Re: RICO for real
- From: a_weisman@xxxxxxxxxxx
- Date: 24 Apr 2005 21:19:16 -0700
RICO ACT, Jeff Grell, Racketeer Influenced and Corrupt Organizations,
RICO, Attorney at Law - About the RICO Act
http://www.ricoact.com/ricoact/glossary.asp
Accrual - The moment at which all elements of a legal claim exist and,
thus, the moment at which a legal action can be filed on the basis of
the facts giving rise to the claim. When the injury produced by an
unlawful act is concealed or cannot be readily discerned by the victim,
accrual may be postponed until the plaintiff discovers or reasonably
should have discovered the injury caused by the wrongful acts. The
moment of accrual is important because the statute of limitations
begins to run at the moment of accrual.
Affirmed - The action of a higher court, or court of appeals, when it
agrees with the decision of a lower court and directs the parties to
abide by that decision.
Answer - The document filed by a defendant in response to a plaintiff's
complaint. In the alternative to an answer, a defendant may file a
motion to dismiss. In its answer, a defendant states whether it admits
or denies the factual and legal allegations set forth in the
plaintiff's complaint. If the defendant does not have sufficient
information to answer or deny the plaintiff's factual or legal
allegations, the defendant will simply state that it lacks sufficient
information to admit or deny a particular allegation. The answer also
states all of the defendant's legal defenses to the claim, such as the
claim is barred by the statute of limitations, the claim is not pled
with particularity, the complaint fails to state a claim upon which
relief can be granted, or many other legal defenses that may be
asserted by a defendant. See also "Complaint."
Bench Trial - Sometimes referred to as a "court trial." This is a trial
at which the judge, not a jury, serves as the finder of fact. See also
"Finder of Fact."
Citation or cite - A reference to a legal precedent or authority, such
as a case, statute or treatise that substantiates or contradicts a
given position.
Closed-ended Patterns - The Supreme Court has held that, under RICO, a
pattern of racketeering must be sufficiently continuous. A closed-ended
pattern arises whenever the defendant's wrongful conduct has
terminated. Even though a defendant's wrongful acts have ended, a
pattern may be sufficiently continuous if it occurred over a
substantial period of time. Generally, the courts consider one year a
substantial period of time.
Color of Official Right - An act of extortion may occur whenever a
defendant obtains the property of another, with his consent, under
color of official right. A governmental agent "obtains the property of
another under color of official right" whenever the governmental agent
threatens to exercise discretionary authority unless the victim gives
the agent money or some form of property. For example, a city health
inspector who goes to a restaurant and threatens to close the
restaurant, unless the owner gives him a free meal every day for the
rest of the inspector's life, is attempting to obtain a the property of
the restaurant owner (i.e., his food and labor) under color of official
right.
Complaint - The legal document that initiates a lawsuit. The complaint
is prepared by the plaintiff or victim and filed with the court in a
civil case and served on the defendant. The complaint should set forth
all facts material or important to the plaintiff's claim and all legal
theories upon which the plaintiff's claim is based. The complaint also
states the relief requested by the plaintiff.
Defendant - The person or entity who has allegedly engaged in unlawful
actions that harmed another (i.e., the plaintiff) and against whom the
plaintiff seeks to recover monetary damages caused by the harm.
Deposition - To "be deposed" or a deposition is a proceeding at which a
party or witness appears before a court reporter (stenographer) and the
attorneys in an action. The party or witness is placed under oath and
the attorneys ask the party or witness questions relating to the action
in which the deposition is taking place. Testifying at a deposition is
very similar to testifying at trial, except there is no jury or judge
present at a deposition and a deposition usually occurs in an office
(not a courtroom). If there is later a trial, the parties may or may
not call a witness who was previously deposed. Whether a witness will
be called at trial depends upon whether the witness can offer relevant
testimony on the issues that remain in dispute at the time of trial.
Discovery - Courts in the United States do not favor "trial by
surprise." In every civil action, there is a period of time during
which both parties have an opportunity to investigate the claims or
defenses of the opposing party. This period is usually referred to as
the "discovery period" and it typically begins after the defendant has
answered or otherwise responded to the complaint and continues for a
period of time (usually months) that the court believes is necessary
for both parties to fully and fairly discover (or investigate) the
other side's claims or defenses. During discovery, the parties
typically exchange documents, exchange written questions and answers
(known as interrogatories), and depose the parties and all third-party
witnesses. See also "Deposition."
Enterprise - the RICO Act defines an enterprise as "any individual,
partnership, corporation, association, or other legal entity, and any
union or group of individuals associated in fact although not a legal
entity." 18 U.S.C. ? 1961(4). Some courts have also stated that a RICO
enterprise must also have (a) some continuity of structure and
personnel; (b) a common or shared purpose; and (c) an ascertainable
structure distinct from that inherent in the pattern of racketeering.
Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 769 (8th Cir. 1992). A
RICO enterprise may be the group through which the defendant
perpetrates criminal activity or it may be the victim of the criminal
activity or a passive instrument of the defendants criminal acts. See
National Organization for Women v. Scheidler, 510 U.S. 249, 259 n.5
(1994).
Extortion - Each state has its own definition of what constitutes
criminal extortion or coercion. The federal extortion law is known as
The Hobbs Act, which defines "extortion" as "the obtaining of property
from another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right."
18 U.S.C. ? 1951
Finder of Fact - In every trial, some one or group of people must
resolve the factual disputes between the parties, e.g., someone must
decide whether the defendant pulled the trigger - the prosecutor says
the defendant pulled the trigger, the defendant says he didn't. If a
case is tried before a jury, the jury is the finder of fact while the
judge determines the applicable law. Many times, however, the parties
may waive their right to a jury trial and instead have a "bench trial."
In a "bench trial," the judge serves as the finder of fact and also
determines what law applies to the parties' dispute. The advantage of a
"bench trial" is that it is usually faster and less expensive than a
jury trial.
Gravamen - The material or significant part of a grievance or
complaint.
Hearing - A hearing may also be referred to as "oral argument." This is
a legal proceeding at which the court considers evidence and legal
arguments relating to a particular issue or motion brought while a case
is pending. At a hearing, the court's objective is not to resolve all
legal or factual issues in dispute between the parties (see "Trial"),
but to resolve a particular motion brought by one of the parties.
Witness testimony or documentary evidence may or may not be presented
at a hearing. Usually, however, the arguments of attorneys are made at
a hearing. The practical outcome of some hearings may resolve all
issues in dispute, for example, if a party brings a motion for summary
judgment, a hearing will usually be held on that motion. If the court
grants the motion after the hearing, the court is essentially saying
that there is no legally relevant factual dispute between the parties
and the action will end. On a motion for summary judgment, however, the
court does not resolve factual disputes, it considers the facts in a
light most favorable to the non-moving party.
Interrogatories - During discovery, the parties have an opportunity to
exchange written questions with each other. These questions are known
as "Interrogatories." If a party receives interrogatories from another
party, they are generally obligated to provide written responses to
those questions within 30 days. A party may issue interrogatories only
to another party. Interrogatories cannot be issued to persons or
entities who are not parties to the litigation.
Jury Instructions - After all documents and witness testimony is
presented at a trial, the jury receives written instructions from the
court. These instructions are developed by the parties and the court
before and during the trial. The instructions essentially inform the
jury of the law applicable to the dispute. In theory, the jury is to
apply the facts presented at trial to the law presented in the
instructions and to answer the verdict form. See also "Verdict Form."
Mail Fraud - Mail fraud is a federal crime set forth at Title 18,
section 1341 of the United States Code. Generally speaking, one engages
in mail fraud whenever a person uses the U.S. Postal Service to
advance, conceal, perpetrate, or further a scheme to defraud.
Motion - A document that may be filed by any party to a case and that
constitutes a request from the party filing the motion that the court
take or refrain from taking certain action. A motion is usually
accompanied by a memorandum that explains the party's position as to
why the court should take or refrain from taking the action at issue.
Whenever a party files a motion, the party opposing the motion usually
has an opportunity to respond by filing a memorandum in opposition to
the motion. The party filing the motion then typically has the right to
file another memorandum replying to the memorandum in opposition to the
motion. After these three memoranda are filed with the court, the court
will hold a hearing and each party will deliver oral arguments to the
court in support of their respective positions. In many jurisdictions,
courts do not automatically allow the parties an opportunity for oral
argument. In such jurisdictions, the parties must request oral argument
or oral argument may be available in a limited number of circumstances.
After the hearing or after all the memoranda are filed, the court will
issue an order granting or denying the motion. A court may also neither
grant nor deny the motion but enter an order proposing its own solution
to the matter at issue.
Motion to Dismiss - A motion filed by a defendant in response to a
plaintiff's complaint. Pursuant to a motion to dismiss, the defendant
essentially argues that even if all of the plaintiff's factual
allegations are true, the facts do not give rise to any liability under
the legal theories pled by the plaintiff. Motions to dismiss are
sometimes referred to as Rule 12(b)(6) motions, which is the Federal
Rule of Civil Procedure pursuant to which such motions are brought.
NOW - "National Organization for Women." NOW is a women's rights group
that is generally affiliated with a pro-choice stance on the abortion
issue. NOW has brought several civil RICO claims against pro-life
groups who protest against abortion clinics and who may, through their
protest activities, intimidate patients and employees, destroy medical
equipment and other property, threaten the lives of physicians, or
murder physicians.
Plaintiff - The person or entity who has been harmed by unlawful
actions and who initiates legal action against the person or entity
(i.e., the defendant) who engaged in the unlawful acts.
Pleading - The term "pleading" can mean one of two things.
Traditionally, the term "pleading" was used to describe only those
documents filed by the parties at the initiation of the law suit, i.e.,
the plaintiff's complaint and the defendant's answer. Many
practitioners and courts continue to use the term "pleading" only as a
reference to the complaint or answer. In recent history, however, the
term "pleading" has been used to refer to essentially any document
filed with the court in any action pending before the court.
Predicate Activity - See "Racketeering Activity."
PETA - "People for the Ethical Treatment of Animals." PETA is a
political protest group that has faced civil suits under the RICO Act
based on the group's non-speech and allegedly criminal actions, such as
breaking into laboratories, obtaining employment at testing facilities
by misrepresenting the reasons for which they seek employment, and
trespassing upon private property to release animals being bred and
raised for agricultural purposes.
Open-ended Patterns - The Supreme Court has held that, under RICO, a
pattern of racketeering must be sufficiently continuous. Wrongful acts
that threaten to continue indefinitely give rise to open-ended
patterns. For example, a mobster's single extortionate threat to break
the legs of a store owner unless the owner pays the mobster $1000 per
month constitutes an open-ended pattern of racketeering. An open-ended
pattern may also arise when criminal conduct becomes a regular way in
which the defendant does business.
Racketeering Activity - A RICO claim must be based on the defendant's
commission of criminal actions specified in 18 U.S.C. ? 1961(1). The
RICO Act refers to the specified criminal actions as "racketeering
activity" or "acts of racketeering." Sometimes these acts are called
"predicate acts" because all RICO claims must be predicated on the
commission of one or more of these crimes.
Relatedness - The Supreme Court has held that, under RICO, a pattern of
racketeering arises only if the criminal acts forming the pattern are
related. To be related, the criminal acts that form the pattern must
"have the same or similar purposes, results, participants, victims, or
methods of commission, or otherwise are interrelated by distinguishing
characteristics."
Remand - The action of a higher court, or court of appeals, when it
returns a case to a lower court with instructions to reconsider its
decision in light of the higher court's decision on appeal, to develop
further facts to support its decision, or to enter judgment.
Reversed - The action of a higher court, or court of appeals, when it
disagrees with the decision or to enter judgement of a lower court and
directs the parties to take the action ordered by the higher court or
directs the lower court to reconsider its decision in light of the
higher court's order of reversal.
Subpoena - An order from the court directing an individual or entity to
appear at a deposition or to produce documents to the parties in a
legal action. Usually, a subpoena is issued by the court at the request
of either the defendant or plaintiff. Subpoenas are not necessary to
obtain the testimony or documents of another party to litigation.
Subpoenas are necessary only when a third-party has information or
documents that are relevant to the dispute and that third-party is not
willing to appear voluntarily at a deposition or to produce documents.
Statute of Limitations - Most civil and criminal actions are subject to
a statute of limitations. Unless an action is brought within the period
set forth by the applicable statute of limitations, the action will be
barred. Statutes of limitation are designed to encourage diligence on
behalf of plaintiffs, to ensure that they do not sit on their rights
while evidence disappears and witnesses die. Statutes of limitations
are also intended to offer repose to defendants so that, after a period
of years, defendants may rest assured that they cannot be called to
court to answer for wrongs committed in the distant past.
Summary Judgment Motion - A motion frequently brought by defendants
after the parties have completed discovery or investigating the facts
upon which the plaintiff's claims are based. A motion for summary
judgment need not await the completion of discovery, but may be brought
at any time. A summary judgment motion may also be brought by a
plaintiff, but such motions are rarely brought by plaintiffs. Pursuant
to a summary judgment motion, the party bringing the motion argues that
if the court views all of the known facts in the light most favorable
to the non-moving party, the party bringing the motion is entitled to
judgment in its favor. In other words, the court does not resolve
factual disputes on a motion for summary judgment. Rather, the court
considers the facts in favor of the non-moving party and determines
whether the non-moving party is entitled relief in the "best case
scenario." Summary judgment Motions are sometimes referred to as Rule
56 motions, which is the Federal Rule of Civil Procedure pursuant to
which such motions are brought.
Third-party - Third-parties are persons or entities who are neither a
defendant nor plaintiff in an action but who may have information or
documents that are relevant to the plaintiff's claim against the
defendant. In such a case, a defendant or plaintiff may seek to depose
or obtain documents from these third-parties for use in the litigation.
See also "Subpoena."
Tolling - Tolling is a concept related to statutes of limitations.
Under certain circumstances, the running of a statute of limitations
will be tolled or postponed because, under the circumstances, it would
be unfair to expect the plaintiff to be aware of and bring action based
upon the defendant's wrongful conduct. Statutes of limitation are
commonly tolled when the defendant fraudulently conceals its wrongful
conduct or the plaintiff's injury, when the defendant threatens the
plaintiff with harm if the plaintiff brings a claim, when the plaintiff
is an infant or is incompetent, or when the defendant is in a foreign
country beyond the jurisdiction of the relevant court.
Trial - A legal proceeding whose objective is to resolve all factual
and legal disputes between the parties. A trial may be held with or
without a jury. If there is a jury, the jury will resolve all factual
disputes between the parties and the applicable law will be determined
by the judge. If there is no jury, the judge will resolve all factual
and legal disputes. A trial usually involves the selection of a jury
(if there is a jury), opening arguments, presentation of evidence /
witness testimony, closing arguments, instructions on the law,
deliberation, and a verdict. See also "Hearing", "Voir Dire," "Jury
Instructions", and "Verdict Form."
Verdict Form - The verdict form is a questionnaire developed by the
court and the parties before and during a trial. A verdict from
typically sets forth a number of "yes or no" questions that the jury
must answer. In answering these questions, the jury is to apply the
facts established by the parties at trial to the law given to the jury
in the form of jury instructions. In addition to the "yes and no"
questions, the verdict form usually asks the jury to enter a dollar
amount representing the damage award, if any, that the plaintiff is
entitled to receive. In essence, the verdict form is the expression of
the jury's decision in light of all the evidence and law presented at
trial. The verdict form tells the parties who "wins" and who "loses."
See also "Jury Instructions."
Voir Dire - To select members of a jury for a trial, the court, the
parties and the party's attorneys typically engage in a process called
"vior dire." Pursuant to this process, the court and the attorneys ask
questions of prospective jurors to determine whether they would be
suitable to sit on the jury for a particular trial. On occasion, the
term "voir dire" is also used to describe a series of questions put to
a particular witness to determine whether the witness is competent to
offer testimony on a certain issue.
Wire Fraud - Wire fraud is a federal crime set forth at Title 18,
section 1343 of the United States Code. Generally speaking, one engages
in wire fraud whenever the person uses interstate wires to advance,
conceal, perpetrate, or further a scheme to defraud.
.
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