H.R. 5697 Series—Part V: The Power of RICO

judges-gavel-and-handcuffsd This is a multi-part series on the Whistleblower Protection Blog covering the Wildlife Conservation and Anti-Trafficking Act of 2018. 

What do Atlanta teachers, crooked investors, mafiosos, and Mexican cartel members all have in common? The answer: all were indicted under the Racketeering Influenced and Corrupt Organizations Act (RICO).

One of the most powerful federal criminal statutes, RICO allows prosecutors to go after large criminal organizations in one fell swoop. If the Wildlife Conservation and Anti-Trafficking Act of 2018 (H.R. 5697) is passed, wildlife trafficking syndicates may one day be added to the list above.

Originally passed in 1970, RICO was legislated with the intention of making it easier for prosecutors and law enforcement officials to go after organized criminal networks. RICO allows for the indictment of all members of a criminal organization, if individuals acting on behalf of the organization commits two racketeering crimes (known as predicate offenses) over a ten-year period. This makes RICO a powerful weapon for going after illegal syndicates that traffic in humans, weapons, and narcotics.

Applied to the wildlife context, RICO could also have a significant impact. It would allow law enforcement to go after high-level kingpins, corrupt officials, poachers, and other individuals that make up wildlife trafficking enterprises. While it is true that some of these groups are fairly dispersed and disorganized, RICO was specifically written to go after organizations that are more loosely connected than a legal business enterprise. The Supreme Court has explained for an association-in-fact enterprise to exist, it must (1) have a purpose, (2) requires the existence of relationships among those associated with the enterprise, and (3) longevity sufficient to permit these associates to pursue the enterprise’s purpose. Moreover, proof of a pattern of racketeering activity can be enough evidence for a jury to infer the existence of an association-in-fact enterprise. As the Court stated in another case, RICO “no more excludes criminal enterprises than it does legitimate ones.”

Even if the wildlife trafficking syndicates are loosely formed, the network of individuals that conspire to traffic goods have a purpose, commercial and interpersonal relations, and should have sufficient longevity to sell the wildlife products. As such, they are almost certainly an enterprise under RICO.

RICO is not confined to criminal law. It also has civil provisions that allow plaintiffs who suffer an injury in the United States to bring a case against RICO violators. In other words, businesses, individuals, and potentially nonprofits (along with prosecutors) could drag trafficking syndicates into American courts. While these possible plaintiffs would need to show they have standing (essentially whether a plaintiff has the ability to bring a case), civil RICO could be another tool to curb wildlife trafficking.

The application of RICO to wildlife trafficking would be a game changer. Combined with increased enforcement mechanisms and enhanced whistleblower provisions, RICO would lead to more traffickers getting caught and deter others from entering the trade. For the endangered species of the world, this is great news.

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