Supreme Court's RICO decision could have implications for wiseguys
You wouldn’t ordinarily think of guys like Chin Gigante or Peter Gotti as Right-to-Lifers, but it’s a safe bet they are pleased as punch with the outcome of the recent Supreme Court decision over Operation Rescue and its attempts to block access to abortion clinics.
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While most of the media attention in the case of Schiedler v. National Organization for Women was focused on how the high court reined-in the use RICO and federal extortion law as legal tools against abortion protesters, buried in Justice John Paul Stevens’ lone dissent was a phrase that was music to a wiseguy’s ears.
“The principal beneficiaries of the Court’s dramatic retreat from the position federal prosecutors and federal courts have maintained throughout the history of this important statute will certainly be the class of professional criminals whose conduct persuaded Congress that the public needed federal protection from extortion,” Stevens wrote.
How could the Schiedler decision possibly help Chin or reputed Gambino godfather Gotti? Simple. The Supremes ruled that because the federal Hobbs Act which defines the crime of extortion requires that property be “obtained” in order for extortion to occur, much of the activity of mobsters is now considered “coercion.”
And coercion is not a predicate offense applicable under RICO, the Racketeer Influenced and Corrupt Organizations Act which was the big hammer in the feds’ toolkit.
The federal judge presiding over the racketeering case of reputed mob boss Peter Gotti and six other men said last week that he will change how he charges the jury.
U.S. District Judge Frederic Block told the government and defense attorneys that, because of the high court decision, he will tell jurors they can find extortion to have occurred only if a defendant had obtained money or something of value, and not something intangible, as originally charged in the indictment.
In the Gotti case, the indictment originally charged that Peter Gotti and the others conspired to extort the International Longshoremen's Association by taking union members' right to "free speech and democratic participation" in the ILA. Instead of striking any offending words from the indictment, Block said he planned to give jurors specific instructions.
Extortion vs. Coercion
What’s the difference between extortion and coercion, you ask? Now, thanks to the 7-1 decision in Schiedler, it’s pretty simple: The Hobbs Act loosely defines extortion as obtaining property by wrongful use of force and does not include coercion — the use of force to restrict freedom of action — in the statute. The justices said the definition of extortion used to convict the clinic blockaders was too broad because there was no obtaining property.
Imagine this scenario: Jimmy the Nose is a connected guy who is the head of the local union. Terry Malone, a well-meaning, but ignorant kid comes in and decides to run for the presidency of the local. Jimmy the Nose tells Malone if he runs, he’ll get hurt. Terry decides not to run. In the old days, the feds could go after the Nose for a Hobbs Act violation but now, because he didn’t take any property from Terry, there’s coercion, but no extortion.
No extortion, no pattern of criminal activity. No RICO.
Of course, this doesn’t mean the Bureau of Prisons will be opening the doors of the federal pens and letting all the wiseguys go. There are plenty of other predicate offenses that can be used to establish a pattern of racketeering. The point is, now that extortion requires the actual obtaining of property, federal prosecutors will have to work that much harder to prove a RICO case.
The generally pro-life, anti-crime Bush administration has the generally pro-choice, anti-crime Clinton administration to thank for using RICO against abortion protesters. The statute was really never intended to be used against civil disobedience, but the high court didn’t do anti-organized crime law enforcement any favors with this decision.
Already, we’ve heard grumblings from judges and lawyers who have to rethink their instructions and tactics. It remains to be seen what effect the ruling will have on prosecutions, however.
http://organizedcrime.about.com/library/weekly/aa031203a.htm
