Could You Use That in a Sentence, Please? the Intersection of Prosecutorial Ethics, Relevant Conduct Sentencing, and Criminal RICO Indictments

By McClintock, William S. | Notre Dame Law Review, December 2013 | Go to article overview

Could You Use That in a Sentence, Please? the Intersection of Prosecutorial Ethics, Relevant Conduct Sentencing, and Criminal RICO Indictments


McClintock, William S., Notre Dame Law Review


INTRODUCTION

In the last fifty years, two developments transformed federal criminal law. First, Congress passed the Racketeer Influenced and Corrupt Organizations Act (RICO) (1) in 1970, allowing federal prosecutors to convict those who use enterprises to conduct patterns of racketeering activity. (2) Second, the United States Sentencing Commission promulgated the federal Sentencing Guidelines in 1987, (3) providing a complex sentencing framework intended to create uniformity while still preserving judges' power to consider the unique characteristics of each crime and defendant.

Both developments have enhanced the power of federal prosecutors. RICO allows prosecutors to achieve elevated sentences for convicted racketeers and to seize the proceeds of racketeering activity. (4) Because the Sentencing Guidelines reduce the sentencing discretion of the judge and place increased weight on the charges that the prosecutor brings, they give the prosecutor greater influence over a defendant's final sentence. (5) Although scholars have studied both RICO and the Sentencing Guidelines in depth, very little has been written about the ways in which the two frameworks interact.

This Note highlights a potential prosecutorial abuse at the intersection of RICO and the Sentencing Guidelines; specifically, how a weak RICO charge can create an unfair sentencing advantage over a defendant who is acquitted of that charge but is still convicted of at least one other count. Because this sentencing strategy involves two complex statutory frameworks, this Note requires a detailed overview of both the RICO Act and the current sentencing regime; this is necessary to clearly demonstrate how a faulty RICO indictment can be used to conceptually tie together otherwise unrelated acts and achieve an increased sentence under "relevant conduct" sentencing.

Part I will describe the United States Sentencing Guidelines, focusing on the concept of "relevant conduct" sentencing. Part II will discuss the key concepts of RICO, looking closely at the "relatedness" requirement for a RICO "pattern of racketeering activity." Part III will demonstrate how a prosecutor could use a weak RICO charge and allege a "pattern of racketeering activity" to connect two unrelated acts to one another, in order to argue later that these unrelated acts were part of the "same course of conduct or common scheme" for the purposes of relevant conduct sentencing. This Part will examine the corruption trial of former Alabama Governor Don Siegelman to illustrate how RICO's "pattern" concept can lead to post-trial confusion when evaluating a defendant's "common scheme of conduct" at sentencing. Part IV will argue that a prosecutor who intentionally confuses these concepts to gain sentencing leverage behaves both unethically and in a manner contrary to the purposes of the United States Sentencing Guidelines. As a result, this Note will recommend that judges be informed of this problem and that the Department of Justice prohibit this use of RICO indictments as part of its already-established RICO oversight process.

I. THE FEDERAL SENTENCING GUIDELINES AND "RELEVANT CONDUCT"

A. Historical Overview

In 1984, Congress passed the Sentencing Reform Act of 1984. (6) The Sentencing Reform Act established a seven-member Sentencing Commission to draft Sentencing Guidelines that would take effect in late 1987. (7) The Sentencing Reform Act had as its twin goals achieving "honesty in sentencing" and eliminating unjustifiably "wide sentencing disparity." (8) Tasked with these goals, the Commission set out to transform a byzantine and chaotic array of federal criminal statutes into a transparent, consistent, and equitable sentencing system.

At their core, the Sentencing Guidelines are a struggle between a "real-offense" sentencing regime and a "charge-offense" system. (9) In a real-offense system, the prosecutor brings charges under a particular federal criminal statute. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Could You Use That in a Sentence, Please? the Intersection of Prosecutorial Ethics, Relevant Conduct Sentencing, and Criminal RICO Indictments
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.