The Prosecutor's Toolbox: Investigating and Prosecuting Organized Crime in the United States

Abstract

1. General Remarks

In the 1960s, U.S. Attorney General Robert F. Kennedy announced that the top priority of federal law enforcement was fighting organized crime. At the time, the principal concern was Italian organized crime groups, known colloquially as the mafia, after their Sicilian forbears, or La Cosa Nostra — loosely translated as ‘This Thing of Ours’, and reduced to the inevitable acronym in government-speak as simply the ‘LCN’. Organized crime had come to dominate legitimate industries as varied as interstate trucking and fisheries, and held tight control over networks of illegal businesses such as prostitution, gambling and loan sharking. Over the past half-century, federal and state authorities have met with increasing success in rolling back the influence of traditional organized crime groups such as the LCN, but these groups persist, and new groups continue to emerge and evolve. Asian gangs expand their loan-sharking activities into newly built casinos. Russian groups traffic in personal identification information stolen by computer hackers. Latin American organizations import and distribute cocaine and heroin. As organized crime has evolved, so have the ways in which American law enforcement has sought to respond.

The following pages outline some of the investigative tools and substantive criminal laws that have contributed to successes in combating organized crime in the United States, with a focus on those methods available to federal authorities.

2. Investigative Tools

One of the strategic needs of any investigation into organized crime is to preserve the secrecy of the investigation as long as possible. Once the targets learn that they are under investigation, they have an opportunity to destroy incriminating evidence, intimidate potential witnesses or interrupt their criminal activity until official attention is diverted elsewhere. Leaks about ongoing investigations can endanger the lives of undercover agents and cooperating witnesses. The damage wrought by a single corrupt agent or police officer can be incalculable, as evident in the recent prosecutions of former law enforcement officials in Boston on obstruction of justice and other charges.¹ For this reason, it is usually of paramount importance that investigative measures be taken outside the public eye as much as possible. Even though some investigative tools may disclose the existence of an investigation, or reveal the government's interest in a particular person or place, a careful and coordinated investigative strategy, which is cognizant of the confidentiality attendant to various investigative tools, can minimize the impact that such disclosures have on an ongoing probe.

One key tool at the disposal of federal prosecutors in every criminal investigation is the grand jury subpoena. The United States inherited from the English common law a powerful body known as the grand jury, a group of 23 ordinary citizens who operate entirely behind closed doors to hear evidence of potential criminal wrongdoing. Under the US Constitution, individuals have the right not to be charged with any felony — that is a criminal offence punishable by more than a year in prison — unless it has been approved by a grand jury. Practically, this means that prosecutors draft and propose criminal charges, and a majority of the grand jurors (deliberating and voting outside the presence of the prosecution) must concur. In order to bring evidence before the grand jury, prosecutors have the power to issue subpoenas compelling witnesses to testify under oath before the grand jury (facing questions from the prosecutors and the grand jurors themselves) or to produce documents. A witness may refuse to testify only upon invocation of one of the handful of privileges recognized by law, such as the privilege against self-incrimination enshrined in the Fifth Amendment to the US Constitution.²

One of the problems with using the grand jury as an investigative tool, however, is that the rules of secrecy bind only the government actors (the prosecutor, investigators, grand jurors and stenographer).³ The law does not preclude a witness from freely disclosing what he or she was asked. Thus, a prosecutor acts at the peril of his own investigation when he issues a grand jury subpoena to a witness. The nature and scope of the investigation, or even just the identity of the person who is subpoenaed, may become obvious in light of the questions asked in the grand jury. There are very few circumstances carved out by federal statute in which a grand jury subpoena may not be disclosed by a recipient. Most notably, a financial institution may be barred from revealing to any third party — including its customer — the fact that it has received a grand jury subpoena. This can provide investigators with the ability to remain effectively invisible during the months it may take to identify unreported income for tax offences; to trace the provenance and destination of bribe proceeds; or to untangle complex money laundering operations.⁴ But aside from these limited exceptions, the grand jury process alone cannot guarantee the complete secrecy of an investigation.

State and federal law enforcement agencies have always been able to apply for search and seizure warrants from judges by submitting a detailed affidavit setting forth evidence that there is probable cause to believe that evidence of criminal wrongdoing is to be found in a given location.⁵ Like grand jury subpoenas, however, search warrants generally have the disadvantage of disclosing the existence of an investigation to the target of the search. A copy of the warrant and a list of seized property must be given to the party whose premises are being searched.⁶ Although the government need not turn over the underlying affidavit at the time of the search, the warrant must contain a list of all items that are to be seized. That list can prematurely reveal the direction in which an inquiry is proceeding, and thereby frustrate future investigative efforts. Only in unusual circumstances can law enforcement authorities obtain a ‘sneak and peek’ warrant, in which agents are authorized to effect a surreptitious entry into premises (and possibly to seize items specified in the warrant) without giving immediate notice to the party whose premises are being searched.⁷

As communication technology has developed, state and federal legislatures have progressively authorized investigators to use new and evolving forms of electronic surveillance — an investigative technique that provides useful information while retaining an investigation's secrecy. Electronic surveillance can effectively penetrate tightly bound groups that jealously guard against infiltration by outsiders. By focusing on communication among participants, electronic surveillance turns one of the strengths of organized crime — the collective strength of multiple participants — into its Achilles’ heel. Not only can electronic surveillance give investigators a window into the operations of the group, but it also provides some of the most compelling evidence at an eventual trial.

The most intrusive type of surveillance is the wiretap, in which a judge authorizes agents to monitor the content of communications between private citizens — traditionally by eavesdropping onto telephone calls but now also by monitoring e-mail or instant message exchanges.⁸ The wiretap laws contain strict requirements that exceed even those required for a search warrant, requiring advance approval by a federal judge before authorities may engage in wiretaps.⁹ Before issuing a wiretap order, a federal district court must find (1) probable cause to believe that an individual is committing, has committed or will commit one of a list of specified crimes; (2) probable cause that communications concerning that offence will be obtained through the interception; (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or be too dangerous if tried and (4) probable cause that the facilities from which, or place where, the communications are to be intercepted are being used in connection with the commission of the offence.¹⁰ The warrant must also contain a particular description of the type of communication sought to be intercepted and a statement of the offences to which the communication relates.¹¹ The warrant must not allow the interception to continue longer than is necessary to achieve the objective of the authorization, and in any event not longer than 30 days, and the warrant must require the interception to be conducted in a way that minimizes the interception of calls not subject to interception by Title III.¹² Agencies generally must submit periodic progress reports to the judge who issued the warrant, summarizing the information collected, demonstrating that this information constitutes evidence of criminal wrongdoing and that it continues to be necessary to the investigation.¹³ A judge may extend a wiretap for 30 days at a time upon the same showing needed to initially obtain a wiretap.¹⁴

In order to amass enough evidence to obtain a wiretap order, however, agencies often must rely first on a range of other, less intrusive methods of surveillance. For example, American law permits law enforcement authorities to monitor the phone numbers dialled into or out of a telephone through technology known as trap-and-trace devices or pen registers.¹⁵ To obtain such an order, an attorney for the government need not (as with search warrants or wiretap orders) set forth evidence establishing probable cause to believe that the surveillance will uncover identified evidence of a crime. Instead, the attorney must simply certify to a federal judge that ‘the information likely to be obtained … is relevant to an ongoing criminal investigation’.¹⁶ Upon that certification, the judge may issue an order authorizing the real-time collection of such dialling information for up to 60 days, and that order is subject to renewal upon a re-certification by the government attorney.¹⁷ Moreover, the court order will preclude the telephone service provider from disclosing the existence of the surveillance device or the investigation to anyone (including the subscriber) unless authorized by the court.¹⁸ Agencies can also obtain court orders permitting them to track the movements of cell phone users, using the signals that bounce off signal-transmitting towers,¹⁹ and tracking devices can be placed on vehicles or objects.²⁰

Although these data-collection methods are central to most investigations of large-scale criminal groups, there is almost always still the need to hear the story from at least one person on the inside: a cooperating witness. When the cooperating witness is still inside the criminal organization, law enforcement may be able to have the witness ‘wire up’ and surreptitiously record conversations with his criminal associates. Often the most damning evidence in any case comes from the mouth of the target himself, whose words can be played back at trial. When the joint criminal activity is no longer ongoing — often, because the government's investigation is by now out in the open — the cooperator may still be invaluable as a source of historical knowledge about the case. And it is often the cooperator who can finger higher-ups in the criminal enterprise for their management role in particular offences.

The government has various tools at its disposal for incentivizing cooperation among criminals. In the usual case, the cooperating witness is already facing criminal liability, either because he has already been charged, or because the government has notified him of its intention to seek an indictment from a grand jury. Under federal law, sentencing judges must seriously consider a set of fairly tough guidelines when determining what a defendant's sentence ought to be. The guidelines establish a presumptive range of imprisonment to which the defendant ought to be subject, based in part on an assessment of the severity of the crime, which is assigned a numeric score. By pleading guilty in advance of trial, and thereby accepting responsibility for his crime, the defendant obtains a significant reduction (of two or three points) in his offence level and faces a correspondingly lower range of presumptive sentences.²¹

Beyond simply admitting his own guilt, a defendant can also be rewarded at sentencing for testifying and providing information about others, through a government motion certifying that he has provided ‘substantial assistance’ in the investigation or prosecution of other people. Such a motion can provide benefits to the defendant in at least three ways. First, it can permit the judge to impose a sentence below an otherwise applicable mandatory minimum sentence established by the offence in question²² — minimums which in the drug arena can range from 5 years to life in prison, depending on the type and quantity of drugs involved, as well as the defendant's criminal history.²³ Second, the government's motion can also permit a sentencing judge to depart downwardly from the presumptive sentencing range established by the federal sentencing guidelines.²⁴ Although these guidelines are advisory rather than binding,²⁵ they still serve as the baseline for sentencing decisions, and judges generally impose sentences within the ranges provided in the guidelines. Third, when a prosecutor certifies that a defendant has provided valuable cooperation, he provides some detail to the sentencing court about the scale and significance of the information provided. This information allows a sentencing judge to thoughtfully weigh the defendant's cooperation when assessing what sentencing discount, if any, to award the defendant.²⁶

In extraordinary circumstances, where a defendant's testimony is essential to prosecution, not otherwise obtainable, and the interests of justice dictate, a witness may be granted some form of immunity. Immunity can take different forms. Prosecutors can provide a witness with so-called ‘letter immunity’, or informal immunity, which essentially constitutes an enforceable contract pursuant to which the witness promises to testify truthfully, and the office issuing that letter promises not to prosecute the defendant for the activity under investigation in the prosecuting district in question. This type of immunity is often described as ‘transactional’, since it relates to the underlying criminal transaction.

In the case of a recalcitrant witness who is not willing to enter into such an agreement with the government, the prosecution may obtain a court order compelling the witness’ testimony and providing him with a different form of immunity, known as ‘use’ immunity.²⁷ The court order protects the witness by precluding any prosecutor — state or federal — from using the compelled testimony against the witness either directly or indirectly, for example, by providing investigators with leads as to where to obtain further testimony or evidence.

The government also has methods at its disposal to protect witnesses — whether co-defendants or innocent third parties — from potential harm by defendants. There are witness security programmes, through which a cooperating witness may be relocated and given a new identity, either in prison (in the case of an incarcerated witness) or not.²⁸ Just as importantly, however, a federal judge is empowered to protect witnesses by detaining an indicted defendant pending trial upon finding by clear and convincing evidence that he poses a danger to the safety of any other person or the community.²⁹

3. Criminal Offences

Using all of these tools, prosecutors have been able to assemble complex cases under laws recognizing new criminal offences, such as racketeering and money laundering. These laws focus on key attributes of large-scale criminal enterprises — their organization and their reliance on significant financial resources.

In 1971, Congress passed the Organized Crime Control Act, which contained many new tools designed to crack down on large-scale criminal organizations.³⁰ Among the most important provisions of this law was the Racketeer Influenced and Corrupt Organizations Act, commonly known as ‘RICO’.³¹ The racketeering laws have allowed prosecutors to link numerous members of large criminal organizations in a single overarching charging document, and to establish that their concerted association to commit multiple crimes constitutes a pattern of racketeering activity worthy of especially stiff penalties. For example, a federal RICO violation carries a maximum penalty of 20 years, which increases to potential life imprisonment if the underlying racketeering acts include offences like murder or large-scale drug trafficking, which themselves carry possible life sentences.

RICO extends criminal liability for group activities beyond the traditional concept of ‘conspiracy’ in the American system. Traditional conspiracy laws punish those who specifically agree to commit another substantive crime, where at least one member of the conspiracy takes an overt act calculated to achieve the goal of the agreement.³² Conspiracy law defines the crime in question fairly narrowly, in that it requires proof that each co-conspirator specifically intended that the agreed-upon crime come to fruition. In the organized crime context, this narrow focus may effectively insulate ‘upper management’ from conspiracy charges, since they are rarely involved in the day-to-day operation of the enterprise's crimes. Hence, it may be difficult to prove their participation as co-conspirators in the various crimes through which the enterprise carries out its work.

The racketeering laws address that problem by linking together a number of crimes committed by various subsets of participants, so long as they all relate to the activities of a single overarching criminal enterprise. The enterprise itself may be highly structured, with written by-laws (like the violent drug gang the ‘Latin Kings’) or an unwritten but accepted code of conduct (like the LCN), or it may be a somewhat less formalized group, known as an association-in-fact, which still has some discernible organization in which each participant has a distinct role. Under the federal racketeering law, the government must prove the existence of the enterprise, and that any given defendant participated in a ‘pattern of racketeering activity’ comprising at least two qualifying offences.³³

Moreover, the penalties under the racketeering laws are high not only as a theoretical matter, in the sense that the maximum penalty permitted by law is 20 years or life in prison. They are also serious in practice: a racketeering defendant will be sentenced by a judge against the backdrop of advisory sentencing guidelines that premise liability not only on those acts which were directly committed by the defendant, but also on any acts that he ‘aided, abetted, counseled, commanded, induced, procured, or willfully caused’, as well as ‘all reasonably foreseeable acts and omissions of others in furtherance of … jointly undertaken criminal activity’ that ‘occurred during the commission of the offense of conviction, in preparation for that offence, or in the course of attempting to avoid detection or responsibility for that offense’.³⁴ In the context of organized crime, then, a defendant must be prepared to be punished for his own actions, as well those of his cohorts, that were ‘reasonably foreseeable’ and in furtherance of their joint criminal activity.

Money laundering and asset forfeiture laws have also been powerful tools designed to deprive criminal organizations of the cash that is their lifeblood. For example, it is a crime for a person to engage in a financial transaction with the proceeds of a specified unlawful activity either with intent to promote that criminal activity, to engage in tax evasion or to conceal the nature of those illegal proceeds.³⁵ A person's criminal liability is premised on his knowledge that the proceeds came from ‘some form of unlawful activity’, even if the government cannot prove that he knew the precise nature of the underlying crime, whether loansharking, extortion or something else. As with the racketeering laws, money laundering carries stiff criminal penalties. A convicted defendant faces up to 20 years in prison and fines of either $500,000 or twice the value of the laundered proceeds. Significantly, the money laundering crimes (along with certain other offences) permit the federal government to obtain forfeiture of the assets involved in the crime.³⁶ If a defendant has dissipated those proceeds, the government is free to seize substitute assets from a convicted defendant which are traceable to such proceeds.³⁷ In some circumstances outside the money laundering context, such as drug trafficking cases, the government can even forfeit assets which were used to facilitate the underlying crime.³⁸ So, if a defendant uses his house to hide his drug stash, the government can obtain a court order forfeiting the house to the United States.³⁹

4. Conclusion

Organized crime continues to evolve in the United States and elsewhere, and so do the methods used to uproot it. As a practical matter, electronic surveillance methods including wiretaps allow authorities an essential window into the inner workings of criminal enterprises without tipping off targets about the existence of the investigation, and provide essential objective data that corroborates and confirms information provided by cooperating witnesses. Once the investigators have accumulated a critical mass of information, they often schedule a ‘take down’ of the organization involving a blitz of search warrants, subpoenas and witness interviews all scheduled for the same day, in an effort to collect as much information as possible before the now-alerted criminals can hide or destroy relevant evidence or deter potential witnesses from providing their information to authorities. Once all of this evidence has been accumulated, criminal statutes including racketeering and money laundering laws enable prosecutors to put all of this evidence before juries to establish the existence of broad-based joint criminal enterprises or to obtain significant penalties proportionate to the scope of the participants’ wrongdoing. Although none of these methods provides a silver bullet to rid society of organized crime, all of them when used in concert provide a useful array of tools for investigators and prosecutors charged with protecting the public from criminal predation.