Multiple Prosecutions and Punishments Under RICO (Racketeer Influenced and Corrupt Organization) - A Chip Off the Old 'Blockburger'

• NCJ Number: 90579
• Journal: University of Cincinnati Law Review Volume: 52 Issue: 2 Dated: (1982) Pages: 467-489
• Author(s): G E Becker
• Date Published: 1983
• Length: 23 pages
• Sale Source: National Institute of Justice/; NCJRS Photocopy Services
• Language: English
• Country: United States of America

Annotation

This study examines the double jeopardy implications of the Racketeer Influenced and Corrupt Organization Act (RICO) under the 'Blockburger' standard, which requires that the state must prove a fact under each statute that it is not required to prove under another statute under which a defendant is charged.

Abstract

Conviction for a 'pattern of racketeering activity' under RICO requires that the defendant be found to have committed two or more predicate offenses within a 10-year period. The Federal courts of appeals have generally agreed that a defendant may be sentenced under both the penalty provisions of RICO and the penalty provisions of the predicate offenses. Some have asserted that this allows defendants to be punished twice for the same offense, in violation of the double jeopardy clause of the fifth amendment. The power to define what acts are criminal and to determine what sanctions may be imposed on those who engaged in such conduct rests solely in the hands of the legislature. Thus, in the multiple punishment context, the double jeopardy clause acts not as a bar against the power to legislate but as a bar against the judiciary imposing more punishment for an offense than the legislature has prescribed. An examination of the RICO statute reveals that although application of the 'Blockburger' test indicates that RICO and its predicate offenses proscribe the same offense, there is evidence in the statute and its legislative history to indicate that Congress clearly intended to allow a defendant to be punished under each. To convict a defendant indicted under two separate RICO offenses, however, the Government must prove that the defendant violated at least two predicate offenses under each RICO count. The Government cannot use the same evidence to prove a required element under one of these predicate offenses that is also relied upon to prove a predicate offense underlying a separate RICO indictment. A total of 135 footnotes are provided.