Time-Bars: RICO-Criminal and Civil-Federal and State

By Blakey, G. Robert | Notre Dame Law Review, April 2013 | Go to article overview

Time-Bars: RICO-Criminal and Civil-Federal and State


Blakey, G. Robert, Notre Dame Law Review


TABLE OF CONTENTS

INTRODUCTION
      I. RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT
         (RICO)
         A. Enactment of RICO
         B. Organized Crime Myth
         C. Criminal and Civil Proceedings
         D. Liberal Construction
         E. Criminal Enforcement
         F. Civil Enforcement
         G. Key Elements of RICO
     II. STATUTES OF LIMITATIONS IN CRIMINAL RICO CASES
         A. History and Justifications
         B. Determining the Limitations Period for Criminal RICO
            1. Federal RICO
            2. State RICO
         C. Determining the Point of Accrual
            1. Accrual and Commencement of Prosecution in
               Criminal Cases
            2. Accrual Problems in Criminal RICO Cases
               a. Pattern Violations
               b. Use/Investment Violations and Acquisition/
                  Maintenance Violations
               c. Conspiracy
         D. Tolling of Criminal Statutes of Limitations
            1. Federal Tolling Rules
            2. State Tolling Rules
    III. STATUTES OF LIMITATIONS IN CIVIL RICO CASES
         A. History and Justifications
         B. Determining the Limitations Period for Civil RICO
            1. Federal RICO
               a. Before Agency Holding Corp. v. Malley-Duff &
                  Associates, Inc.
               b. Agency Holding Corp. v. Malley-Duff & Associates,
                  Inc.
            2. State RICO
               a. When an Express Limitations Period Exists
               b. When an Express Limitations Period Does Not
                  Exist
                    i. Borrowing the Federal Period
                   ii. Borrowing the State Antitrust Period
                  iii. Borrowing the Limitations Period Based on
                       the Alleged Predicate Offenses
                   iv. Borrowing the Limitations Period for
                       Penalties and Forfeitures
                    v. Borrowing the Limitations Period for
                       Liability on a Statute
         C. Determining the Point of Accrual
            1. The Last Predicate Act Rule and Klehr v. A. O.
               Smith Corp
            2. The Clayton Act Rule
            3. The Injury and Pattern Discovery Rule and Rotella
               v. Wood
            4. Discovery Rule
         D. Tolling of Civil Statutes of Limitations
            1. Tolling
            2. Laches
         E. Case Study: Time-bars in Florida Under RICO
CONCLUSION

"There is an appointed time for everything." (1)

"Ripeness is all." (2)

"Statutes of limitations always have vexed the philosophical mind for it is difficult to fit them into a completely logical and symmetrical system of law.... [They] find their justification in necessity and convenience rather than in logic." (3)

INTRODUCTION

Most people can easily enough grasp the basic idea behind timebars. (4) The enterprise (5) of law has as its purpose "justice," (6) whether criminal (7) or civil. (8) This much is beyond serious dispute. At first glance, a time-bar merely involves two points in time: the time of the event, and the time of the initiation of the legal proceedings looking into the event. Obviously, as these two points in time separate more, the ability of any legal body accurately to resolve disputes about the facts making up the event--a necessary precondition to giving each person his or her due--becomes more problematic. Testimony, or the introduction of other evidence, is the basis for fact-finding in court. Yet, over time, memories fade. Participants and other relevant persons die or become unavailable. Documents are mislaid, lost, or stolen. Physical evidence deteriorates. Ultimately, "Justice" between two parties requires truth in fact-finding. At some point, the passage of time itself defeats "Justice." This much, too, is beyond serious dispute. Then the lawyers get involved in the bedeviling details. (9) How do you fix the metric of this far and no farther? …

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