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Mother of mercy, RICO statute lives on

Mother of mercy, RICO statute lives on

For more than two decades, the federal RICO law was a pitiless tool in the fight against organized crime _ corralling, convicting and incarcerating a long string of mob bosses once considered untouchable.
But in 2006, federal prosecutors lost a pair of major RICO cases: Second-generation mob boss John A. "Junior" Gotti walked after three mistrials, and the most corrupt officers in NYPD history _ "Mafia Cops" Louis Eppolito and Stephen Caracappa _ had their convictions overturned.
Are these nothing more than legal oddities? Or, mother of mercy, is this the end of RICO _ the statute that allows prosecutors to jail mobsters for decades by tying them to as few as two crimes linked to a criminal enterprise?
"It's not the end," insists Notre Dame law professor G. Robert Blakey, the creator of the law. "A good RICO is virtually impossible to defend."
In both cases, defense attorneys used the statute of limitations to fend off the feds. Gotti's lawyer employed a withdrawal defense, claiming his client had quit the mob more than five years before his indictment, putting him beyond the reach of RICO.
Attorneys for Eppolito and Caracappa argued the defendants' crimes while on the payrolls of both the NYPD and a murderous Luchese family boss had occurred long before the five-year statute of limitations expired. Those crimes, committed between 1986-90, included participation in eight murders; a federal jury found both men guilty.
A federal judge _ who had just three weeks earlier said the two detectives had committed "the most heinous series of crimes ever tried in this courthouse" _ agreed with the defense lawyers, and reversed the cops' convictions last June.
Defense attorney Edward Hayes was part of the legal team that convinced U.S. District Court Judge Jack B. Weinstein to overturn the convictions of the "Mafia Cops." And Hayes believes their triumph could provide a blueprint for other defense lawyers: "Bruce (Cutler) and I made a very good team ... It's likely other lawyers (would) use us as a model."
Other attorneys, from both sides of the aisle, disagree.
"I don't think the statute of limitations defense is terribly appealing to juries, because there's almost an implicit statement _ even if the defense attorney is careful _ that `I did it, but ...'," said Jim Walden, a former federal prosecutor now in private practice.
"I think what you had were some talented lawyers, and cases with problematic cooperators," continued Walden, who spent nine years as an assistant U.S. attorney. "The arguments were successful, but I don't think it's a trend."
Veteran defense lawyer Ron Kuby agreed that there's no "huge lesson here for the defense."
Blakey has never explained the origin of his acronym for the law known officially as the Racketeer Influenced and Corrupt Organizations act. But it's often theorized the name was chosen in homage to the 1931 mob flick "Little Caesar," where Edward G. Robinson played a crook named Rico Bandello whose dying plea to "mother of mercy" is cinematic legend.
The law was initially designed not only to take down the mob, but also to target white-collar criminals. RICO was passed in 1970 _ and then largely ignored for years by shortsighted prosecutors.
Blakey recalled a 1972 visit to Whitney North Seymour Jr., the Manhattan U.S. attorney, where he eagerly explained the new statute's potential. Blakey remembered Seymour cutting him off with a curt remark: "You don't know what you're talking about."
It wasn't until 1985 that federal prosecutor Rudolph Giuliani seized on the RICO act as a way to indict the Mafia's ruling Commission, the heads of New York's five families.
Convictions came back against Genovese crime family boss Anthony "Fat Tony" Salerno, Colombo boss Carmine "Junior" Persico, and Luchese boss Anthony "Tony Ducks" Corallo, along with five other top level mobsters.
Federal prosecutors were now convinced that they had a friend in RICO. The mob cases were almost foolproof, and the list of convicted mobsters expanded. Genovese head Vincent "The Chin" Gigante, who had avoided conviction since 1970 by feigning mental illness, was finally brought down by a 1997 racketeering conviction.
The highest profile racketeering defeat, John Gotti Sr.'s acquittal at a 1987 trial, came only after the "Teflon Don" greased one juror with $60,000. And when the government brought a second racketeering case in 1992, Gotti was convicted, jailed and died behind bars.
More devastating for the mob were the stiff penalties with RICO: 20 years, minimum. A parade of mobsters became government witnesses, trading information for reduced sentences or a walk.
The racketeering cases also allowed authorities to use new informants to win convictions for ancient crimes, as long as prosecutors could demonstrate an ongoing enterprise. In the case of La Cosa Nostra families, that was rarely a problem.
Walden successfully prosecuted Bonanno family consigliere Anthony Spero for racketeering in 2001 _ a charge that included three murders dating back as far as a decade.
A RICO indictment "was an enormous advantage," he said. "A couple of cooperators and surveillance got you pretty far down the road. It produced spectacular successes, but the failures this year were spectacular, too."
The racketeering defeats came despite several cooperating witnesses in the Gotti and the "Mafia Cops" cases _ both of which involved crimes going back more than a dozen years. The main charge against the younger Gotti, that he ordered the kidnapping and beating of talk radio host Curtis Sliwa, occurred in 1992.
Three trials against Gotti produced three hung juries, with his lawyer able to convince members of each panel that Junior had walked away from the mob before 1999 _ five years before his latest indictment.
The "Mafia Cops" trial was less protracted, but more painful. The duo was tried once, after years of pursuit by law enforcement for crimes dating back to 1986. And the government convicted the pair on every count in their indictment.
But Hayes and Cutler argued there was no evidence that the conspiracy between the two detectives and the Luchese crime family had continued once the pair left the NYPD in the early 1990s. Weinstein agreed, and threw out the convictions.
"The Justice Department just way overstretched RICO," said Hayes.
Kuby believes the lesson in the Gotti and "Mafia Cops" cases is more for the prosecution than the defense.
"You can't take people decades later and try to make them answerable," Kuby said. "You have to do your best law enforcement work earlier, rather than later."


Updated : 2021-09-21 17:31 GMT+08:00