Academic journal article Notre Dame Law Review

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

Academic journal article Notre Dame Law Review

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

Article excerpt


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.


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. …

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