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Nearly ten years ago Congress enacted the controversial Organized Crime Control Act of 1970. Its purpose was the “eradication of organized crime in the United States.” The proponents of the statute asserted that strong measures were necessary to battle a force which had “penetrated into the very roots of American life and society” resulting in a “stranglehold of our citizens.” Although the opponents generally favored such legislation, many, like the American Civil Liberties Union, believed that the Act went beyond the goal of destroying the power of organized crime and made “drastic incursions on the civil liberties of everyone.” The Act was further attacked as running “counter to the letter and spirit of the Constitution” and containing “the seeds of official repression.” The concerns expressed by the opponents have perhaps survived only as they relate to title IX of the OCCA. Title IX is entitled “Racketeer Influenced and Corrupt Organizations.” RICO prohibits the operation or acquisition of, or the acquisition of an interest in, through a pattern of racketeering activity, any enterprise engaged in interstate commerce. Provisions are made for criminal sanctions as well as civil damages, and violators are subject to civil orders of divestment and dissolution.

Since prosecutors began bringing charges under RICO, the courts have consistently rejected challenges to its constitutionality. Not only have the courts upheld RICO as valid legislation but they have been willing to construe its provisions liberally in accordance with section 904(a).

One such construction has particularly been at issue in the courts. Of the six circuits to interpret section 1962 of RICO, five have held that the section not only prohibits the infiltration of legitimate enterprises through a pattern of racketeering activity, but also prohibits racketeering activity regardless of any involvement with a legitimate enterprise. This conclusion is based upon reading the section 1961(4) definition of “enterprise” to include illegal as well as legal entities. The result is a prohibition of operating a racketeering “organization” through a pattern of racketeering.

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