Extortion and Racketeering: Coercion, Rico, and Legal Defense

Extortion and racketeering charges attach to two distinct categories of criminal conduct, with the extortion component requiring proof that the defendant obtained or attempted to obtain property or something of value from the victim through the communication of a future threat, and the racketeering component requiring proof that the extortion or other predicate conduct was part of a pattern of activity conducted through or on behalf of a criminal enterprise.

The essential element that distinguishes extortion from ordinary theft and robbery is the mechanism through which the defendant obtains the victim's property, because extortion requires proof that the defendant communicated a threat of future harm and that this threat caused the victim to experience a genuine and reasonable fear that induced the victim to transfer property or economic benefits to the defendant as a means of avoiding the threatened harm, and the threat need not be explicit because implied threats, threats communicated through intermediaries, and threats expressed through conduct can all satisfy the coercion element if the circumstances reasonably conveyed to the victim that harm would follow non-compliance with the defendant's demands. The extortion attorney and coercion practice areas provide the fear induction analysis and coercive communication defense needed.

Extortion and racketeering charges are distinguished from the closely related crimes of robbery and bribery by the timing of the coercive conduct and the mechanism through which the property transfer occurs, because robbery requires the use of force or the threat of immediate force at the time and location of the property transfer while extortion requires only the communication of a threat of future harm, and bribery requires not a threat but a voluntary corrupt agreement in which both parties exchange a thing of value for an official act, and the legal significance of these distinctions is that robbery carries a statutory minimum of three years of imprisonment without the possibility of a fine substitution, extortion carries up to ten years of imprisonment with greater plea bargaining flexibility, and bribery is subject to enhanced penalties based on the nature of the official duty corrupted. The bribery defense lawyer and coercion charge practice areas provide the comparative property crime analysis and charge distinction defense needed.

The RICO enterprise element requires the government to prove that the defendant participated in the conduct of an enterprise, meaning any individual, partnership, corporation, association, or other legal entity, or any union or group of individuals associated in fact, and the enterprise need not have a formal organizational structure or any legitimate business purpose, because courts have held that an enterprise can be established by showing that the associated individuals worked together for a common purpose, had an ongoing organizational structure, and functioned as a continuing unit, and the requirement of continuity means that isolated criminal transactions or short-duration conspiracies do not satisfy the enterprise element even if they involve serious predicate offenses. The federal criminal defense and money laundering practice areas provide the enterprise structure analysis and organizational continuity defense needed.

The extortion and racketeering provisions of RICO are triggered only when the defendant participated in an enterprise through a pattern of racketeering activity, meaning the commission of two or more predicate acts within a ten-year period that are related to each other and that demonstrate continuity of the criminal conduct, and the predicate acts that can constitute racketeering under federal law include financial crimes such as mail fraud, wire fraud, money laundering, and securities fraud, violent crimes such as murder, robbery, kidnapping, and violent extortion, economic disruption offenses such as embezzlement, bribery, illegal gambling operation, and drug trafficking, and obstruction of justice offenses such as witness intimidation, evidence destruction, and official bribery. The wire fraud and witness intimidation practice areas provide the predicate act element analysis and pattern of racketeering activity defense needed.

Federal law enforcement agencies investigating extortion and racketeering enterprises typically rely on Title III court-authorized wiretaps and electronic surveillance orders that require a judicial finding of probable cause that a specified crime is being committed, that normal investigative procedures have been tried and have failed or are unlikely to succeed, and that the surveillance is necessary to obtain the evidence sought, and when the enterprise uses encrypted communications, virtual private networks, or cryptocurrency to conduct its operations, investigators augment traditional surveillance with specialized digital forensics techniques including subpoenas to financial institutions, blockchain transaction analysis, and coordination with foreign law enforcement through mutual legal assistance treaty requests. The federal criminal defense and attempted extortion practice areas provide the electronic surveillance challenge and Fourth Amendment suppression strategy needed.

Federal asset forfeiture in extortion and racketeering cases proceeds on two parallel tracks, with criminal forfeiture authorized as part of a criminal conviction and civil forfeiture available independently of any criminal charge, and the criminal forfeiture process requires the government to prove at the sentencing phase that the specific assets it seeks to forfeit are the proceeds of the criminal enterprise's racketeering activity, the instrumentalities used to conduct that activity, or property of the defendant to the extent that the defendant's criminal proceeds cannot be fully recovered from traceable assets, while the civil forfeiture process requires the government to prove only that the assets were more likely than not connected to criminal activity, without requiring a criminal conviction. The DOJ seizure and money laundering practice areas provide the asset forfeiture challenge, legitimately acquired property defense, and third-party claimant protection strategy needed.

The most effective defense available to a defendant charged with extortion and racketeering who operated a legitimate business that was secondarily exploited by criminal elements is the demonstration that the defendant's participation in the alleged enterprise was motivated by legitimate commercial purpose rather than criminal intent, that the defendant lacked knowledge of the criminal nature of the enterprise's activities, or that the defendant's participation in any illegal activity was compelled by the same coercive threats that constitute extortion when directed against others, and a defendant who can show that their business relationships with other enterprise members were consistent with legitimate industry practice and that they actively sought to distance themselves from conduct they knew to be illegal significantly reduces the government's ability to prove the knowing participation required for RICO liability. The criminal defense and extortion attorney practice areas provide the legitimate business defense analysis and enterprise participation challenge needed.

The most significant strategic decision in any extortion and racketeering defense is whether to contest the charges at trial, where the risk of conviction on all counts and exposure to the maximum RICO penalties is substantial, or to engage the government in plea negotiations under which the defendant provides cooperation, information about the enterprise's structure and operations, and testimony against other enterprise members in exchange for the dismissal of the most serious charges, a sentence reduction, or both, and a defendant who can provide information about predicate acts, enterprise finances, or co-conspirators that the government could not easily obtain through its own investigation has substantial leverage in these negotiations. The federal criminal defense and criminal defense practice areas provide the predicate act dismissal analysis, cooperation agreement negotiation, and plea bargain strategy optimization needed.