I've had a pair of requests for my RICO outline. Though much of it is geared to discuss remailers and the "prostitution car case" I'm reposting it. If people are REALLY intrested in a more specific outline, I'll consider pecking out another one. begin: Several people expressed interest in a small treatment of seizure law jurisprudence, and the Bennis case (seizure of an automobile used for soliciting prostitution was upheld even where one of the owners knew nothing about its use for a crime and which Mr. Bell has relied on fairly heavily in pointing out that the Supreme Court has its "head up its ass.") I want to point out that I'm not being paid for this. As a result anyone who takes this like legal advice, rather than what it is, i.e. an academic examination, does so at their own peril. -A- RICO I cover RICO because it's a popular prosecution tool, because it is the predominate vehicle for seizure and forfeiture in federal cases (of which remailer and encryption issues are likely to arouse) and because it represents a codification of the approach most courts take when dealing with seizure cases. In a very real way, RICO represents the outer extremes of seizure cases in the United States, and is probably, given the complexity of many state laws, the simplest way to "grab" something. It also has civil provisions which make "private prosecutors" out of you and me. Generally speaking, after its passage (1970) RICO was ignored. (Interested readers might look to Bradley, Racketeers, Congress and the Courts: An Analysis of RICO, 65 Iowa Law Review, 837 (1980). for a detailed review of its early development). It was "rediscovered" some years later, and grew in popularity because of the civil provisions for divestiture, dissolution, reorganization, and restrictions on future activites as well as treble damages under 18 U.S.C. 1964. Generally speaking, in order to secure a conviction with RICO, one must prove the existance of an "enterprise" and a connected "pattern of racketeering activity." RICO prosecutions are generally triggered by predicate acts, listed specifically in the statute. The statute lists these in the definitions section. (Section 1961) I reproduce some below to give the reader a feel for what is anticipated: As used in this chapter-- (1) "racketeering activity" means (A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substance Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: [bribery, sports bribery, counterfeiting, theft from interstate shipment, embezzlement from pension or welfare funds, extortionate credit transactions, mail fraud, transmission of gambling information, wire fraud, financial institution fraud, obscene matters, obstruction of justice, tampering with witnesses, informants or victims, money laundering, monetary transactions with respect to property derived from unlawful activity, sexual exploitation of children, white slavery, (some deleted)] (18 U.S.C. 1961) The activities specifically prohibited by RICO are also statuatorily defined. Specifically: (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity... in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the estlablishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.... (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of an unlawful debt. (Section 1962) (d) [or to conspire to do any of the above] The seizure provisions are contained in 18 U.S.C., Section 1963: (a) Whoever violates any provision of section 1962 of this chapter shall be [fined and imprisoned or both] and shall forfeit to the United States, irrespective of any provision of State Law-- (1) any interest the person has acquired or maintained in violation of section 1962; (2) any -- (A) interest in; (B) security of; (C) claim against; or (D) property or contractual right of any kind affording a source of influence over; [the enterprise violating section 1962]; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962. [...] (b) Property subject to criminal forfeiture under this sections includes-- (1) real property, including things growing to, affixed to, and found in land; and (2) tangible and intangible personal property, including rights, privileges, interests, claims and securities. The lead case generally used to outline the overall principals of RICO is United States v. Turkette, 452 U.S. 576 (1981). Most of the defining litigation surrounding RICO involved refining the definitions of "enterprise" and "pattern" of racketeering. Turkette indicates in part that: Section 1962(c) makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." The term "enterprise" is defined as including "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." (Turkette) Of primary importance, and the key issue in Turkette, is the fact that "There is no restriction upon the associations embraced by the definition: an enterprise includes any union or group of individuals associated in fact." Id. Both legitimate and illegitimate enterprises qualify. United States v. Hartley, 678 F.2d 961 (11th Cir. 1982) applied RICO to an otherwise legitimate corporate defendant. On the subject of passive involvement of a defendant in criminal activity the court in Haroco Inc. v. American Nat'l Bank & Trust Co. 747 F.2d 284 (7th Cir. 1984) offers: ...the defendants are surely correct in saying that the corporation enterprise should not be liable when the corporation is itself the victim or target or merely the passive instrument for the wrongdoing of others... The liable person may be a corporation using the proceeds of a pattern of racketeering activity in its operations. This approach... makes the corporation enterprise liable under RICO when the corporation is actually the direct or indirect beneficiary of the pattern of racketeering activity, but not when it is merely the victim, prize, or passive instrument of racketeering. This result is in accord with the primary purpose of RICO, which, after all, is to reach those who ultimately profit from racketeering, not those who are victimized by it. (This preference for enterprise liability has been followed by other courts. See e.g., Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393 (9th Cir. 1986); Commonwealth of Pa. v. Derry Construction Co., 617 F.Supp 940 (W.D.PA 1985). See generally, First, Business Crime, 1990) And Ravens v. Ernst and Young, 113 S.Ct. 1163, refines the definition of "conduct or participate" thusly: Once we understand the word "conduct" to require some degree of direction, and the word "participate" to require some part in that direction, the meaning of section 1962(c) comes into focus. In order to "participate, directly or indirectly in the conduct of such enterprise's affairs," one must have some part in directing those affairs. Of course, the word "participate" makes clear that RICO liability is not limited to those with primary responsibility for the enterprise's affairs, just as the phrase "directly or indirectly" makes clear that RICO liability is not limited to those with a formal position in the enterprise, [note 4] but some part in directing the enterprise's affairs is required. The "operation or management" test expresses this requirement in a formulation that is easy to apply... In sum, we hold that "to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs," one must participate in the operation or management of the enterprise itself. Let us assume for a moment then that the worst conspiracy one can imagine, involving all of the horsemen of the infopocalypse, uses a remailer to conduct its activities. Absent a showing that the conspiracy is involved, participating, or directing the operation of the remailer, or that the conspiracy used proceeds to support the remailer, it is pretty clear that the remailer, and the operator are a "passive instrument" of the conspiracy. One might also look to the Justice Department Guidelines for the use of RICO as a prosecutoral tool: "...it is not the policy of the criminal Division to approve "imaginative" prosecutions under RICO which are far afield from the Congressional purpose of the RICO statute.... Further, it should be noted that only in exceptional circumstances will approval be granted when RICO is sought merely to serve some evidentiary purpose, rather than to attack the activity which Congress most directly addressed- the infiltration of organized crime into the nation's economy." (9- 110.200, RICO guidelines preface). One might also look at the second circuit in Huber: "We further note that where the forfeiture [under RICO] threatens disproportionately to reach untainted property of the defendant... section 1963 permits the [court] a certain amount of discretion in avoiding draconian (and perhaps unconstitutional) applications of the forfeiture provision." In sum, provided no statute exists expressly felonizing the operation of e-mail forwarding or encryption, I wouldn't much worry about RICO. I might add that future legislation prohibiting "furtherance of a felony via encryption" or some such is almost certain to have a scienter requirement making innocent forwarders of such information who did not know they were furthering a felony immune from the statute, and thus RICO. -B- The Michigan Case, and why it has absolutely nothing to do with remailers. Mr. Bell has made a great to-do about the Bennis case (seizure of automobile absent showing that co-owner knew of criminal use of same). His connection of the case to remailers and is surrounded by a good deal of imagination, myth, and outright fabrication. I thought I would take a closer look and see what was to be found. Let me then dispel some of the myths. Myth #1: This holding means that any property can be seized for any crime and the owner placed at the mercy of the state at a whim. Totally false. The Michigan law is specifically written to allow property seizure in the specific instance of prostitution or gambling. Many states have forfeiture laws, but they are an extreme resort, and typically bear only on very narrow activities. Michigan, further, is at the draconian side of the spectrum. Michigan also has some of the toughest state drug laws in the country (Automatic life sentence without parole for mere possession without intent to distribute, of more than 650 grams of cocaine) Consider the Michigan law, reproduced below. Section 600.3801 of Michigan's Compiled Laws. states in pertinent part: "Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons... is declared a nuisance, ... and all... nuisances shall be enjoined and abated as provided in this act and as provided in the court rules. Any person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or place used for any of the purposes or acts set forth in this section is guilty of a nuisance." Section 600.3825 states in pertinent part: "(1) Order of abatement. If the existence of the nuisance is established in an action as provided in this chapter, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all furniture, fixtures and contents therein and shall direct the sale thereof in the manner provided for the sale of chattels under execution . . . . "(2) Vehicles, sale. Any vehicle, boat, or aircraft found by the court to be a nuisance within the meaning of this chapter, is subject to the same order and judgment as any furniture, fixtures and contents as herein provided." Mich. Comp. Laws Ann. @ 600.3825 (1987). Myth #2: This means that if your property is seized, you can never make an innocent owner defense to the seizure. Again, false. Many statutes allow innocent owner defenses and some courts will assume the availability of such a defense in absence of express intent by the legislature to the contrary. In this case there was such an expression. Namely: "Proof of knowledge of the existence of the nuisance on the part of the defendants or any of them, is not required." Mich. Comp. Laws Ann. @ 600.3815(2) (1987). Myth #3: If your car is stolen, and it is used in the sales of drugs, its gone baby. False. Most states recognize that use of property without the owner's consent insulates the property from seizure. Michigan is no exception. Note the Supreme Court's Comment in the Bennis Case: The Michigan Supreme Court specifically noted that, in its view, an owner's interest may not be abated when "a vehicle is used without the owner's consent." Id., at 742, n. 36, 527 N.W.2d at 495, n. 36. Myth #4: This is a new and outlandish holding by the Supreme Court. Nothing like this has ever been seen before. It represents a turn to fascism. The current Supreme Court has its head up its ass. False. The history of allowing seizure of property not taken without the owners consent, even if the specific use of the property was indeed without the owners knowledge goes back more than 150 years and can be traced to Britain's own practice (maintained to this day). Take the Supreme Court's comment again in the Bennis Case: Our earliest opinion to this effect is Justice Story's opinion for the Court in The Palmyra, 25 U.S. 1, 12 Wheat. 1, 6 L. Ed. 531 (1827). The Palmyra, which had been commissioned as a privateer by the King of Spain and had attacked a United States vessel, was captured [*10] by a United States war ship and brought into Charleston, South Carolina, for adjudication. Id., at 8. On the Government's appeal from the Circuit Court's acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the privateering. The Court rejected this contention, explaining: "The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing." Id., at 14. Myth #5: This means that if someone drives my car to the city, and then blows up a building and flees via subway, my car is history. False. In order to allow seizure, the property seized must typically be an "instrumentality" of the crime. Granted this is a bit of a obscure distinction at times, even to supreme court justices: The limits on what property can be forfeited as a result of what wrongdoing--for example, what it means to "use" property in crime for purposes of forfeiture law--are not clear to me. See United States v. James Daniel Good Real Property, 510 U.S., ___ (1993) (slip op., at 2-5) (THOMAS, J., concurring in part and dissenting in part). (Bennis) But it's fairly clear that this is a significant defense to seizure, and one which was never raised by the defense in Bennis: It thus seems appropriate, where a [challenge] by an innocent owner is concerned, to apply those limits rather strictly, adhering to historical standards for determining whether specific property is an "instrumentality" of crime. Cf. J. W. Goldsmith, Jr.-Grant Co., supra, at 512 (describing more extreme hypothetical applications of a forfeiture law and reserving decision on the permissibility of such applications).The facts here, however, do not seem to me to be obviously distinguishable from those involved in Van Oster; and in any event, Mrs. Bennis has not asserted that the car was not an instrumentality of her husband's crime. (Bennis) After getting the government's brief by fax this afternoon, it became fairly clear why the non-instrumentality defense was not made. After John Bennis was seen stopping and allowing Ms. Polarchio to enter his car, the Police followed him to a residential area, midway in the block, where his car stopped and the lights were turned off. (TR-63-65) After the police stopped behind the Bennis' auto, two heads were seen: a female on the right, a male on the left. Seconds later, the female head went down, disappearing toward the drivers side. (TR 65-66) When the officer observed John Bennis and Kathy Polarchio engaged in fellatio in the Bennis' car, John Bennis had his pants pulled down. (TR-67) (Bennis: Brief for the Government) It's pretty hard to argue that the automobile was not an instrumentality of the crime when it was used to pick up, transport and conceal the illicit sexual practices of the defendant. Myth #6: The court just doesn't care about property rights. False. The court spends a great deal of time thinking about the parties rights, and even suggests a different ruling had the car not be co-owned by the perpetrator of the crime. First, it bears emphasis that the car in question belonged to John Bennis as much as it did to Tina Bennis. At all times he had her consent to use the car, just as she had his. (Bennis) It also considered what Mrs. Bennis would actually gain from a ruling in her favor from a practical standpoint: Th[e] court declined to order a division of sale proceeds, as the trial judge took pains to explain, for two practical reasons: the Bennises have "another automobile," App. 25; and the age and value of the forfeited car (an 11-year-old Pontiac purchased by John and Tina Bennis for $ 600) left "practically nothing" to divide after subtraction of costs. See ante, at 3 (majority opinion) (citing App. 25).(Bennis) While it is tempting to damn the decision after listening to the sound bytes, there is much more going on here than a mere seizure. Remailer operators shouldn't be concerned (at least with regard to these cases) overmuch until a local state statute addressing remailers specifically is passed in a jurisdiction where the innocent owner defense is not permitted, or in any jurisdiction where such statute forbids resort to the innocent owner defense. I will, however, note that this about 3 hours work, and I wouldn't go betting the farm on it. -- Forward complaints to : European Association of Envelope Manufactures Finger for Public Key Gutenbergstrasse 21;Postfach;CH-3001;Bern Vote Monarchist Switzerland