Monthly Archives: June 2012

California Appeal Court Limits Traffic Stop Automobile Searches.

California Court of Appeal rules arrest during a traffic stop does not automatically authorize a vehicle search.
Refusing to get out of a vehicle during a traffic stop does not justify a search of the automobile, the California Court of Appeal ruled Friday. The three-judge panel further developed the US Supreme Court’s finding in Arizona v. Gant that arresting a motorist does not automatically authorize a warrantless search.

On September 27, 2009, Vernon Evans made a left hand turn from West Boulevard onto Slauson Avenue. Los Angeles Police Department Officer Kevin Currie and Officer Prodigalidad claimed Evans failed to signal and that his driving was erratic. When they pulled Evans over, he appeared nervous. Because the stop was at night and in “gang territory,” Evans was ordered out of the car. Evans rolled down his window and asked why he was being stopped, but did not exit.

After reinforcements arrived Officer Currie blasted Evans with pepper spray. Another officer busted a window and tasered Evans. He was yanked out of his car and tackled on the ground. Officer Prodigalidad searched the car and found eleven empty sandwich bags and $65 in cash. The automobile was impounded while Evans was treated at the hospital. At the impound lot, a more thorough search of the car turned up enough cocaine to earn him a four-day jail sentence, with credit for four days time served.

A Los Angeles County Superior Court judge found the search was justified under the “automobile exception” to the Fourth Amendment requirement that searches should be performed only after obtaining a warrant. The appellate court disagreed, citing the precedent set by the Gant ruling that a search incident to arrest is only valid if the suspect can reach his vehicle or there is some reason to think the car contains evidence relevant to the arrest.

“When the initial search of the vehicle was completed, Evans had been tased and detained, and was lying face down on the ground outside the vehicle, with officers on top of him,” Judge Richard D. Aldrich wrote for the court. “Plainly, he did not have access to the car’s interior.”
Prosecutors argued that the presence of drugs in the car would constitute his motive for his crime — refusing to comply with the police officers’ instruction for him to get out of the car. The appellate panel rejected this line of argument as justifying a search of any vehicle at any time.
“It is not difficult to imagine scenarios in which documentary evidence of motive, knowledge, or intent could reasonably be expected to be found in a car even when the driver is arrested for a minor traffic offense,” Aldrich wrote. “There might be evidence of a speeding motorist’s motive in the car: perhaps an appointment card showing he or she was late to a doctor’s visit, or tickets suggesting he or she was in a hurry to attend the final game of the World Series. Or, a vehicle might contain evidence of distractions that caused a motorist to run a red light. Yet these are precisely the sort of traffic offenses which Gant held would not give rise to a reasonable basis to search.”

Because the exceptions did not apply, the court overturned the conviction. A copy of the decision is available in a 180k PDF file at the source link below.

Source:  California v. Evans (Court of Appeal, State of California, 11/4/2011) & Bikers of America

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Preventing Police Abuse

SOME OPERATING ASSUMPTIONS

  THE BAD NEWS…..is that police abuse is a serious problem. It has a long history, and it seems to defy all attempts at eradication.
 The problem is national — no police department in the country is known to be completely free of misconduct — but it must be fought locally. The nation’s 19,000 law enforcement agencies are essentially independent. While some federal statutes that specify criminal penalties for willful violations of civil rights and conspiracies to violate civil rights, the United States Department of Justice has been insufficiently aggressive in prosecuting cases of police abuse.
 There are shortcomings, too, in federal law itself, which does not permit “pattern and practice” lawsuits. The battle against police abuse must, therefore, be fought primarily on the local level.
 THE GOOD NEWS…..is that the situation is not hopeless. Policing has seen much progress. Some reforms do work, and some types of abuse have been reduced. Today, among both police officials and rank and file officers it is widely recognized that police brutality hinders good law enforcement.
This is why I have made this site, if we don’t start documenting police abuse we will never win this fight against dirty cops who stop bikers or motorcyclist, violate our rights, harassment of people who wear support clothing, profiling club members wearing their vest, beat us, search our bikes & person, arrest us on fake charges; this site is for you so lets make it work for us. All information is protect and will used to show that there are dirty cops, where they are, which departments are allowing profiling. I am prepared to fight, I will fight this fight by my self if I must, I welcome all who will stand with me and we can make a difference.
To fight police abuse effectively, you must have realistic expectations. You must not expect too much of any one remedy because no single remedy will cure the problem. A “mix” of reforms is required. And even after citizen action has won reforms, your community must keep the pressure on through monitoring and oversight to ensure that the reforms are actually implemented.
 Nonetheless, even one person, or a small group of persistent people, can make a big difference. Sometimes outmoded and abusive police practices prevail largely because no one has ever questioned them. In such cases, the simple act of spotlighting a problem can have a powerful effect that leads to reform. Just by raising questions, one person or a few people — who need not be experts — can open up some corner of the all-too-secretive and insular world of policing to public scrutiny. Depending on what is revealed, their inquiries can snowball into a full blown examination by the media, the public and politicians.
II. GETTING STARTED: IDENTIFYING THE PROBLEM:
 You’ve got to address specific problems. The first step, then, is to identify exactly what the police problems are in your city. What’s wrong with your police department is not necessarily the same as what’s wrong in another city. Police departments are different in size, quality of management, local traditions and the severity of problems. Some departments are gravely corrupt; others are relatively “clean” but have poor relations with community residents. Also, a city’s political environment, which affects both how the police operate and the possibilities for achieving reform, is different in every city. For example, it is often easier to reform police procedures in cities that have a tradition of “good government,” or in cities where minorities are well organized politically.
The range of police problems includes:
Excessive use of deadly force.
Excessive use of physical force.
Discriminatory patterns of arrest.
Patterns of harassment of such “undesirables” as the homeless, youth, minorities and gays, including aggressive and discriminatory use of the “stop-and-frisk” and overly harsh enforcement of petty offenses.
Chronic verbal abuse of citizens, including racist, sexist and homophobic slurs.
Discriminatory non-enforcement of the law, such as the failure to respond quickly to calls in low-income areas, and half-hearted investigations of domestic violence, rape or hate crimes.
Spying on political activists.
Employment discrimination — in hiring, promotion and assignments, and internal harassment of minority, women and gay or lesbian police personnel.
The “code of silence” and retaliation against officers who report abuse and/or support reforms.
 Overreaction to “gang” problems, which is driven by the assumption that most or all associational activity is gang-related. This includes illegal mass stops and arrests, and demanding photo IDs from young men based on their race and dress instead of their criminal conduct.
 The “war on drugs,” with its overboard searches and other tactics that endanger innocent bystanders. This “war” wastes scarce resources on unproductive “buy and bust” operations to the neglect of more promising community-based approaches.
Lack of accountability, such as the failure to discipline or prosecute abusive officers, and the failure to deter abuse by denying promotions and/or particular assignments because of prior abusive behavior.
 Crowd control tactics that infringe on free expression rights and lead to unnecessary use of physical force.
III. GATHER THE FACTS
 The first thing to bear in mind about the “homework” community residents have to do in order to build a strong case for reform is that obtaining the most relevant information on the activities of your police department can be a tough task. In answer to critics, police chiefs often cite various official data to support their claim that they are really doing a great job. “Look at the crime rate,” they say, “it’s lower than in other cities.” Or: “My department’s arrest rate is much higher than elsewhere.” The catch is that these data, though readily available to citizens, are deeply flawed, while the most telltale information is not always easy to get.
 FORGET The “Crime Rate.” The “crime rate” figures cited by government officials are based on the FBI’s Uniform Crime Reports (UCR) system, which has several serious flaws. To name only a few: First, the UCR only measures reported crime.
Complaint form, this the most powerful tool you can against police abuse. I have made this form for you so all the incidents of police abuse can be documented.
Second, since the system is not independently audited there are no meaningful controls over how police departments use their crime data. Police officers can and do “unfounded” crimes, meaning they decide that no crime occurred. They also “downgrade” crimes — for example, by officially classifying a rape as an assault. Third, reports can get “lost,” either deliberately or inadvertently.
SIDEBAR: OPEN RECORDS LAWS

Each of the 50 states has a freedom of information act or an open records law. Virtually all such laws were enacted post-Watergate, in the mid-1970’s. Under these laws, community groups can request and obtain access to police reports, investigations, policies and tape recordings regarding a controversial incident, such as a beating, shooting, or false arrest. If the police refuse to disclose information to representatives of your community, that refusal in itself should become the focus of organizing and public attention. Ultimately, your community can sue to compel disclosure, unless the records you seek are specifically exempted.

STRATEGY #4: EDUCATE THE PUBLIC
PROFILE: Police Practices Project, ACLU of Northern California The Police Practices Project conducts education programs to teach citizens about their constitutional rights. One aspect of the police abuse problem, the project believes, is that the police tend to abuse certain people partly because they think these individuals don’t know their rights, or don’t know how to assert their rights. The project also believes that its programs have the added advantage of recruiting groups and individuals to work in police reform campaigns.

The project also publishes wallet-size cards in English, Spanish and Chinese that inform citizens about what to do or say in encounters with the police. These cards have been widely distributed in the community. (One card-holder reported that he pulled out his card when confronted by a police officer, only to have the officer reach into his wallet and pull out his own copy of the same card!)

The project believes that individual citizens and community groups become informed about police policies just by participating in the preparation of educational materials and training sessions. That participation also fosters awareness about particular areas of police practice that need reform. Most important, education empowers even the most disenfranchised people and helps deter the police from treating them abusively.

If Your Are Stopped in Your Car

Show your driver’s license and registration upon request. You can in certain cases be searched without a warrant so long as the police have probable cause.
To protect yourself later, you should make it clear that you do not consent to a search.
If you are given a ticket, you should sign it, otherwise you can be arrested. You can always fight the case in court later.
If you are suspected of drunken driving and refuse a blood, urine or breath test, your driving license can be suspended.
If You Are Arrested or Taken to a Police Station You have the right to remain silent and talk to a lawyer before you talk to the police. Tell the police nothing except your name and address. Do not give explanations, excuses or stories. You can make your defense in court based on what you and your lawyer decide is best.
Ask to see a lawyer immediately. If you cannot pay for a lawyer, you have a right to a free one, and you should ask the police how the lawyer can be contacted. Do not talk without a lawyer.

Source: Bikers of America see full document.

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DISCRIMINATION ON THE BASIS OF CLOTHING OR CLUB MEMBERSHIP IS ILLEGAL

The Unruh Civil Rights Act (C-C Section 51 et seq) provides that “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever.”

Any person whose exercise or enjoyment of rights secured by the Constitution or laws of the United States has been interfered with, or attempted to be interfered with may institute and prosecute a civil action for injunctive and other appropriate equitable relief, including the award of compensatory monetary damages. The Supreme Court ruled in the case of Cohen V. California 403 US 15 (1971) that individuals have the constitutional right under the First Amendment to wear clothing which displays writing or designs.

In addition, the right of an individual to freedom of association has long been recognized and protected by the United States Supreme Court Thus, a person’s right to wear the clothing of his choice, as well as his right to belong to any club or organization of his choice is constitutionally protected and persons or establishments who discriminate on the basis of clothing or club membership are subject to lawsuit.

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Police Ask Christian Bikers To Leave Public Fair

Two members of the Bikers for Christ ministry were told by police to leave a public street fair in Manteca, Calif., for wearing vests that displayed the organization’s colors and patches.

While Billy Rogers and Steve Wilson walked around Manteca’s annual Pumpkin Fair Sunday, they were approached by two officers who told them they weren’t allowed to wear the organization’s colors while on the event grounds.

“Steve took his vest off. I took mine off and turned mine inside out in the presence of the two officers,” Rogers told The Christian Post Monday. He said one of the officers, a sergeant, was okay with the change, so he sent the two men on their way.

After walking around for a while, Rogers and Wilson decided to leave. Walking toward their bikes as they left the event, the two decided to put their vests back on as they would normally wear them. He said they were about 100 feet away from exiting the grounds when the same two officers approached them again, only this time they did so “aggressively” and “abruptly.”

Rogers told the officers that he and Wilson were on their way back to their motorcycles after the sergeant told them they had to leave. He asked the sergeant why, if there was a dress code, there weren’t any visible signs stating it. He also asked the officers why it was an issue for them to wear the Christian ministry’s colors when there was a beer garden, where people were getting drunk, in the middle of the fair.

After Rogers asked his questions, he said, the sergeant told him he didn’t need to know the answers and the issue wasn’t up for discussion.

“At that point his partner put his hand on his gun,” Rogers said. He and Wilson then turned around and walked to their bikes, even though the officer did not take the weapon out of its holster.

Once they arrived at the place where their bikes were parked, they sent a text message to Dave Bates, the Central Valley Chapter Elder of Bikers for Christ.

“I was appalled at the fact that they were asked to leave because of the Christian patch on our vests. It makes no sense to me,” Bates told The Christian Post.

He said though they may not have been discriminating against Christians specifically, singling out bikers with dress codes isn’t fair.

“Discrimination is discrimination either way,” he said.

In a letter to the editor of the Manteca Bulletin, Bates wrote, “It is the purpose of our ministry to bring the Gospel of Jesus Christ to a lost section of society, the biker world, that society has chosen not to associate with. This ministry has been operating for 21 years with no problems. I was under the impression that profiling was against the law.”

Dave Bricker, chief of police for the Manteca Police Department, said the dress code is in place to prevent gang violence. The event’s rules, he said, have been in place for 10 years.

“Like many cities, Manteca experiences gang violence, including a recent gang homicide,” Bricker wrote in an email to The Christian Post. “The area has also experienced significant violence from outlaw motorcycle clubs including … the recent shoot out in a crowded Sparks Nevada Casino resulting in the death of a member of the Hell’s Angels MC. In order to diminish the likelihood of issues that could result in violence at this event, the dress code was enforced fairly and equally.”

“While I am confident that the members of this Christian Club would have had only the best interest of the community at heart … I cannot say that for the other outlaw clubs that may have seen their colors,” he added. “In the interest of the safety of the community and the event the ‘no colors’ rules were enforced.”

Source: Christian Post

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California – Are San Jose Cops illegally Profiling Motorcycle Clubs For ‘Driving While Biker’?

This is an old newspaper article which was written August 16, 2011 by San Jose Mercury News. Prior to the writing of this I had never been to the San Jose Henchmen Clubhouse. I can testify that San Jose Police Department profiles not only the members but anyone who comes to the clubhouse. They sit outside of the clubhouse on the street with their patrol units blacked out stalking waiting for someone to come out and get on their bike and leave so they follow them and pull them over. This is bullying, profiling and harassing of motorcyclist and the club members. I was there one night and witnessed San Jose Police act like “gang members” waiting on and picking on innocent people.

More from the article;

“Big” Ed Aki doesn’t want your sympathy.

Really, the only thing the 54-year-old chip designer and former Marine wants is a night-black Harley Electra Glide full of high octane, a herd of brothers stretching out along a dry highway first thing in the morning — and to be left the hell alone.
Aki is co-founder of the Henchmen, an outlaw San Jose motorcycle club. And he’s in no mood to discuss the irony of his leather-vested, battle-ax-emblazoned posse demanding their civil rights to stop their most pernicious rivals from hounding them.
No, not the Mongols. The San Jose police.”

“They’ve hired a lawyer and filed an official complaint with the city’s Office of the Independent Police Auditor. They contend the police are illegally profiling them for DWB, Driving While Biker, and the city’s code enforcement unit is digging up zoning beefs to run them out of town.
This, from the start, poses a difficult challenge for the Henchmen: Should a biker inked up with skull tattoos who proudly calls himself an outlaw expect the same constitutional protections as you do? “

Are they serious with this damn question, should bikers have or expect to be protected under the constitution, are you F*&King kidding me? leave it to the media to say something as stupid as this. When every freaking group out there is getting special treatment, consideration, protection, rights, etc. All except bikers!

There is something seriously wrong with America, the Justice System and Courts when law Enforcement is allowed to discriminate and violate our rights. Media does not help our cause either as they see us as criminals and low-lifes.

We need to stand and fight, make them hear us and respect us.

Read the full article: Bikers of America

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2011 National Gang Threat Assessment – Emerging Trends

Everybody should read this, the FBI has lost their mind. The 2011 National Gang Threat Assessment – Emerging Trends


This is a scary report they are just targeting who ever they feel is a threat. Read the report/assessment.

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National Drug Threat Survey

The Justice Department has labeled and declared war on motorcycle clubs and riders as criminals and gangs. The information below you should read and share. Here is what I found online.

2011 National Gang Threat Assessment Issued

Washington, D.C October 21, 2011
  • FBI National Press Office (202) 324-3691

According to the 2011 National Gang Threat Assessment released by the National Gang Intelligence Center (NGIC), approximately 1.4 million gang members belonging to more than 33,000 gangs were criminally active in the U.S. as of April, 2011. The assessment was developed through analysis of available federal, state, local, and tribal law enforcement and corrections agency information; 2010 NDIC National Drug Threat Survey (NDTS) data; and verified open source information.

“Gangs continue to expand, evolve, and become more violent. The FBI, along with its federal, state, local, and tribal law enforcement partners, strives to disrupt and prevent their criminal activities and seek justice for innocent victims of their crimes,” said Assistant Director Kevin Perkins, FBI Criminal Investigative Division.

Other key findings are as follows:

  • Gangs are responsible for an average of 48 percent of violent crime in most jurisdictions and up to 90 percent in several others, according to NGIC analysis.
  • Gangs are increasingly engaging in non-traditional gang-related crime such as alien smuggling, human trafficking, and prostitution. Gangs are also engaging in white-collar crime such as counterfeiting, identity theft, and mortgage fraud.
  • Gangs are becoming increasingly adaptable and sophisticated, employing new and advanced technology to facilitate criminal activity discreetly, enhance their criminal operations, and connect with other gang members, criminal organizations, and potential recruits nationwide and even worldwide.

The following agencies contributed to the assessment: U.S. Department of Defense; Naval Criminal Investigative Service; U.S. Army, Fort Dix Criminal Investigative Division; Directorate Emergency Services USAG-HI; U.S. Department of Homeland Security; U.S. Citizenship and Immigration Services; U.S. Customs and Border Protection; U.S. Border Patrol; U.S. Homeland Security Investigations; U.S. Department of the Interior; Bureau of Land Management; U.S. Department of Justice; Bureau of Alcohol, Tobacco, Firearms, and Explosives; Drug Enforcement Administration; Federal Bureau of Investigation; Federal Bureau of Prisons; Immigration and Customs Enforcement; National Drug Intelligence Center; National Gang Center; National Gang Intelligence Center; U.S. Marshals Service; U.S. Probation and Parole; U.S. Department of State; and numerous state, local, regional, and tribal law enforcement agencies.

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Why Is It Important For Bikers/Motorcycle Riders To Document Police Encounters?

Recently, law enforcement officials have intensified their harassment of individuals who are members or associates of motorcycle clubs.  Local police departments, including the San Francisco Police Department, consider many motorcycle clubs to be gangs.[1]  Very commonly, police officers will harass bikers or attempt to obtain information about bikers by pulling them over while they are riding their motorcycles

A number of Constitutional rights are violated when bikers are unlawfully pulled over.  For example, bikers have the right to be free of unlawful searches and seizures, a right that is violated when police officers conduct a search or an arrest without probable cause, or when police officers stop, question, and conduct a pat-down without reasonable suspicion that the person is about to commit a crime. Source: William Weiss

1. It shows there is a problem.

2. It starts a paper trail so that the officer(s) and department can be held accountable.

3. It serves as evidence.

4. It will help you record what happen and may be used in court to prove your innocence.

These are just a few but possibly the most important. With that said we here at Police Profiling Patches have created a form which will help capture this information for you. If you would like to use our Complaint Form which is on a password protected page and requires a password which may only be obtained by contacting us.

 

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Law As A Weapon: How RICO Subverts Liberty And The True Purpose Of Law

Abstract

Much of the growth of federal criminal procedures has been tied to the expanded use of RICO—the Racketeer Influenced and Corrupt Organizations Act of 1970. RICO has succeeded in blurring the lines between state and federal law enforcement and in overturning the protections inherent in the due-process guarantees of the U.S. Constitution.

In the past three decades, a veritable revolution has occurred in U.S. criminal law. It has taken place for the most part at the federal level, where the number of crimes with which individuals can be charged has grown rapidly. Once there were only three named federal criminal acts: treason, piracy, and counterfeiting. Now there are thousands of federal laws and regulations, and the violation of any one of them, no matter how unintentional and harmless the transgression, can lead to years of imprisonment for the convicted person (Roberts and Stratton 2000).

Paul Rosenzweig has described the nature of the changes as follows:

      To [the] fundamental changes in the nature of criminal liability one must also add significant changes in the subject matter of criminal law. At its inception, criminal law was directed at conduct that society recognized as inherently wrongful and, in some sense, immoral. These acts were wrongs in and of themselves ( malum in se), such as murder, rape, and robbery. In recent times the reach of the criminal law has been expanded so that it now addresses conduct that is wrongful not because of its intrinsic nature but because it is a prohibited wrong (malum prahibitum)—that is, a wrong created by a legislative body to serve some perceived public good. These essentially regulatory crimes have come to be known as “public welfare” offenses.
    Thus, today the criminal law has strayed far from its historical roots. Where once the criminal law was an exclusively moral undertaking, it now has expanded to the point that it is principally utilitarian in nature. In some instances the law now makes criminal the failure to act in conformance with some imposed legal duty. In others the law criminalizes conduct undertaken without any culpable intent. (2003, 2–3)

The growth of the federal criminal code has come in the wake of attempts by politicians and federal bureaucrats to “do something” about perceived crime rates, to stop illegal drug use by Americans, and to punish individuals who engage in “whitecollar” crime. In the process of expanding the federal role in identifying and prosecuting “criminal” behavior, however, the federal government has become a formidable conviction and imprisonment machine. Unfortunately, as Rosenzweig writes, many of the “crimes” and punishments can be described only as arbitrary, reflecting neither the seriousness of the offense nor the harm (if any) caused to other individuals.

Much of the growth of federal criminal procedures has been tied to the expanded use of the Racketeer Influenced and Corrupt Organizations Act (RICO), which Congress passed without much opposition in 1970 as the centerpiece of President Richard Nixon’s “Crime Bill.” In this article, we focus on prosecutions under RICO. In many ways, this law has turned out to be a modern-day rendition of the infamous Waltham Black Act of 1723, which, according to Follett, “originally outlawed poaching in disguise or in ‘blacked’ face, but judicial interpretations soon divorced its various provisions from their original context, leading to a list of fifty or more crimes punishable by death” (2001, 21).

Similarly, RICO has metastasized from its original intent, which was to deal more effectively with the perceived problem of organized crime. Federal prosecutors have discovered that RICO is a powerful weapon that can be wielded against most business owners, should the feds choose to target them. Rudy Guiliani’s prosecution of Michael Milken and other Wall Street luminaries in the 1980s—the springboard from which Guiliani rose to become first the mayor of New York City and ultimately a popular public speaker collecting $75,000 per speech—involved some of the early attempts to expand criminal RICO provisions to prosecute private business figures who clearly were not mafiosi. Today, federal prosecutors use RICO routinely to win easy convictions and prison terms for individuals who in the course of business run afoul of federal regulations. For every John Gotti who is brought down by RICO, many obscure business owners and managers are also successfully prosecuted under this law.

Much has been written about the RICO statute.1 Rather than a summary of this vast literature, we offer a view of RICO from another angle, examining how it has revolutionized federal criminal law and how it has been used—with federal judges, members of Congress, and the press acting as cheerleaders—to overturn the protections inherent in due-process guarantees of the U.S. Constitution. Overturn is not too strong a word in this regard, given that in a RICO case, those charged are treated as guilty until proven innocent.

In tracing the development of RICO, we find that the law was little more than a “bait-and-switch” statute that has had little or no effect in stopping or inhibiting the crimes—murder, rape, robbery, and so forth—that most concerned the public in 1970. Instead, RICO has enabled federal prosecutors in effect to circumvent the constitutional separation of powers between the national and the state governments. Since RICO’s passage, the once-clear jurisdictional boundaries between state and federal law enforcement have been erased as more and more individuals find themselves in the federal dock with almost no chance of acquittal.

Although the civil portions of the law have played an important part in the expansion of criminal RICO, we focus here on the criminal side. We examine the political and legal climate that existed when RICO was enacted, and we consider how federal criminal law generally differs from state law. We also point out the “derivative” nature of federal criminal statutes: many of the “crimes” in federal laws are little more than legal fictions that serve only to gain convictions and imprison individuals. Finally, we call for a repeal of the RICO statute and others like it. If law is to serve as a shield for the innocent, as William Blackstone envisioned (Roberts and Stratton 2000), then RICO cannot be tolerated.

Political Climate, “Derivative Crimes,” and RICO

The RICO statute emerged from two separate though related sources: fears of crime in general and fears of organized crime. Furthermore, the political situation in 1970 favored the enactment of such a statute.

The U.S. presidential election of 1968 was like no other in the nation’s history. In that year, Robert Kennedy, a strong contender for the Democratic nomination, and Martin Luther King Jr., an important political figure in his own right, were assassinated. The Johnson administration increased the intensity of its conduct of the Vietnam War following the Tet Offensive, and protests against the war became more passionate and violent. Then came the disastrous Democratic National Convention in Chicago, where antiwar protesters dominated the action both inside and outside the convention hall.

It is hardly surprising that in such a political climate the “law and order” issue resonated with all the viable candidates, from Kennedy to Nixon to third-party candidate George C. Wallace (White 1969). As Theodore White noted, “The two surestfire applause lines in any candidate’s speech [during the 1968 election campaign] were always his calls for ‘law-and-order’ at home and ‘peace’ in Vietnam. This is what the American people—poor and rich, white and black—wanted to hear” (1969, 189).

Besides the violence associated with political issues such as opposition to the Vietnam War, crime rates for ordinary offenses were rising. Reported murders, rapes, aggravated assaults, robberies, and burglaries, all increased rapidly, relative to population, from 1960 to 1970. Americans wanted something done about crime, and both Nixon and Congress were looking for something to allay the public’s fears. The result was, among other things, the enactment of RICO.

The idea for the acronym RICO came from the character Rico played by Edward G. Robinson in the 1930s gangster movie Little Caesar. Nixon signed the bill into law on October 15, 1970, declaring that the new law would “launch a total war against organized crime, and we will end this war” (qtd. in “Nixon” 1970). Indeed, the new law empowered federal law enforcement authorities to engage in activities that seemingly deprived defendants of due process of law as guaranteed by the Constitution. Writes Daniel Fischel:

    To achieve its objective of preventing the infiltration of legitimate businesses by organized crime, RICO gave the government sweeping new powers, including the power to freeze a defendant’s assets at the time of indictment and confiscate them after conviction. Traditionally, criminal defendants are presumed to be innocent and face punishment only after conviction. RICO, by allowing the government to seize entire businesses connected even indirectly with a defendant at the time of indictment, before any proof of guilt, is a major exception to this general principle. The government is authorized, in effect, to act as prosecutor, judge, and jury in the same case. The government under RICO is also able to make it more difficult for the accused to wage a defense by, for example, seizing the funds that a defendant would have used to hire an attorney. And if a defendant is convicted, RICO provides for onerous criminal penalties. (1995, 122–23)

As noted earlier, the “crimes” under the RICO statute are essentially fictitious, created to enable federal authorities to avoid the state courts in which accused “mobsters” traditionally had been prosecuted. Because reputed “mob” figures were being acquitted in state courts—often in the face of overwhelming evidence of guilt—the government created a new set of “derivative crimes,” a class of offenses that by definition are derived from other criminal acts.

RICO (18 U.S.C. §1961 et seq.) declares it a crime to (a) use income derived from a pattern of racketeering activity to acquire an interest in an enterprise affecting interstate commerce, (b) acquire or maintain an interest in an enterprise affecting interstate commerce through a pattern of racketeering activity, (c) conduct or participate through a pattern of racketeering activity in the affairs of an enterprise affecting interstate commerce, or (d) conspire to carry out any of the foregoing actions. Conspicuously absent from RICO is any required mental state: violation of RICO does not require intent, recklessness, willfulness, or even knowledge on the part of the accused.

The statute’s focus is the phrase “through a pattern of racketeering activity.” The American Heritage Dictionary defines racketeering as “carrying on illegal business activities that involve crimes.” The legal interpretation of racketeering is not much different. Section 1961(a) defines racketeering activity as “any act or threat involving” a laundry list of various crimes as defined by other federal laws or certain acts that would be felonies under any state law. Under RICO, then, racketeering involves other crimes ranging from murder and kidnapping as defined by any state law, to bribery and mail fraud as defined by other federal laws. In legal terminology, these underlying crimes are referred to as the “predicate acts” required by the RICO statute. The statute defines a pattern of racketeering activity to mean “two acts of racketeering activity” committed within ten years of each other.

The RICO statute defines an enterprise as “includ[ing] any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” The Supreme Court has held that enterprise can refer to wholly illegitimate endeavors as well as to legitimate ones. (Hence, the stated goal of RICO—to prosecute the infiltration of legitimate businesses by organized crime—has been broadened into prosecution of criminal endeavors as such.)

Thus, under RICO, it is a crime to (a) use income derived from the commission of at least two “acts or threats” involving any of the crimes listed in the statute to acquire an interest in any group of individuals associated in fact affecting interstate commerce; (b) acquire or maintain an interest in any group of individuals associated in fact affecting interstate commerce, through at least two “acts or threats” involving any of the crimes listed in the statute; (c) conduct or participate, through at least two “acts or threats” involving any of the crimes listed in the statute, in any group of individuals associated in fact affecting interstate commerce; or (d) conspire to take any of the foregoing actions.

Section 1962(c) is the most frequently utilized substantive section of criminal RICO, and section 1962(d) (conspiracy) is practically ubiquitous in RICO indictments. What does subsection (c) really prohibit? Violation of RICO is defined as participation in a group of individuals, associated however loosely, “through” commission of at least two other crimes. By definition, the truly wrongful acts in RICO are already criminalized under other statutes. What does RICO add to the criminal code by making it a crime to associate with others “through” commission of crimes? The lack of a satisfactory answer to this question highlights the problematic implications of the fact that RICO is a highly derivative criminal statute. Assuming for the moment that the crimes listed in the RICO statute are themselves properly characterized as crimes, nothing is gained by making it a new and separate crime to associate with others (“conduct or participate in an enterprise”) through commission of other crimes. With the added fact that many of the crimes listed in the RICO statute are themselves derivative crimes, RICO stands out as a highly derivative criminal statute with many illiberal implications.

In reality, RICO acts as an arbitrary penalty enhancer and prosecutorial bargaining tool. A violation of RICO is a crime of convenience—for prosecutors, that is. What defendant, charged with a predicate act carrying a potential sentence of a few years, would refuse to bargain with a prosecutor who says, “I’ll take the RICO charge with its mandatory twenty-year sentence off the table if you plead guilty to the predicate offense”? If this tactical weapon fails, a prosecutor faced with a resolute defendant determined to roll the dice at trial can still rest easy, knowing that RICO has stockpiled new procedural weapons in the prosecutor’s war chest. For example, RICO allows the government join into a single prosecution widely diverse defendants and crimes that, absent RICO, would be too disjointed to be allowed in the same trial under the rules of evidence and criminal procedure.

Owing to the highly derivative character of RICO offenses, a prosecutor has options when deciding what charges to seek in an indictment. There are few constraints on a prosecutor’s discretion to include a RICO charge along with others. Given the formidable sentences RICO threatens and the relatively weak evidence needed to prove that a defendant associated with a group of individuals who committed other crimes, prosecutors have much to gain by including a RICO charge. Such abuse of prosecutorial discretion aids politically motivated or vindictive prosecutions and produces concomitant suffering and injustice for the victimized defendants. Moreover, such abuse of prosecutorial discretion is virtually irremediable because of the legal doctrine of absolute prosecutorial immunity, which bars civil suits for damages against prosecutors.

According to Roberts and Stratton (2000), federal criminal statutes today number more than three thousand. In addition, more than ten thousand federal regulations have the same legal force, thus widening the net in which federal prosecutors can catch ordinary citizens. The proliferation of derivative crimes, in combination with all these laws and regulations, has produced a prosecutor’s paradise.

Under RICO, individuals who engage in what prosecutors allege to be extortion, illegal gambling operations, and the like are not charged with those specific crimes, but rather are accused of racketeering, which is a derivative catch-all term. Because RICO cases are tried in federal courts, U.S. attorneys do not have to prove to juries and judges that the accused engaged in the aforementioned crimes (which as a rule are violations of state criminal law); they must show only that it appears the defendants carried on those activities. Moreover, for a RICO conviction, the prosecutor must meet only the civil standard of “preponderance of the evidence,” not the higher standard of “guilt beyond a reasonable doubt” that historically has been required for criminal conviction.

The highly derivative nature of RICO offenses is further exposed by examination of section 1962(d)—conspiracy to violate the other sections of the RICO Act. For example, with respect to subsection (c), violation of subsection (d) means conspiracy to conduct or participate, through at least two “acts or threats” involving any of the crimes listed in the statute, in any group of individuals associated in fact affecting interstate commerce. Now the crime amounts to an agreement (without any overt act) to participate in any loosely defined association of people through the commission of two or more other crimes.

RICO’s Expansive Vagueness

Because the RICO Act ostensibly was aimed at “organized crime,” it was perceived as targeting certain ethnic groups. Indeed, some Italian American advocacy groups protested the law. However, as Herbert L. Packer wrote, prophetically as it turns out: “With the exception of The New York Times and the Washington Post, the press and television have paid little attention to this legislation and the general public remains unaware of the dangers inherent in legislation which reduces the constitutional protection of persons accused of crime and relaxes the restraints on prosecutors, not just with respect to so-called organized crime but with respect to everyone” (1970).

Nor was Packer the only one who perceived that the law might be more expansive than many in Congress believed at the time of its passage. According to Packer, the Association of the Bar of the City of New York also had serious misgivings, proclaiming: “The draftsmen of this bill have made changes which sweep far beyond the field of organized crime. . . . [M]any of these changes have not been adequately thought through. The bill as presently drafted frequently hits targets which were not intended and misses those which were. . . . Even more disturbing . . . is the impatience which [the bill] shows for constitutional and procedural safeguards” (1970).

Fischel points out that an original version of the RICO statute would have made it unlawful “to be a member of the Mafia, Cosa Nostra or other criminal organization” (1995, 123), but such language would have made the bill blatantly unconstitutional because it would have punished membership in an organization as opposed to certain actions. Moreover, for Congress to have targeted a specific group of individuals would have come close to making the law a bill of attainder, also prohibited by the Constitution.

Rather than naming organizations, Congress phrased the statute in language that Fischel describes as “vague” and “almost meaningless,” which, he argues, “requires prosecutors to exercise maximum caution to prevent the law from being misused in ways that Congress never intended” (1995, 123). Unfortunately, U.S. prosecutors came to recognize that the law’s very vagueness made it a splendid weapon to attack individuals and firms that presented inviting targets even though they might not have broken the law in any straightforward way. One need not be a member of the Mafia or even have Cosa Nostra ties in order to be charged with RICO violations. The only requirement is that certain violations of law or regulation occur in the patterns described in the statute. Thus did two northern Virginia business owners, men with no ties to organized crime, find themselves in the RICO dock facing possible twenty-five-year prison sentences for offenses that at one time would have made them simply defendants in a civil law suit.

Prosecution of the Interbank Group

In the summer of 1998, heavily armed agents from the Immigration and Naturalization Service (INS) raided the offices of the Interbank Group of Herndon, Virginia, which were housed in an office suite located near Dulles International Airport. Leaving the offices a shambles, the agents packed most of the records, computers, and other items of the business into fifteen waiting trucks, effectively putting the company out of business (Timmerman 2000). James O’Connor and James Geisler, founders and principle owners of the business, soon were indicted in federal court for conspiracy, immigration and visa fraud, conspiracy to commit money laundering, money laundering, income tax violations, bankruptcy fraud, and mail fraud. Furthermore, the federal prosecutor decided to bundle those charges into an alleged RICO violation, which would have devastating consequences for the two defendants.

Established in 1996, the Interbank Group took advantage of a provision of the 1990 Immigration Reform Act that permitted foreigners to invest $500,000 (in areas of high unemployment) to $1 million in businesses in the United States in return for permanent residency status. The EB-5 Program, as it is called, attracted many former INS employees, who set up firms to invest the funds coming from immigrants. As Roche and Cohn (2000) write, the early results were disappointing until after 1993, when an INS administrator ruled that an investor need put up only $125,000, the balance being provided by a note from the firm handling the investor’s visa application.

The case against Interbank was a complicated one, and for our present purposes we are not concerned with the defendants’ guilt or innocence or with the details of their case. Instead, we use this case as a window through which we can peer into a RICO prosecution to see how the government used its awesome powers to box in the defendants and ultimately to ensure that they could not mount an effective defense.

Although O’Connor and Geisler had no employment connections with the INS, their firm quickly became a major player in this market—a fact that was not lost on Interbank’s competitors or on the INS. Interbank employed a different investment strategy than did its competitors, using a bank located in the Bahamas as a vehicle to lend the difference between the $125,000 put up by the investors and the $500,000 entry requirement. (The company set up another firm, Invest in America, which operated in areas of West Virginia that had high rates of unemployment. Because the firm went bankrupt soon after the raid, the foreigners who put up the investments lost most of their money. At the trial, both the government and the press gave much publicity to the fact that investors in Interbank had lost their money, failing to note that it was the government itself that had driven the firm into bankruptcy.)

By placing the charges under the RICO umbrella, prosecutors were able to allege that Interbank was a “criminal enterprise” and thus to take advantage of the Comprehensive Crime Control Act of 1984 to freeze Interbank’s assets as well as O’Connor’s and Geisler’s personal assets. Therefore, the defendants, unable to pay for lawyers, had to rely on federal public defenders who spend most their time securing guilty pleas for individuals charged with violations of federal drug laws and have almost no experience with financial cases. (At their trials, O’Connor and Geisler represented themselves with “assistance” from their court-appointed attorneys.)

The charges revolved around two decisions by O’Connor and Geisler that prosecutors alleged to be illegal. The first was to use money that the regulations for the EB-5 Program required to be put into escrow until the immigrants’ visas were approved. (O’Connor and Geisler argued that at the time the firm was in a cash-flow crunch and that although their use of the money violated a regulation, they had no criminal intent.) The other charge stemmed from their use of a bank located in the Bahamas to lend to immigrants. (Standard practice in the industry at that time was for the firms to make a phantom loan to immigrants, with the loan forgiven after five years. O’Connor and Geisler took the loans and purchased annuities with them, with the proceeds paying off the loans after five years, thus keeping the immigrants from having a large tax bill. The prosecutors alleged that this practice constituted money laundering, and the judge agreed.) With virtually no ability to defend themselves, O’Connor and Geisler were no match for federal prosecutors, who won guilty verdicts on all counts in August 2001. U.S. District judge T. S. Ellis sentenced both men to ten years in prison (prosecutors had demanded twenty-five years), and they are currently in federal prison camps in Cumberland, Maryland, and Richmond, Virginia. Although it is difficult to know if they would have fared better had they been able to secure the legal representation of their choice, the fact remains that because of the RICO law, they could not defend themselves adequately against the government’s charges. When we consider the resources of two private individuals versus the resources of the U.S. government, it becomes clear that by ensuring that O’Connor and Geisler could not have the lawyers they wanted—and could have afforded, but for RICO’s assetforfeiture provisions—the government ultimately guaranteed that the two men would not be able to mount their best defense. Throw in the nature of the RICO charges, and we can see that the legal playing field was far tilted in the government’s favor.

Guiliani’s Use of RICO Against Financial Entrepreneurs

The Interbank prosecution did not occur in a vacuum: government prosecutors had already discovered that RICO can be applied to nearly any legal infraction or regulatory violation that involves a business enterprise. Only a little more than a decade after the RICO Act’s passage, the most famous criminal use of RICO occurred not in the prosecution of a mob figure such as John Gotti, but in Rudolph Guiliani’s Wall Street prosecutions of the 1980s. Although the criminal RICO statutes had been used even earlier against ordinary businesses with no ties to organized crime, these prosecutions became the best-known instances.2 Writes Fischel:

    Guiliani saw RICO’s amorphous language as a potent weapon to rubberhose and coerce guilty pleas and punish those who refused to cooperate. He had already pioneered the criminalization of such standardless offenses as insider trading, stock parking, and manipulation. Now the government could claim that the same underlying conduct that supposedly provided the basis for these standardless offenses also constituted a “pattern of racketeering activity” that justified a RICO prosecution. By this bootstrapping logic, Guiliani was able to drop the equivalent of a nuclear bomb on any target, at any time, no matter how trivial or harmless the underlying conduct. (1995, 123)

The best-known Wall Street cases were the prosecutions of Michael Milken, the financial entrepreneur who played a leading role in promoting the high-risk, highyield securities known as “junk bonds,” and his firm Drexel Burnham Lambert. Milken ultimately pleaded guilty to six felony counts, and his Beverly Hills investment-banking firm went bankrupt. Guiliani also destroyed Princeton Newport Trading Partners, putting the firm’s founder Jay Regan and five other officers on trial, where they were convicted of a number of RICO charges in August 1989. Appellate courts overturned these guilty verdicts in the summer of 1991, but not before Princeton Newport went out of business.

The Milken case has received a great deal of attention, and we cannot do it justice here. Fischel, however, strongly disputes the government’s contention that Milken’s guilty pleas—made under extreme duress after government prosecutors threatened to indict members of his family—proved that, in the words of Securities and Exchange Commission chairman Richard Breeden, “he stood at the center of a network of manipulation, fraud, and deceit.” Fischel writes: “Breeden’s statement could not have been more wrong. None of the six felonies that Milken pled guilty to demonstrated that he was ‘at the center of a network of manipulation, fraud, and deceit.’ Breeden would have been closer to the truth if he had said that there was still no basis for concluding Milken committed any crimes, using the common understanding of what it means to commit a crime” (1995, 165).

Fischel is not the only critic of Guiliani’s RICO prosecutions. Although Wall Street Journal news reporters such as James Stewart and Laurie Cohen served as virtual mouthpieces for Guiliani and his assistants, the editorial page staff of that same newspaper defended many of the Wall Street traders who found themselves in the government’s crosshairs. George Gilder (1989) compared Milken to the fictitious Tom Smith in R. W. Grant’s “The Incredible Bread Machine,” who goes to prison for inventing a machine that makes bread for a penny a loaf. L. Gordon Crovitz said that Guiliani’s targeting of Milken was a case in which “prosecutors indicted first, asked questions later.” He added, “As Justice Robert Jackson [warned], few things are as dangerous as a prosecutor who finds a target, then looks for crimes to pin on him” (1990).

The call to do away with RICO was not limited to the editors of the Wall Street Journal. The Los Angeles Times editorialized:

      From the moment of its passage, civil libertarians and legal scholars have warned that the federal government’s Racketeer Influenced and Corrupt Organizations Act—the so-called RICO statute—is an open invitation to prosecutorial abuse. Now . . . many of those scholars, some of them former prosecutors, believe their anxieties have been realized. They argue that RICO’s widening application in an astonishing array of cases makes it imperative that Congress erase this law from the books.
      We agree. A good law has several essential attributes: It is clear; it addresses itself to a specific and clearly defined form of illicit conduct; it prescribes a remedy or punishment proportionate to the damage done by the offense. Statutes that fail to meet these tests are enacted not in the cause of justice, but for the convenience of the state. RICO, in fact, is one of the latter.

As noted earlier, Guiliani did not pioneer the use of criminal RICO provisions against individuals who clearly are not connected with organized crime. Even though such use of RICO was just beginning in the late 1970s, some observers already were raising questions. For example, Press, Shannon, and Ellissimmons noted that federal prosecutors were using the RICO Act against defendants who clearly were not part of any organized crime ring.

    The RICO law frightens many lawyers and judges. They worry about language so loosely drawn that it lets the government sweep even smalltime, white-collar defendants and public officials into the same fit as underworld hit men. While Justice officials concede the law must be applied cautiously, they see no need to sheath their weapon. “This is a valuable tool,” says Attorney General–designate Benjamin Civiletti. “We will not shy away from using it to pursue corrupt enterprises which do not fit the laymen’s view of organized crime.” (1979, 82)

Among the private business owners prosecuted under RICO are a builder of oil platforms, a real estate developer, and a hospital administrator. Moreover, RICO has also proved to be a potent weapon in public-corruption cases. The government won convictions against five Macon, Georgia, police officers for accepting bribes to overlook state crimes and a Florida state judge accused of selling acquittals (Press, Shannon, and Ellissimmons 1979).

Conclusion

In 1998, the Pittsburgh Post-Gazette published a ten-part series dealing with misconduct by federal prosecutors. Reporter Bill Moushey, author of the series, wrote: “Hundreds of times during the past 10 years, federal agents and prosecutors have pursued justice by breaking the law. They lied, hid evidence, distorted facts, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas, and convictions. Rarely were these federal officials punished for their misconduct” (qtd. in Roberts and Stratton 2000, 150).

In one of the episodes Moushey investigated, Assistant U.S. Attorney Joseph B. Valder allegedly remarked to a number of people that he did not care about guilt or innocence, only about his own career advancement.4 For a prosecutor such as Valder, the RICO law is a godsend, for it enables him to compile an impressive record of convictions with minimal effort. Of such a person, former U.S. attorney general and Supreme Court justice Robert Jackson once declared: “Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values as well as defects of character” (qtd. in Roberts and Stratton 2000, 16).

With regard to either substantive RICO violations or conspiracy to violate RICO, the real harm (if any) arises from the commission of or the conspiracy to commit the underlying crimes. Without RICO, a defendant may still be charged with committing or conspiring to commit the underlying crime. So what does RICO add to the criminal code?

The only apparent answer is a deeply troubling one. Although the RICO Act adds nothing of value in terms of new prohibitions of truly criminal behavior, it adds powerful weapons to the prosecutors’ arsenal. Our criticism extends far beyond lodging a complaint that RICO is duplicative of other criminal prohibitions and unfair in its broad scope and discretionary application by prosecutors. RICO represents the worst the criminal justice system has to offer any citizen: the arbitrary wielding of the government’s awesome power to impose criminal sanctions. This outrageous law should be repealed at once.

Source: Independent Review

 

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CRIMINAL RICO: 18 U.S.C. §§ 1961-1968 A Manual for Federal Prosecutors

While searching the web I cam across this you better read this fast because I am quite sure if they know I have found this and am making it available here it will be pulled down.

CRIMINAL RICO: 18 U.S.C. §§ 1961-1968 A Manual for Federal Prosecutors

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