arts makes plain their involvement in a criminal organizatie:

RICO totally inverts many of these ordinary rules of criminal

trial, without amending a single one of them, by the simple expedient of redefining many separate physical crimes as a single abstract offense. Because the operation of an enterprise (the criminal gang) through a pattern of racketeering (a succession of separate crimes) is defined as a single offense, rules that confine the nature of a trial by focusing on the individual offense suddenly lose their character. For example:

..

Evidence that a defendant has committed other crimes in the

past becomes relevant, because such crimes can be charged as part of the pattern of racketeering. Multiple crimes, even crimes very different in

their nature or in the time or place of their commission, may be charged against the defendant in a single case.

Evidence that a defendant associates with disreputable colleagues is no longer extraneous, prejudicial matter, but is an essential element of the government's proof: in order to prove the existence of the enterprise, the prosecution may be able to demonstrate who the defendant associates with, and what those associates have done, even if the associates are not on trial and their acts are not among the charged predicates for the RICO violation. Indeed, where in the ordinary

trial evidence that the defendant was thought to be a member of the Mafia would normally be excluded as irrelevant and prejudicial to the question of whether he committed a particular crime, in RICO trials the

defendant's membership in the criminal enterprise 1: 61: element of the offense. Not only will proof of the defendant's involvement be admitted. but expert FBI agents may be permitted to testify at length about the nature and scope of the criminal enterprise.

Crimes that ordinarily would not be tried together can be joined. This is true in several respects. If a defendant is charged both with narcotics offenses and bank fraud, courts would normally sever the charges, so that the defense of the white-collar charge would not be prejudiced by evidence of his involvement in a more nefarious business. But if both crimes are alleged as part of a RICO violation, because both were allegedly committed in furtherance of a single criminal enterprise, the two offenses cannot be severed, since they are now part of a single

crime.

This kind of joinder is also permitted across

jurisdictional lines. If the defendant was charged with murder as well as with a narcotics offense, the two offenses could not be tried together in a federal court, because murder (except in rare situations) is not a federal offense. If the crimes were allegedly committed in separate states, they could not be joined in any court, since different states would have jurisdiction of the state offenses, and, even if two federal offenses were involved, venue would lie in different federal districts. But RICO permits a jury in the same federal district to hear about all of the defendant's misdeeds at once. If all of his acts were related to an ongoing criminal enterprise, they become part of a single crime, with

Jurisdiction in the federal court and venue lying whenever any part of the crime was committed. 16

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Mass trials of large numbers of defendants charged with participating in the same RICO enterprise become not only possible, but expected. A defendant charged with RICO conspiracy for participating in some minor, non-violent ventures of the enterprise may be forced to sit through a trial lasting many months in which he or she is mentioned only during a few days of testimony, while the more horrible misdeeds of numerous co-defendants are related at length. But a severance is not required, because all the defendants are participants, in their separate ways, in a single crime.

..

Defendants may be forced to defend against accusations that they committed a crime a number of years ago. While punishment for that crime itself may be barred by the statute of limitations, since RICO is a single crime, so long as the pattern of racketeering is alleged to have continued to within five years of the date of indictment, predicate acts that took place long ago may be charged as part of the same offense. 17

16 For example, in a RICO case involving Croatian nationalist terrorists, a jury in the federal court in New York convicted defendants of RICO violations based on crimes that took place in Chicago, Los Angeles, Canada, South America and Europe. No offenses other than RICO were included in the case, apparently because none of the defendants had committed any specific federal crime in New York at all. See United States v. Bagaric, 706 F.2d 42 (2d Cir.), cert. denied, 464 U.S. 840 (1983). 17 The only limit is that crimes may not be charged as part of the same pattern if there is more than a ten-year gap between acts of racketeering. 18 U.S.C. §1961(5). But a RICO pattern is theoretically possible in which a defendant committed one crime four years ago, and another nine years before that, and another nine years before that.

On top of all of these disadvantages, the defendant in such an organized crime trial may be further disadvantaged by another feature of the forfeiture/provisional remedy structure of RICO, which may make it impossible for him to be represented by private counsel. How this happens requires some explanation.

Under RICO, forfeitable interests vest in the government not at the time of conviction, but at the time the violation is committed and 18 U.S.C. §1963(c). For example, a drug

the asset becomes forfeitable.

derived from

dealer's profits belong to the government from the moment he makes them. If he buys a Mercedes-Benz, he has bought it with the government's money. Not only is the Mercedes forfeitable (it is "property [racketeering] proceeds," 18 U.S.C. §1963(a)(3)), but the government can also recover the money itself from the car dealer, unless the dealer demonstrates that "at the time of the purchase [he] was reasonably without cause to believe that the property was subject to forfeiture." 18 U.S.C. §1963(c).

Well, maybe the car dealer can show that he had no reason to suspect he was being paid with tainted funds. But a criminal defense attorney being asked to represent someone indicted under RICO may have a harder time. How can he be "reasonably without cause to believe" his client's money is forfeitable when the indictment on which the client needs defense seeks forfeiture of all his assets as the product of

racketeering activity:lf Thur, unless the defendant has arets from son unquestionably legitimate source, any fee the defendant pays his lawyer could be reclaimed by the government after trial. (And, if a restraining order is in place, he would not have access to his funds to pay the fee in the first place.)

The Supreme Court is currently considering whether this is indeed the consequence of the forfeiture provisions of RICO and the parallel narcotics forfeiture statutes, and, if it is, whether the statutes are to that extent constitutional.19 I would expect the Court

to hold that RICO does require this result, and that there is no violation of the Sixth Amendment's right to counsel, since there is no right to use the proceeds of crime to hire a lawyer. But whether or not there is a constitutional violation, there is something at least apparently unfair about preventing a defendant from using in his own defense money that has not yet been proven not to be his. It isn't quite the same as the money found in the sack of the bank robber caught redhanded, after all; whether the money in question is forfeitable is likely to be a hotly contested issue at trial. Once again, the open-ended

18 This problem, of course, is much less threatening to white-collar defendants, who generally have substantial assets that come from their legitimate activities. That is not inevitably the case, however. The RICO indictment of participants in the New York City Parking Violations Bureau scandal sought forfeiture, among other things, of the city salary of at least one defendant, apparently on the theory that it was a fruit of the crime, since he would not have been given the job had he not been a participant in the corruption plot. In such a case, it is difficult to see where the defendant could come up with untainted assets to pay counsel.

19 See United States v. Monsanto, 852 F.2d 1400 (2d Cir.) (en banc), cert granted, 109 S. Ct. 363 (1988); In re Caplin & Drysdale, 837 F.2d 637 (4th Cir.) (en banc), cert. granted, 109 S. Ct. 363 (1988).

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