Discussion Board Topic: What type of response has the criminal justice system and legislature had toward organized crime? Discuss various statutes and laws that attempt to combat orga

CHAPTER FIFTEEN

Organized Crime: Law Enforcement

Abadinsky, Organized Crime 10th ed.

On June 22, 2011, legendary Boston crime boss James ("Whitey") Bulger, age 81, was arrested by federal agents in Santa Monica, California. His capture ended a 16-year international manhunt. Recruited as an informant in the mid-1970s, Bulger had a virtual "get out of jail free" card in exchange for information. He disappeared in 1995 after an agent alerted him to an imminent indictment.

2

CONSTITUTIONAL RESTRAINTS

4th Amendment: Right to be secure against unreasonable searches and seizures; exclusionary rule.

5th Amendment: Right to remain silent.

6th Amendment: Right to speedy jury trial.

3

JURISDICTIONAL LIMITATIONS

 Constitution provides for a federalist form of government.  Powers are diffused to protect us against tyranny.  Municipality and state have most police responsibility.  Inefficient: Handicaps efforts to deal with OC.

National boundary limits.  Jurisdictional limitations can sometimes overcome

constitutional restrictions. However, 4th Amendment and exclusionary rule do not

govern seizures in foreign countries by those nations’ police. U.S. prosecutors can use that evidence in U.S. court actions.

4

CORRUPTION

Two basic law enforcement strategies:

 Reactive law enforcement: Encourages citizens to report crimes; the agency then responds.

 Proactive law enforcement: Officers/agents must seek out indications of criminal behavior.

Undercover officers are more prone to corruption because information gathered is not known to the police organization.

5

INFORMANTS

Criminal informant: Provides help to law enforcement.

 Financial rewards, vengeance, drive competition out of business, or secure lenience for him(her)self.

Risk: Overlook continued criminal activity.

Ethical and policy questions.

 Should the informant be given immunity from lawful punishment in exchange for cooperation?

 Should a murderer remain free because he or she is of value to OC enforcement efforts?

6

THE GRIM REAPER’S 1964 WORK FOR J. EDGAR HOOVER

1964: 3 civil rights workers missing in Mississippi.

At FBI’s direction, Grim Reaper (Gregory Scarpa) traveled to Mississippi, met with FBI agent.

FBI agent pointed out local KKK member.

Scarpa kidnapped the KKK member and convinced him that a failure to provide information would result in an inability to father children.

Shortly afterward, the FBI found the bodies of the missing civil rights workers.

7

BOSTON

“Whitey” Bulger, vicious crime boss of Southie, insular Irish South Boston neighborhood.

1976: Whitey Bulger became a government informant.

 FBI field offices were under pressure to wage an effective war against the American Mafia, known in New England as the “Office.”

 In return for informing on the Patriarca Family, Bulger and Flemmi were free to conduct criminal business safe in the knowledge they were protected by the FBI.

8

LAW ENFORCEMENT AGENCIES AND OC

There is no national police force in the U.S.  Constitution does not authorize federal police power.  Specialized federal enforcement agencies arose in an

unplanned and uncoordinated manner. Municipal (cities, counties, towns) police responsibility

is general, full-service enforcement.  Municipalities are not well equipped to fight OC.

States’ primary responsibility is highway traffic enforcement.

9

DEPARTMENT OF JUSTICE (DOJ)

 Judiciary Act of 1789 created the Office of Attorney General (AG).  Head of the DOJ  Chief U.S. law enforcement officer

94 federal judicial districts; U.S. Attorney in each, appointed by president.

Organized Crime and Racketeering Section (OCRS) coordinates and develops nationwide programs for responding to OC.

10

FEDERAL BUREAU OF INVESTIGATION (FBI)

 14,000 agents.

Major agency combating OC.

Uses RICO.

 Increased focus on terrorism could detract from FBI efforts to respond to organized crime.

 2011: Indictment of 130 members and associates of the American Mafia.

 Afterward, FBI downsized OC squads, merging Bonanno and Colombo squads and combining Lucchese squad with unit investigating Eastern European organizations.

11

DRUG ENFORCEMENT ADMINISTRATION (DEA)

 Single-mission agency; enforces federal controlled substances statutes. Manages national drug intelligence network.

 Regulates legal controlled substances trade.

 Accountability investigations of drug wholesalers, suppliers, and manufacturers.

 Inspects records and facilities.

 Investigates instances where drugs have been illegally diverted from legitimate sources.

 Agents stationed in other countries to gain cooperation in international efforts against drug trafficking and help train foreign enforcement officials.

12

U.S. MARSHALS SERVICE AND WITNESS SECURITY PROGRAM

Marshals provide security for federal court facilities and federal judges; transport federal prisoners; apprehend fugitives; serve civil writs issued by federal courts, including the seizure of property under provisions of RICO; and provide for custody, management, and disposal of forfeited assets.

Their most important OC task is administering the Witness Security Program.

13

WITNESS SECURITY PROGRAM

 Authorized by Organized Crime Control Act of 1970.

 24/7 security to witnesses while they are in a high-threat environment, including pretrial conferences, trial testimonials, and other court appearances.

 Witnesses and their families get new identities and financial help for housing, basic living expenses, and medical care.

 Job training and employment assistance may be provided.

 No Witness Security Program participant following program guidelines has been harmed while under the active protection of the U.S. Marshals Service.

14

BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (ATF)

2003: ATF transferred from the Treasury Dept. to DOJ.

 ATF tax and trade functions remain in Treasury.

Regulates firearms and explosives industries from manufacture and/or importation through retail sale.

 National Tracing Center (NTC) paper trail.

National Response Teams (NRT) investigate arson and bombings.

15

DEPARTMENT OF THE TREASURY: IRS CRIMINAL INVESTIGATION DIVISION

Net worth theory:

 Taxpayer’s net worth at beginning of tax period, minus net worth at end of the period.

Does net gain in net worth exceed reported income?

 IRS reconstructs a person’s total expenditures by examining the person’s actual standard of living and comparing it with reported income.

 Capone case taught a lesson: “Management-level persons in OC report their income—at least the part they spend.”

16

DEPARTMENT OF HOMELAND SECURITY (DHS)

Homeland Security Act of 2002 transferred some Treasury Dept. agencies to the DHS.

 Customs Service and Border Protection (CBP) has authority to search outbound and inbound shipments.

 Immigration and Customs Enforcement (ICE). Investigates immigration crime; human, drug, and arms smuggling; finance crimes, export matters, and cyber-crime.

 Coast Guard: Interdicts contraband on the seas.

 Secret Service: Safeguards U.S. payment and finance systems; Electronic Crimes Task Force; safeguards president and others.

17

A FISHY HAUL

In 2004, Naval frigates with Coast Guard officers aboard intercepted two ships from Colombia 300 miles west of the Galapagos Islands. The first had 30,000 pounds of cocaine hidden in a sealed ballast tank; the second contained 26,000 pounds of cocaine hidden under fish and ice in the cargo.

18

DEPARTMENT OF LABOR OFFICE OF INSPECTOR GENERAL

Responsible for criminal investigation program to combat influence of OC and labor racketeering in the workplace.

OIG special agents of Division of Labor Racketeering conduct investigations in 3 areas:

1. Employee benefit plans;

2. Labor-management relations; and

3. Internal union affairs. Top priority is given to American Mafia domination.

19

POSTAL INSPECTION SERVICE

The Postal Inspection Service, with about 1,400 criminal investigators, is responsible for protecting the integrity and security of U.S. mail and postal facilities.

Postal inspectors investigate the use of the mail to conduct fraud, the mailing of contraband, such as drugs, child pornography, hazardous materials including mail bombs, biological and chemical weapons.

20

DEPARTMENT OF HEALTH AND HUMANSERVICES

OFFICE OF INSPECTOR GENERAL (HHS OIG)

Health Insurance Portability and Accountability Act of 1996.

 Health Care Fraud and Abuse Control Program.

With AG and the HHS OIG, coordinates federal, state, and local law enforcement health care fraud and abuse activities.

Office of Investigations (OI) conducts criminal, civil and administrative investigations of fraud and misconduct.

With the FBI, OI responds to threat posed by international organized crime groups targeting Medicare and Medicaid.

21

DEPARTMENT OF DEFENSE (DOD)

1878 Posse Comitatus Act prohibits U.S. Army from civilian law enforcement. Air Force was added in 1956.

 Navy and Marines have administrative restrictions.

Until 1981, DOD limited its involvement in law enforcement to lending equipment and training civilian enforcement personnel in its use.

 In 1981, as part of a new “War on Drugs,” Congress amended the Act, authorizing greater military involvement in civilian drug enforcement.

22

INTERNATIONAL POLICE ORGANIZATION INTERPOL

Assists law enforcement agencies with investigative activities that transcend national boundaries.

U.S. National Central Bureau (NCB) connects with INTERPOL.

 NCB is co-managed by the U.S. DOJ and U.S. DHS.

Staffed with law enforcement personnel from federal, state, and local law enforcement agencies with DOJ analysts, translators, technicians, and administrators.

23

INVESTIGATIVE TOOLS IN ORGANIZED CRIME LAW ENFORCEMENT

 Intelligence: tactical and strategic

Electronic Surveillance

 Telephone tap

 Transmitter

 Telephone transmitter

 Laser interceptors

 Satellite relays

 Fiber optics

24

GRAND JURY

 In the federal system, a grand jury is a body of 23 citizens, operate with quorum of 16, and requires 12 votes for an indictment.

Grand jury members are not agents of the government.

 They are direct representatives of the citizenry.

 Extensive due process rights are not necessarily relevant to grand jury proceedings.

25

IMMUNITY

There are 2 types of immunity:

 Transactional immunity provides blanket protection against prosecution for crimes about which a person is compelled to testify.

 Use immunity prohibits the information provided by a person from being used against him or her, but the person can still be prosecuted using evidence obtained independently of his or her compelled testimony.

26

CHAPTER FOURTEEN

Organized Crime: Statutes

Abadinsky, Organized Crime 10th ed.

The Racketeer Influenced and Corrupt Organizations statute, enacted in 1970 and commonly referred to as RICO, is the most important single piece of legislation ever enacted against organized crime. RICO's criminal enterprise model represented a new approach in the government's prosecution of organized crime groups.

RICO and other statutes used in response to organized crime will be examined in this chapter.

2

INTERNAL REVENUE CODE

The 1927 U.S. Supreme Court decision in United States v. Sullivan denied the claim of self-incrimination (5th Amend.) for failure to file tax return on illegal gains.

This decision enabled the federal government to successfully prosecute Al Capone and members of his organization.

3

CONROLLED SUBSTANCES STATUTES

 1914 Harrison Act: Illegal to sell or give away opium or coca or derivatives without written order on an IRS form.

 1970 Comprehensive Drug Abuse Prevention and Control Act: A new legal approach to federal drug policy—not the taxing power, but federal authority over interstate commerce.

 1984 and 1986: Harsher sentences for certain drug offenses.

 1988: Military role in drug-law enforcement increased; record-keeping requirements for precursor chemicals; casual user civil penalties.

 2003: Illicit Drug Anti-Proliferation Act (“Rave Act”).

4

THE HOBBS ACT

Earliest statutes designed to deal with “racketeering” are known as the Hobbs Act and since 1946 they have been amended several times.

The Hobbs Act makes it a federal crime to engage in criminal behavior that interferes with interstate commerce.

5

SHERMAN ANTI-TRUST ACT

Enacted in 1890.

Prohibits agreement among competitors to fix prices, rig bids, or engage in other anticompetitive activity.

There are 5 general categories.

 Price fixing

 Bid rigging

 Complementary bidding

 Bid rotation

 Market division

6

LANDRUM-GRIFFIN ACT

 1957: Attack on Costello and murder of Anastasia, led to a meeting of leading Mafia bosses at estate of Joseph M. Barbara, Sr., boss of the Northeastern Pennsylvania crime Family, in upstate Appalachian, NY.

 NY police sergeant was suspicious of the activities. He conducted a raid and “dozens of well-dressed men ran out of the house and across the fields in all directions.”

 Using roadblocks and reinforcements, police arrested the men.  The Appalachian raid made headlines around the country. Many

of the men claimed to be labor-management consultants. The Senate acted, establishing the Select Committee on Improper Activities in the Labor or Management Field, chaired by Sen. McClellan of Arkansas.

 The hearings led to the passage of the Landrum-Griffin Act in 1959, establishing a Bill of Rights for union members.

7

CONSPIRACY

 The agreement is the corpus (body) of the crime.

U.S. does not criminalize participation in a criminal organization.

 Federal conspiracy statutes generally require the government to prove that 2 or more persons agreed to commit an offense and 1 or more of these persons did at least act to carry out the agreement.

 3 types of conspiracy:

 Wheel

 Chain

 Enterprise.

8

JOSEPH VALACHI

 In 1963, Senator McClellan, chair of the Permanent Subcommittee on Investigations:

 Televised hearings on OC.

 Introduced the public to star witness, Joseph Valachi.

Valachi discussed the Castellammarese War, Luciano’s murder of Masseria and Maranzano. He outlined the structure of each crime Family and their link through a national commission.

Testimony paved the way for the 1965 President’s Commission and the 1970 RICO statute.

9

TASK FORCE ON ORGANIZED CRIME

1965: Pres. Johnson established President’s Commission on Law Enforcement and Administration of Justice.

 Report of the Task Force on Organized Crime: “Today the core of organized crime in the United States consists of 24 groups operating as criminal cartels in large cities across the Nation.” (1967)

10

TITLE IX OF THE ORGANIZED CRIME CONTROL ACT OF 1970

Purpose “eradication of organized crime in the U.S.”

 Includes many offenses that do not ordinarily violate any federal statute: “[A]ny act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year.”

11

RICO PROVIDES FEDERAL JURISDICTION

The thrust of RICO is to prove a pattern of crimes conducted through an organization—an enterprise: “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity.”

 In order for racketeering to be a RICO violation, there must be a “pattern,” which requires the commission of at least two of the specified crimes within a ten-year period.

12

5 BASIC CRITICISMS OF RICO

1. Overreaching 2. Penalties are excessive 3. Invoking RICO can result in assets being frozen

before trial, effectively can put a company out of business. The threat of freezing assets can induce corporate defendants to plead guilty even when they believe themselves to be innocent.

4. Stigma of “racketeer” 5. Permits triple damages even when ordinary business

transactions, not OC or racketeering, are at issue.

13

USA PATRIOT ACT OF 2001

 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

 Increased law enforcement ability to search phone and e-mail, and medical and financial records.

 Eases restrictions on foreign intelligence gathering in the U.S.

 Expands Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities.

 Expands definition of terrorism to include “domestic terrorism.”

 Department of Justice has used these powers to pursue defendants for crimes unrelated to terrorism, including drug violations, credit card fraud, and bank theft.

14

THE COMMISSION CASE

 The RICO statute resulted in one of the most important prosecutions ever brought against the American Mafia.

 Task force from federal, state, and local law enforcement targeted the commission of Mafia Families in NY.

 Electronic surveillance used on an unprecedented scale—bugs were planted in cars, homes, and social clubs. In addition, the Bonanno Family was penetrated by an FBI agent to the point of his being proposed for membership.

 Government theory of the case: Cosa Nostra commission constituted a criminal enterprise and each defendant had committed two or more racketeering acts in furtherance of the commission’s goals.

15

CONTINUING CRIMINAL ENTERPRISE (CCE)

 CCE is similar in purpose to RICO but targets only illegal drug activity.

 The statute makes it a crime to commit or conspire to commit a continuing series of felony violations of the 1970 Drug Abuse Prevention and Control Act in concert with 5 or more persons.

 For conviction under this statute, the offender must have been an organizer, manager, or supervisor of the continuing operation and have obtained substantial income or resources from the drug violations.

16

CONSUMER CREDIT PROTECTION ACT (CCPA)

Targets loansharking.

Defines loan shark debt as any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time the loan is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.

17

FORFEITURE

There are 3 categories:  Criminal forfeiture: in personam (against the person).

It requires the government charge the property used or derived from the crime along with the defendant.

 Civil forfeiture: in rem (against the property). It is a device for denying someone the fruits of their criminal behavior.

 Administrative forfeiture: in rem. Permits seizure and forfeiture of property without judicial involvement.

18

BANK SECRECY ACT (BSA)

1970: In response to reports of people bringing bags full of cash into banks for deposit, Congress enacted the Bank Secrecy Act.

Reporting and recordkeeping requirements.

 Currency Transaction Report (CTR) ̶ over $10,000

 Suspicious Activity Report (SAR)

19

MONEY LAUNDERING

Money laundering is the process by which criminals or criminal organizations seek to disguise the illicit nature of their proceeds by introducing them into the stream of legitimate commerce and finance.

Money Laundering Control Act of 1986

 (MLCA)provides for civil confiscation of any property related to a money-laundering scheme.

20

ANTI-MONEY LAUNDERING LAWS

Bank Secrecy Act (1970)

Money Laundering Control Act (1986)

Anti-Drug Abuse Act of 1988

Annunzio-Wylie Anti-Money Laundering Act (1992)

Money Laundering Suppression Act (1994)

Money Laundering and Financial Crimes Strategy Act (1998)

Title III of the USA PATRIOT Act of 2001

 Intelligence Reform and Terrorism Prevention Act of 2004

21

TRAFFICKING IN PERSONS (TIP) STATUTES

Trafficking Victims Protection Act of 2000 (TVPA)

 Forced labor

 Sex slaves

Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT) authorizes the prosecution of Americans whose behavior involves the commercial sexual exploitation of children anywhere in the world.

22

IDENTITY THEFT

There are 4 types of identity theft:

1. Fictitious identity

2. Payment card

3. Account takeover

4. True name

23

ELECTRONIC SURVEILLANCE

Title III of Omnibus Crime Control and Safe Streets Act in 1968.

Bans private eavesdropping.

Authorizes federal officials and prosecutors to intercept wire or oral communications.

 Requires judicial authorization.

Certain legal conditions must be met.

24