This is the fourth in a series of posts in which I use the trial of former governor George Ryan and his co-defendant Larry Warner to illustrate the unfairness of the mail fraud and RICO statutes.
Like the mail fraud statute, the Racketeer Influenced and Corrupt Organizations Act (RICO) lends itself to wide-ranging trials in which jurors may wind up judging the person rather than the charge. When Congress enacted this statute in 1970, its purpose was to address only one problem – the infiltration of legitimate businesses by organized crime. The very acronym RICO is an ethnic slur. Supporters expected the most frequently used provisions of the statute to be those forbidding (a) the investment of income derived from a pattern of racketeering activity in an enterprise and (b) the acquisition of an interest in an enterprise through a pattern of racketeering activity. The statute, however, was barely used at all in its early years.
Prosecutors then awoke to the unrealized potential of a third section of the statute – one making it a crime to participate in the conduct of the affairs of an enterprise through a pattern of racketeering activity. “Racketeering activity” meant any of a number of enumerated crimes including, most notably, mail fraud. A “’pattern of racketeering activity’ require[d] at least two acts of racketeering activity.”
In an effort to limit RICO’s scope, the Supreme Court held in 1993 that only “operators or managers” of an enterprise could participate in the conduct of the enterprise’s affairs. According to the Court, the statute was aimed at big guys, not little guys. As both Secretary of State and Governor, George Ryan undoubtedly qualified as an “operator or manager” of the State of Illinois (the allegedly racketeer influenced and corrupt organization). His co-defendant Larry Warner, however, held no office. He appeared to be a little guy.
The prosecutors knew how to get around this obstacle. A fourth provision of the statute makes it a crime to conspire to commit any other RICO violation. The prosecutors therefore charged Warner and Ryan with conspiring to commit Ryan’s violation, and Ryan was a big guy. Through the magic of a conspiracy charge, Warner, the little guy, could be transformed into a big guy himself. The Seventh Circuit had upheld this gambit prior to the Ryan /Warner prosecution.
Although a pattern of racketeering activity requires the commission of two predicate racketeering acts, prosecutors may allege as many predicate acts as they like. These acts may extend over two or three decades. They may include crimes on which the statute of limitations has run, crimes that could not themselves be prosecuted in a federal court, crimes that could not be joined with one another in separate prosecutions, crimes of which the defendant already has been convicted and for which he has been punished, and even crimes of which he has been acquitted in a state court. The courts, if faithful to the statute, have no way to prevent this sprawl. As one judge noted, RICO creates “the crime of being a criminal.”
One might suppose that a RICO conspiracy indictment would accuse the defendants of conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity and then specify each of the predicate acts alleged to constitute the pattern. Like most RICO conspiracy prosecutions in the Northern District of Illinois, however (and unlike most non-conspiracy RICO prosecutions), the Ryan/Warner indictment identifies the predicate acts only as “multiple acts” (unspecified) indictable under the mail fraud and other listed federal and state statutes. The trial judge ruled before trial that the prosecutors were not required to supply more detail.
The indictment, however, supplies many details about other things. Every paragraph of a section headed “Means and Method of the Conspiracy” begins with the words “it was part of the conspiracy” or “it was further part of the conspiracy.” As a taxpayer, I hope there is a word processor in the United States Attorney’s Office that types the words “it was part of the [scheme], [conspiracy], [corrupt endeavor]” with only one key stroke.
After its introductory phrase, each of the “Means and Method” paragraphs alleges conduct by Ryan and/or Warner that may or may not be criminal but that certainly sounds awful: “It was further part of the conspiracy that the defendant RYAN knowingly permitted defendant WARNER and certain Associates to participate in the governmental decision making process, and provided WARNER and certain Associates with access to material, non-public information relating to governmental decisions. With RYAN’s authority and concurrence, WARNER and certain Associates converted the participatory status and information provided by RYAN into financial benefits for themselves, defendant RYAN and third parties.”
The prosecutors will not be required to establish that any particular allegation of the “Means and Method” section is true. By alleging “Means and Method,” the Ryan prosecutors extend RICO sprawl even beyond the sprawl built into the statute. Someone once defined a conservative as a liberal who has been mugged – and a liberal as a conservative who has been RICO-ed. The United States will not give George Ryan a fair trial in which prosecutors must prove a precisely defined act of corruption beyond a reasonable doubt.