Can a retail theft gang be indicted under the federal RICO statute?

Retail theft can be a low-level crime like shoplifting by an individual, or a series of thefts and related crimes orchestrated by a sophisticated group of thieves. Federal prosecutors might be able to use RICO, the federal law that targets organized crime, to prosecute retail theft gangs—organized bands of shoplifters or identity thieves.

Under the Racketeer Influenced and Corrupt Organizations law (RICO), it is a federal crime to participate in or make money from racketeering, which is organized, illegal activity. Criminal prosecutions for racketeering can result in imprisonment and forfeiture of any ill-gotten gains and property used to facilitate the crimes (such as tools, vehicles, and even real property).

For more information on the federal racketeering law, see Federal RICO Laws.

Many states have their own RICO laws. For more information on state laws, see State RICO Laws.

What is Organized Retail Theft?

Usually, a retail theft gang has a leader, who directs other people (often petty criminals) to steal specific merchandise. They sell it to another person, who either sells the merchandise to a legitimate consumer or to someone who specializes in cleaning up (fencing) stolen merchandise and then selling it. Or, members of the gang may commit identity theft and use stolen credit information to purchase certain items, which they then return for cash. Some retail theft gangs are also involved in other criminal activities, such as drug dealing, prostitution, car theft, and burglary.

How Does a Prosecutor Charge Someone Under RICO?

Usually, RICO prosecutions begin when a federal prosecutor (a United States Attorney) brings evidence before the grand jury, which is composed of ordinary citizens who regularly meet to hear evidence of suspected criminal activity. In a closed proceeding, they review the prosecutor’s evidence, and if they decide that there is enough evidence for the case to proceed, they issue an indictment. (Sometimes, usually in misdemeanor cases, a prosecutor can skip the grand jury and issue a formal written charge, called an information.)

Whether a retail theft gang could be indicted under RICO depends on whether the prosecutor can show:

  • a pattern of racketeering
  • by a criminal enterprise
  • with some effect on interstate commerce.

These elements of the offense are explained in more detail below.

What is a Pattern of Racketeering?

Predicate crimes. The underlying crimes that make up a racketeering charge are known as “predicate crimes.” In a RICO prosecution, the government must prove that the defendant(s) committed two or more predicate crimes within the past ten years, not including any period of imprisonment. The list of predicate crimes is long but it does not include theft. It does however, include money laundering, transporting stolen goods across state lines, forgery, drug crimes, and financial crimes such as identity theft, and mail and wire fraud.

Pattern. The predicate crimes must be related and show continuing criminal conduct by some of the same people over time.

A prosecutor would probably not be able to indict a retail theft gang that engaged only in shoplifting. However, a pattern of racketeering might be proved if a prosecutor could show that members of a criminally sophisticated gang engaged in other related crimes as well.

What is a Criminal Enterprise?

Under RICO, a criminal enterprise may be a recognized legal entity (such as a corporation) or merely a group of individuals associated in fact (working together informally). To constitute a criminal enterprise, the group must:

  • be an ongoing organization that functions as a unit
  • have a common purpose, and
  • exist separate and apart from the members’ criminal activity.

If members of the gang came together once, only to shoplift, they would not constitute a criminal enterprise. However, if members met regularly over time and had some sort of decision-making structure, then they might constitute a criminal enterprise under RICO.

How Does a Prosecutor Show an Effect on Interstate Commerce?

Finally, the prosecutor must show that RICO violations involve or have some impact on interstate commerce.

A retail theft gang that had a widespread operation in more than one state or one that has a large economic impact within one state would probably have enough of an effect on interstate commerce to support an indictment.

Getting Legal Advice and Counsel

The consequences of a federal RICO prosecution are extremely serious. Generally, each RICO violation is punishable by up to 20 years in prison. RICO punishments include forfeiture, whereby the government seizes any profits that can be traced to criminal activity. If you are charged with a RICO violation, you should contact an attorney who has experience defending these sorts of cases in federal court. An experienced attorney can tell you how you are likely to fare in court based on the facts, and the judge and prosecutor assigned to your case. An attorney can also help you navigate the court system and obtain the best possible outcome in your case.

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