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RICO: Civil and Criminal Law and Strategy

edited by Jed S. Rakoff, Howard W. Goldstein

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“Rakoff and Goldstein have proved that a practical book can also be scholarly. They have gathered together a group of author-experts who comprehensively analyze every conceivable RICO problem. Bravo!”
Lawrence Pedowitz of Wachtell, Lipton, Rosen & Katz,New York

RICO: Civil and Criminal Law and Strategy is a practical guide to all aspects of RICO litigation. It provides a fundamental grounding in substantive RICO law and focuses on strategic and tactical considerations of RICO practice. Especially valuable discussions provide the latest techniques for representing either side of the issue.

This definitive treatise deals with unresolved issues including: the four-year statute of limitations; due process; the evolving definitions of “pattern” and “enterprise”; determination of predicate acts, including mail, wire and securities fraud; potential applications of RICO in commercial fraud; causation, injury and scope of damages; pretrial seizure of assets and forfeiture of assets; criminal “mega-trials”; parallel proceedings and collateral consequences; and government civil RICO. The book also keeps you up to date on Supreme Court cases and the latest judicial interpretations of many important issues, including the survival of RICO actions after death.

Book #00609; looseleaf, one volume, 952 pages; published in 1989, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-048-7.

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http://www.ricoact.com/
  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 952
  • ISBN: 978-1-58852-048-7
  • Pub#/SKU#: 609
  • Volume(s): 1

Author Image
  • Jed S. Rakoff

Jed S. Rakoff is U.S. District Judge in the Southern District of New York. Mr. Rakoff completed his work on the original edition of Corporate Sentencing Guidelines while a partner with Fried, Frank, Harris, Shriver & Jacobson in New York, prior to assuming his present duties. He does not have any continuing editorial relationship with the book.


Also by Jed S. Rakoff:
Federal Corporate Sentencing: Compliance and Mitigation


Author Image
  • Howard W. Goldstein
Howard W. Goldstein is a litigation partner in the New York office of Fried, Frank, Harris, Shriver & Jacobson LLP with particular expertise in white collar criminal defense and civil RICO litigations. A former Assistant U.S. Attorney and Chief Appellate Attorney, he has written and lectured extensively on criminal law. Mr. Goldstein writes a regular column on corporate crime for the New York Law Journal and is an editorial board member of the Corporate Counselor newsletter and Business Crimes Bulletin.

Also by Howard W. Goldstein:
Grand Jury Practice

CHAPTER 1
The Fundamentals of RICO

§ 1.01 The Background of RICO
§ 1.02 The Elements in General of a RICO Action
§ 1.03 Person
[1] Statutory Definition
[2] Vicarious Liability
[3] The Immunity of State/Federal Entities, Government Officials, and Foreign States
§ 1.04 Employing a Pattern of Racketeering Activity or the Proceeds Thereof
[1] Predicate Acts (“Racketeering Activity”)
[2] “Pattern”
§ 1.05 The “Enterprise”
[1] “Associated in Fact” Enterprises
[2] Test to Establish Existence of an Enterprise: Associations-in-Fact
[3] Distinction Between Enterprise and Defendant
[4] Economic Motive
[5] Types of Enterprises
[6] Effect on Interstate or Foreign Commerce
[7] Avoiding the Enterprise/Person Identity Problems
§ 1.06 Activities Prohibited Under the Act
[1] Investment of the Proceeds
[2] Acquiring an Interest in or Control of an Enterprise
[3] Conducting the Affairs of an Enterprise
[4] Conspiracy
§ 1.07 Injury
[1] Sedima, S.P.R.L. v. Imrex Co.
[2] Standing for Private Individuals Who Can Show Injury
[3] Standing to Bring Conspiracy Claims
[4] Injury to Business or Property
[5] The Filed Rate Doctrine
[6] Causation Nexus
§ 1.08 Sanctions and Remedies
[1] Criminal Sanctions
[2] Civil Remedies
[3] Government Civil RICO

CHAPTER 2
Civil RICO: Basic Applications

§ 2.01 Overview of the RICO Private Civil Action
[1] Predicate Acts for RICO Civil Liability
[2] Requirements of a Civil RICO Pleading
[3] Defendant Need Not Be Charged With a Criminal Violation to Incur Civil RICO Liability
[4] Plaintiff Need Not Allege a Special Racketeering Related Injury
[5] The Limits of RICO’s Scope Are Not Clearly Delineated
§ 2.02 The Nature of the Predicate Acts
[1] Mail and Wire Fraud
[1A] The Hobbs Act
[2] Securities Fraud
[3] Bankruptcy Fraud
[4] General Commercial Litigation
[5] Mortgage Lending Practices
[6] Other Applications
§ 2.03 The Broad Application of RICO to Civil Suits
[1] Recurring Definitional Problems After Sedima
[2] Issues Arising in Defining a “Pattern” of Racketeering Activity
[3] Continuity and Relationship Required to Form a Pattern
[4] Relationships Among the RICO Pattern, the RICO Enterprise, and the RICO Defendant

CHAPTER 3
Civil RICO: Special Problems

§ 3.01 Respondeat Superior
[1] Overview of Respondeat Superior Liability Under Civil RICO
[2] Traditional Concepts of Respondeat Superior Liability
[3] Does Respondeat Superior Apply Under Civil RICO?
[4] Alleging a Derivative Claim Under RICO
§ 3.02 Arbitration Clauses
[1] Whether Federal Claims Are Arbitrable
[2] The Rule in Civil RICO Cases
[3] Collateral Estoppel
[4] Waiver
§ 3.03 Establishing Injury After Sedima
[1] The Sedima Decision
[2] Post-Sedima Decisions
§ 3.04 Statute of Limitations
[1] Selecting the Applicable Limitation Period
[2] Accrual of RICO Claims
§ 3.04A Subject Matter Jurisdiction: Extraterritorial Application of RICO
§ 3.05 Supplemental Jurisdiction
[1] Adjudication of Pendent State Claims Before 1990
[2] Federal Jurisdiction Over Pendent Claims Is Discretionary
[3] Supplemental Jurisdiction and 28 U.S.C. § 1367
[4] Effect of the Dismissal of Federal Claims on Pendent Jurisdiction
[5] Effect on Pendent Claims When Federal RICO Claim Is Dismissed
§ 3.06 Concurrent or Exclusive Jurisdiction
[1] Applicable Legal Standard
[2] Preemption Issues
§ 3.07 Class Actions
[1] Applicable Legal Standards
[2] Application of Rule 23 to RICO Claims

CHAPTER 4
Civil RICO: Damages

§ 4.01 Introduction
[1] Overview
[2] The Effect of Sedima
§ 4.02 Measuring RICO Damages
[1] General Considerations
[2] Out of Pocket Loss
[3] Restitution and Rescission—Return of Monies Paid
[4] Consequential Measures of Damages
[5] Benefit of the Bargain Measures of Damages
[6] Breach of Fiduciary Duty Measure of Damages—Salaries Paid to Disloyal Employees
[7] “Indirect” Damages
[8] Governmental Injury
§ 4.03 Prohibited Damages
[1] Derivative Injury
[2] Personal Injury
[3] Duplicative Damages and the Treatment of Set-Offs
[4] Punitive Damages
[5] Contingent Damages
§ 4.04 Special Characteristics of RICO Damages
[1] Trebling and Attorney’s Fees Are Mandatory
[2] Prejudgment Interest
[3] No Contribution or Indemnification
[4] Conclusion

CHAPTER 5
Criminal RICO: Guidelines and Applications

§ 5.01 Introduction
§ 5.02 The Preface to the Justice Department Guidelines
[1] RICO Guidelines Are Generally Not Binding on the Government
[2] Prosecutor Reliance and the Enforceability of the RICO Guidelines
[3] Some Courts Have Effectively Exacted Government Compliance With the RICO Guidelines
§ 5.03 The Internal Review Process of the Justice Department
§ 5.04 Guideline 1—Pre-Indictment Scrutiny of RICO Prosecutions
[1] General Prosecutorial Considerations Under RICO
[2] Prohibited Prosecutorial Objectives
§ 5.05 Guideline II—Approval Required for RICO Prosecution
§ 5.06 Guideline III—RICO Indictments Generally Barred When Predicate Depends Entirely on Violations of State Law
[1] Three Exceptions to the General Rule
[2] Requests by State Authorities for Federal Intervention is Acceptable
[3] Application of Guideline III
§ 5.07 Guideline IV—The Pattern of Racketeering Activities
[1] Guidelines Require Multiple Transactions to Prove a RICO Pattern
[2] Litigation of the Pattern Requirement
§ 5.08 Guideline V—The Pattern of Racketeering Must Be Related to the Purpose of the Enterprise
[1] Majority Rule
[2] Examples of Cases Where the Government Failed to Establish the “Through“ Requirement
§ 5.09 Guideline VI—When the Enterprise Is an Association in Fact
[1] General Requirements of Guideline VI
[2] Distinctiveness of the Enterprise and the Defendant—Courts Divided
[3] “Economic Goal” of the Enterprise No Longer Required
[4] Conclusion

CHAPTER 6
Criminal RICO: Forfeiture

§ 6.01 Introduction
§ 6.02 Criminal Prohibitions and Punishments
§ 6.03 Novelty of Criminal Forfeiture
[1] No Criminal Forfeiture Prior to RICO
[2] The Significance of Differences Between In Rem and In Personam Forfeiture
§ 6.04 Overview: Forfeiture Under RICO
[1] Purpose of Forfeiture Under RICO
[2] Property Subject to Forfeiture
[3] The “Relation-Back” Doctrine
[4] Notice of Property Subject to Criminal Forfeiture
[5] Calculating the Profits Subject to Forfeiture
[6] Post-Conviction Proceedings
[7] Immunity for Defendant During Forfeiture Proceedings
§ 6.05 Third Party Interests and Forfeiture of Attorneys' Fees
[1] Third Party Interests Generally
[2] Post-Trial Forfeiture Hearing
[3] Third-Party Attacks on the Forfeiture Order
[4] Forfeiture of Attorney Fees
§ 6.06 Pre-Trial Restraints and Due Process
[1] Purpose
[2] The Statute as Amended
[3] Post-Indictment Restraints and Due Process
[4] The Government’s Position: No Full Adversarial Hearing Required
[5] Status of Seized Property
[6] Restraints on Third Party Interests and Due Process
§ 6.07 Other Constitutional Issues With Respect to Pre-Trial Restraints and Actual Forfeiture
[1] Violation of the Presumption of Innocence
[2] Violation of the Eighth Amendment
[3] Violation of the Constitutional Prohibition Against Ex Post Facto Laws and Other Defenses
[4] Violation of the First Amendment: Obscenity Cases
[5] Conclusion
§ 6.08 Comparison of Forfeiture and Other Provisions Under the Money Laundering Control Act of 1986

CHAPTER 7
Prosecuting a Civil Suit: Pleading and Proving Plaintiff’s Case

§ 7.01 Introduction
§ 7.02 The Pros and Cons of Charging Civil RICO
[1] Potential Benefits
[2] Potential Disadvantages
§ 7.03 Conducting The Precomplaint Investigation
[1] Investigate the Factual and Legal Basis for a RICO Claim
[2] Explore the Legal Atmosphere for a RICO Claim
§ 7.04 Drafting the Complaint
[1] Overall Considerations
[2] Plead Eight Specific Elements
[3] Prayer for Relief and Demand for Jury Trial
[4] Amending an Existing Complaint To Add a RICO Count
§ 7.05 Taking the Offensive
[1] Motion to Preserve Assets
[2] Motion to Preserve Evidence
[3] Motions in Limine
§ 7.06 Pretrial Discovery in a RICO Case
[1] Discovery Standards and Procedures
[2] Fifth Amendment Issues
[3] Obtaining Grand Jury Testimony
[4] Obtaining Records of Government Agencies
§ 7.07 Proving a RICO Case
[1] Burden of Proof
[2] Use of Prior Criminal Conviction
[3] Proof of State of Mind
[4] Proof of Conspiracy
[5] Proof of Damage
§ 7.08 Attorney’s Fees

CHAPTER 8
Civil RICO: Defendants’ Tactics and Strategy

§ 8.01 Introduction
§ 8.02 The Initial Response—Advisability of Motions Addressed to the Merits
§ 8.03 Procedural Motions
[1] Motions to Stay
[2] Motions for a Protective Order
[3] Motions to Sever
[4] Counterclaims
[5] Cross-Claims
§ 8.04 Defenses Attacking the Pleadings
[1] Failure to Plead Fraud With Particularity
[2] Failure to Allege Probable Cause
[3] Rule 11 Motions
§ 8.05 Dispositive Defenses
[1] Standing Challenges
[2] Statute of Limitations
[3] The Enterprise as Defendant
§ 8.06 The “Pattern“ of Racketeering Activity and Other Challenges
[1] Pattern—The Number of Predicate Acts Required
[2] The Pattern Requirement in Mail and Wire Fraud
[3] “Through” A Pattern of Racketeering Activity
[4] Attacks on the Predicate Acts
[5] Mens Rea
[6] RICO and Labor Law—the Preemption Controversy
§ 8.07 Defendant’s Remedies—Attorney’s Fees and Costs
§ 8.08 Equitable Defenses
§ 8.09 Miscellaneous

CHAPTER 9
Criminal RICO: Prosecutors’ Considerations

§ 9.01 Multi-Defendant RICO Prosecutions
[1] The Purpose of the Multi-Defendant RICO Prosecution
[2] Advantage of the RICO Statute for the Prosecution
[3] The Colombo Family Indictment
§ 9.02 Drafting RICO Indictments
[1] In General
[2] The Number of Defendants and Predicates
[3] The “Enterprise” Section of the RICO Count
[4] The Special Verdict Form
[5] The Court’s Charge
§ 9.03 Witness Protection
[1] In General
[2] Operation
[3] Benefits
[4] Protection as an Issue at Trial
§ 9.04 Jury Selection
[1] In General
[2] The Anonymous Jury
[3] Individual Questioning and the Use of Questionnaires
[4] Conclusion
§ 9.05 Trial Techniques
[1] In General
[2] Tape Cases
[3] Handling of the Accomplice Witness

CHAPTER 10
Criminal RICO: Defense Techniques

§ 10.01 The Investigation
[1] The Defense Investigation
[2] The Reluctant Witness
[3] The Joint Defense Strategy
[4] Subpoenas
§ 10.02 Sufficiency of the Indictment
[1] Pattern of Racketeering Activity
[2] The Enterprise
[3] Participation in the Conduct of the Affairs of the Enterprise Through a Pattern of Racketeering Activity
[4] Conspiracy
§ 10.03 Procedural Motions
[1] Joinder and Severance
[2] Mandatory Severance
[3] Discretionary Severance
§ 10.04 Miscellaneous Pre-Trial Motions
[1] Venue
[2] Double Jeopardy
[3] Pre-Trial Detention
§ 10.05 Trial Techniques
[1] Publicity
[2] Anonymous Jury Panels
[3] Post-Trial Motions
[4] Jury Instructions
[5] Forfeitures
§ 10.06 Sentencing and Bail Pending Appeal
[1] Sentencing
[2] Bail Pending Appeal

CHAPTER 11
Civil and Criminal RICO: Parallel Proceedings

§ 11.01 Introduction
§ 11.02 The Strategic Problems of Parallel Proceedings
[1] Morale and Resource Depletion
[2] Access to Grand Jury Materials
[3] Collateral Estoppel
[4] Discovery
[5] Pre-Trial Seizure of Assets
§ 11.03 Responses to Parallel Criminal and Civil RICO Actions
[1] Benefits of Going Forward With the Civil Proceeding
[2] Disadvantages of Advancing the Civil Proceeding
[3] Staying RICO civil Proceedings
[4] Protective Order
[5] The Fifth Amendment Privilege

CHAPTER 12
Government Civil RICO

§ 12.01 Government Civil RICO: The Prosecutor’s Epilogue
§ 12.02 Government Civil RICO in the Courts: An Overview of Significant Cases
§ 12.03 Common Litigation Issues
[1] Collateral Estoppel
[2] Preliminary Relief
[3] Vicarious and Accessorial Liability Under Civil RICO
[4] Special Discovery Problems in Government Civil RICO Cases
[5] Trusteeships
[6] Remedies Available to the Government
[7] Pleading With Particularity
[8] Constitutional Attack on RICO
§ 12.04 Proposed Congressional Action
[1] Private Treble Damage Actions
[2] RICO Predicates
[3] Union Trusteeships
[4] Pattern of Racketeering Activity

Appendix
Index