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

Authors

William S. McClintock

Abstract

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.

Recommended Citation

William S. McClintock, Could You Use That in a Sentence, Please?: The Intersection of Prosecutorial Ethics, Relevant Conduct Sentencing, and Criminal RICO Indictments, 89 Notre Dame L. Rev. 985 (2014).
Available at: https://scholarship.law.nd.edu/ndlr/vol89/iss2/10