injured by reason of” defendants' acts within the meaning of ORINCO. The Oregon Supreme Court concluded that the evidence was sufficient to permit a jury to find that plaintiffs were “injured by reason of” defendants' conduct.

Eleventh Circuit Holds that RICO applies outside of the United States.

twalker@CoshoLaw.com (Thomas Walker) — Tue, 24 Jun 2008 07:09:51 -0700

In Liquidation Commission of Banco Intercontinental, S.A. v. Renta, --- F.3d ----, 2008 WL 2446320 (C.A.11 (Fla. June 19, 2008), the Eleventh Circuit Court of Appeals held that the Racketeer Influenced and Corrupt Organizations Act ("RICO") can be applied extraterritorially. This case is a civil RICO and fraudulent transfer case arising out of the 2003 collapse of Banco Intercontinental SA (BanInter), which at that time was among the largest banks in the Dominican Republic. After its collapse, the affairs of BanInter were taken over by the Liquidation Commission, a receivership established by the Dominican government. The Commission brought this suit against Luis Alvarez Renta, a Florida businessman, claiming that Renta, with the help of BanInter insiders, wrongfully diverted millions in BanInter funds to finance other business ventures and personal expenses.

Three RICO claims and one fraudulent transfer claim were tried to a jury, which returned a verdict for the Liquidation Commission in all respects. After trebling of the racketeering damages, the judgment totaled approximately $177 million.

Renta appealed, arguing that the entire case should have been dismissed for forum non conveniens, that the RICO claims should have been dismissed for unripeness and because the statute cannot apply extraterritorially. Judge Kravitch, writing for the panel of three judges, upheld the District Court’s judgment. With regarding to the extraterritorial issue, Judge Kravitch framed the initial question as whether Congress intended the statute in question to apply to conduct occurring outside the United States. The Court noted that some courts have held that RICO does not apply to conduct outside of the United States. However, the more widely accepted view, and the one the Eleventh Circuit adopted, is that RICO may apply extraterritorially if conduct material to the completion of the racketeering occurs in the United States, or if significant effects of the racketeering are felt in the United States.

U.S. Supreme Court - Reliance Is Not A Required Element Of A Civil RICO Claim

twalker@CoshoLaw.com (Thomas Walker) — Tue, 10 Jun 2008 08:09:07 -0700

On June 9, 2008 Justice Thomas delivered the opinion in Bridge v. Phoenix Bond & Indemnity Co., --- S.Ct. ----, 2008 WL 2329761 (U.S.) for a unanimous court holding that a plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant's alleged misrepresentations. The Racketeer Influenced and Corrupt Organizations Act (RICO or Act), 18 U.S.C. 1961 - 1968, provides a private right of action for treble damages to “[a]ny person injured in his business or property by reason of a violation” of the Act's criminal prohibitions. The question presented in this case is whether a plaintiff asserting a RICO claim predicated on mail fraud must plead and prove that it relied on the defendant's alleged misrepresentations.

Mel Weiss Sentenced in Racketeering Case

twalker@CoshoLaw.com (Thomas Walker) — Wed, 04 Jun 2008 08:12:18 -0700

Melvyn Weiss, the plaintiffs’ lawyer who pioneered a controversial and lucrative area of law suing corporations on behalf of shareholders, was sentenced on June 2nd in federal court in Los Angeles to 30 months in prison. Weiss pleaded guilty in March to racketeering conspiracy in connection with his former law firm’s alleged improper payments of kickbacks to class-action clients.

Court Sanctions Defendant for E-Mail Preservation Failure

twalker@CoshoLaw.com (Thomas Walker) — Tue, 13 May 2008 12:17:47 -0700

Although not involving a civil RICO claim, the court in Connor v. Sun Trust Bank, 2008 WL 623027 (N.D.Ga. Mar. 5, 2008) sanctioned the defendant for failing to produce an email. Emails are often important evidence in civil RICO cases. So this decision is noteworthy. In the Connor case the plaintiff alleged interference and retaliation claims under the Family and Medical Leave Act (FMLA). The plaintiff filed a motion for sanctions based on the defendant’s failure to produce a highly relevant email during discovery. The plaintiff located, through other means, a relevant email that explained her dismissal to other employees. The defendant moved for summary judgment relying on their 30-day email destruction policy which automatically deleted emails that were thirty days old, unless they were first archived by the user. The court, unpersuaded by the defendant’s reasoning, granted the plaintiff’s motion for sanctions and issued an adverse jury instruction.

Second Circuit Reverses Judge Weinstein in Light Cigarette Case

twalker@CoshoLaw.com (Thomas Walker) — Fri, 04 Apr 2008 07:52:39 -0700

Yesterday, April 3, 2008, the Second Circuit Court of Appeals reversed Judge Jack Weinstein’s grant of class certification for “light” cigarette litigants in McLaughlin v. American Tobacco Co., --- F.3d ----, 2008 WL 878627 (C.A.2 (N.Y.). Plaintiffs, a group of smokers allegedly deceived-by defendants' marketing and branding-into believing that “light” cigarettes (“Lights”) were healthier than “full-flavored” cigarettes, sought and were granted class certification. Schwab v. Philip Morris USA, Inc., 449 F.Supp.2d 992 (E.D.N.Y.2006) (Jack B. Weinstein, Judge). Plaintiffs' suit was brought under RICO, with mail and wire fraud as the necessary predicate acts. See 18 U.S.C. § 1962(c) (forbidding “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity”); see also id.§ 1961(1) (providing that mail and wire fraud constitute racketeering activity); cf. id. § 1341 (mail fraud statute); id. § 1343 (wire fraud statute). The essence of plaintiffs’ complaint is that defendants’ implicit representation that Lights were healthier led them to buy Lights in greater quantity than they otherwise would have and at an artificially high price, resulting in plaintiffs' overpayment for cigarettes. Plaintiffs allege claims arising from their purchase of Lights from 1971, when defendants first introduced Lights, until the date on which trial commences.

With respect to the plaintiffs’ RICO claims, Judge John Walker in the Second Circuit’s opinion noted that Section 1964(c) of Title 18 (“civil RICO”) gives private citizens a cause of action under RICO by providing that “[a]ny person injured in his business or property by reason of a violation of [RICO's substantive provisions] may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee.”18 U.S.C. § 1964(c). To fulfill the requirement that the injury occur “by reason of” a defendant's action, a plaintiff must show “that the defendant's violation not only was a ‘but for’ cause of his injury, but was the proximate cause as well.”Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992); see also Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 380 (2d Cir.2001) ( “RICO's use of the clause ‘by reason of’ has been held to limit standing to those plaintiffs who allege that the asserted RICO violation was the legal, or proximate, cause of their injury, as well as a logical, or ‘but for,’ cause.”). “But for” causation is also known as “transaction causation,” or “reliance,” while proximate causation is often referred to as “loss causation.” See, e.g., Moore v. PaineWebber, Inc., 189 F.3d 165, 169-70 (2d Cir.1999); Powers v. British Vita, P.L.C., 57 F.3d 176, 189-90 (2d Cir.1995); see also Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341 (2005) (noting that reliance is “often referred to ... as ‘transaction causation’ ”). Thus, a plaintiff asserting a civil RICO claim must be able to support allegations of (1) a RICO violation, (2) injury, and (3) transaction and loss causation. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 769 (2d Cir.1994). Judge Walker noted that to prevail in their argument for class certification, plaintiffs must establish that the issues of injury and causation do not defeat the predominance requirement of Rule 23(b)(3). For the reasons set forth in the opinion, the Second Circuit found that plaintiffs failed to meet this burden.

NATIONAL CLASS ACTION CERTIFIED ON RICO CLAIMS

twalker@CoshoLaw.com (Thomas Walker) — Fri, 21 Mar 2008 05:59:21 -0700

A national class action was certified on March 19, 2008 in New England Carpenters Health Benefits Fund v. First DataBank, Inc., 2008 WL 723774 (D.Mass.) against First DataBank, Inc. and McKesson Corporation. Plaintiffs allege that First DataBank and McKesson engaged in a racketeering enterprise (the “Scheme”) to fraudulently state the “average wholesale price” (“AWP”) for numerous prescription pharmaceuticals beginning in late 2001, in violation of 18 U.S.C. § 1964 and California state law. The Scheme allegedly jacked up the AWP by five percent for over 400 brand-name, self-administered drugs sold through retail pharmacies, including mail order (the “Marked Up Drugs”). This allegedly fraudulent price hike caused damages to consumers and 11,000 third party payors (“TPPs”) across the nation.

To recap the allegations, beginning in late 2001, First DataBank, a drug pricing publisher, and McKesson, a drug wholesaler, reached a secret agreement to raise the Wholesale Acquisition Cost (“WAC”) to AWP spread from 20% to 25% for the over four hundred Marked Up Drugs. McKesson communicated these new 25% WAC to AWP markups to First DataBank, which then published AWPs with the new markup. To conceal the Scheme, McKesson and First DataBank agreed to effectuate price changes only when some other WAC-based price announcement was made by a drug manufacturer. By 2002, McKesson estimated that 95% of all prescription drug manufacturers used the inflated 25% markup, and that, by 2004, 99% of all prescription drug manufacturers did so. The Scheme ended on March 15, 2005, when First DataBank disclosed that it had ceased to conduct surveys of the market to obtain AWP information, contradicting prior statements.

The Scheme allegedly resulted in higher profits for retail pharmacies that purchase drugs on the basis of WAC, but get reimbursed on the basis of AWP. According to the Plaintiffs, McKesson implemented the Scheme in order to provide this greater AWP “spread” to important retail pharmacy clients like Rite Aid and Walmart as well as its own pharmacy related businesses.

Tyson Foods is granted Summary Judgment in RICO case

twalker@CoshoLaw.com (Thomas Walker) — Wed, 20 Feb 2008 14:29:13 -0700

On February 13, 2008, Chief Judge Curtis L. Collier of the United States District Court, Eastern District of Tennessee, Winchester Division, granted Tyson Foods’ motion for summary judgment in a lengthy, vigorously contested civil case brought by a class of current and former employees at several chicken processing plants. The plaintiffs brought the lawsuit under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962, 1964. The plaintiffs alleged that Tyson was a member of a conspiracy to knowingly bring illegal immigrants into the United States and employ them in violation of United States Immigration laws. This alleged conspiracy involved prolonged efforts to harbor and conceal these illegal immigrants from detection by the proper authorities. The plaintiffs claimed that, by hiring and harboring illegal immigrants, Tyson was thus able to pay less than the going market wage to its employees. As a result, plaintiffs, as legally-authorized employees, were paid less than they should have been as a result of Tyson’s use of illegal alien labor. Plaintiffs sought to recover damages in the amount of triple the difference between their artificially-depressed wages and the competitive market wages Plaintiffs should have been paid.

Judge Collier concluded that the plaintiffs failed to establish a RICO claim predicated on evidence showing Tyson had at least ten illegal aliens employed at each of its facilities, and that Tyson had actual knowledge each facility employed at least ten individuals who were unauthorized to work in the United States and were brought into the country for purposes of illegal employment.

RICO and Criminal Discovery

twalker@CoshoLaw.com (Thomas Walker) — Fri, 15 Feb 2008 05:52:57 -0700

Since state and federal racketeering cases must be based upon the commission of a crime, defendants in a civil racketeering case need to be aware of the likelihood that a parallel criminal investigation will be conducted during the pendency of the civil case. This reality presents significant risks to the civil racketeering defendant. I plan to deal with the enormous difficulties faced by a defendant exposed to parallel civil and criminal prosecutions in later posts. For now I just want to provide an overview of the criminal discovery process.

At the outset the point must be made that the government’s ability to discover information is significantly broader than that of a defendant, although a defendant’s rights are protected by certain constitutional guarantees.

1. Investigation

The most obvious source of information for the prosecution is the investigatory arm of law enforcement. By the time the prosecution’s attention is drawn to an individual, law enforcement has typically gathered substantial evidence relating to the alleged offense. The government’s ability to gather evidence is further enhanced by the use of search and seizure, a mechanism not available to the defense.

Like the government, defendants can employ investigators to gather potential exculpatory evidence. However, an innocent defendant has no prior knowledge of the accusations against which he must defend himself and a defendant who has committed many crimes does not know which the government has discovered. Consequently, the defendant must rely on the government’s disclosures to calculate how best to present a defense.

2. Grand Jury

Grand jury proceedings provide another significant avenue for the prosecution to gather evidence. It is a “fundamental maxim” that the grand jury “has a right to every man’s evidence....” Before the grand jury, prosecutors have wide latitude to compel testimony and obtain documentary evidence without the restrictions imposed by the state and federal rules of evidence and out of the presence of the defendant and his counsel.

Unlike the prosecution, the defendant has little or no access to grand jury proceedings. A defendant may not even be aware of a grand jury investigation until it is complete. Further, state and federal rules of criminal procedure require that grand jury proceedings be kept confidential.

3. Constitutional Disclosure

The Constitution requires the prosecution to produce certain evidence material to the defense. The most familiar requirement is the prosecution’s obligation to produce exculpatory evidence. The United States Supreme Court has held that the government’s failure to provide a defendant with exculpatory evidence in its possession violated the defendant’s constitutional rights. This obligation extends to evidence that a defendant can use to impeach the government’s witnesses.

4. Discovery Authorized by Statute

The Jencks Act, 18 U.S.C. § 3500, provides that statements by government witnesses in the hands of the government must be produced, but not until after those witnesses have testified. Certain statutes provide some defendants with additional discovery. For example, defendants charged with capital offenses are entitled to a list of the witnesses against them at least three days before commencement of trial.

5. Discovery Under the Federal Rules of Criminal Procedure

A. Rule 16. Rule 16 of the Federal Rules of Criminal Procedure requires that the parties disclose certain information. Upon request, the prosecution must provide certain statements made by the defendant; the defendant’s criminal record; access to certain physical evidence; and reports related to expert, scientific, and medical evidence. Significantly, the Rule does not require disclosure of statements made by government witnesses.

Rule 26.2 of the Federal Rules of Criminal Procedure provides that after a witness testifies, a party may compel production of any relevant statements made by that witness. The Rule does not provide a method for discovery of statements or documents in the hands of a non-party even if they are relevant statements by a witness who has testified.

B. Rule 17(c) Subpoenas

Finally, there is Rule 17(c) of the Federal Rules of Criminal Procedure, which provides:

(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.

6. Cases

There are numerous cases dealing with criminal discovery, a discussion of which is well beyond the scope of this post.

7. Conclusion.

This brief overview is intended only as an introduction to the criminal discovery process. Books have been written about it. Hopefully this information will be helpful.

SCOTUS to hear RICO fraud reliance case.

twalker@CoshoLaw.com (Thomas Walker) — Sat, 05 Jan 2008 12:33:57 -0700

On January 4, 2008, the Supreme Court of the United States agreed to determine “Whether reliance is a required element of a RICO claim predicated on mail fraud and, if it is, whether that reliance must be by the plaintiff.” According to the grant of the petition for a writ of certiorari in John Bridge, et al. v. Phoenix Bond & Indemnity, et al., the brief of petitioners is to be filed on or before Thursday, February 14, 2008. The brief of respondents is to be filed on or before Wednesday, March 12, 2008. A reply brief, if any, is to be filed in accordance with Rule 25.3 of the Rules of the Court. RICO Law Blog will keep an eye on this important case,

Smithfield Foods claims United Food and Commercial Workers violated RICO

twalker@CoshoLaw.com (Thomas Walker) — Thu, 06 Dec 2007 07:11:33 -0700

In an apparent effort to stop “harassment” by the United Food and Commercial Workers union’s “corporate campaign,” Smithfield Foods management personnel brought a $5 million lawsuit against the union for its “public smear campaign.” The suit was filed in Richmond, Va. under the Racketeer Influenced and Corrupt Organizations Act. According to Smithfield’s management, the United Food Workers have carried their aggressive “tricks” to far. Smithfield claims it has been harassed for many year, including boycotts, heckling people who promote Smithfield food products, and disruptive protests during shareholder meetings. A company manager remarked, “This lawsuit was a last resort.” Smithfield’s huge hog-processing plant in Bladen County, North Carolina employing 5000 people is a union target for organization.