NCJ Number
129578
Date Published
1991
Length
13 pages
Annotation
Provisions of the Racketeer Influenced and Corrupt Organizations (RICO) Act related to forfeiture focus on criminal prohibitions and punishments, postconviction proceedings, third party interests, pretrial restraints, and due process.
Abstract
Under RICO's Section 1962, the defendant faces criminal and/or civil sanctions; an individual can be fined up to $25,000 and/or imprisoned for a maximum of 20 years. Section 1963 authorizes the government to seek forfeiture of certain property owned by persons convicted of criminal RICO violations. Real property, as well as tangible and intangible personal property, are subject to forfeiture. Courts have upheld the use of conclusory language and have not required a detailed listing of forfeitable property. In postconviction proceedings, the jury must first find the defendant guilty of the RICO charge upon which the forfeiture penalty is predicated, and most courts require bifurcated jury deliberations. Some courts have held that evidence presented in the forfeiture phase, and not before the jury when it determined guilt, may not be used in post-trial proceedings or on appeal to sustain the conviction. RICO prescribes the statutory basis for forfeiture of attorney fees and has provisions on temporary restraining orders, preindictment restraint, and postindictment restraint. Court cases holding that due process requires an adversarial hearing on pretrial restraining orders have ruled that the government must establish the likelihood that it will be able to convince the jury of a defendant's guilt and that failure to restrain property is likely to result in its unavailability for forfeiture. Other constitutional issues regarding pretrial restraint and actual forfeiture concern violation of the presumption of innocence and violation of the eighth amendment. 1 note