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Why Aren’t the Feds Using RICO to Go After ACORN?

Evidence shows ACORN has committed the predicate crimes that would allow the government to prosecute them under the racketeering statute.

by
Clarice Feldman

Bio

October 21, 2008 - 9:01 am

In the Saturday afternoon thrillers that occupied us as kids, after the settlers were beset by the rustlers and thieves, the sound of pounding hoofs and a plume of dust heralded that help, in the form of the United States cavalry, was on its way.

As I watch helplessly day after day as exhausted poll workers are swamped by tens of thousands — possibly hundreds of thousands — of forged, faked, and illegal voter registrations, preventing them from doing their job and assuring a fair and orderly election, I keep waiting for the cavalry in the form of the FBI and Department of Justice. But I hear no hoof beats and see no dust.

There was a rumor circulating last week that U.S. Attorney Patrick Fitzgerald in Chicago was heading up a team looking into RICO prosecutions of ACORN, but it appears to have been wishful thinking. But now AP is reporting that two senior officials with the FBI are looking into the materials seized from ACORN office raids around the country to see if it can find evidence of coordinational national fraud on the part of ACORN.

Could the government use RICO (Racketeer Influenced and Corrupt Practices Act) to stop ACORN’s outrageous conduct? I think it could. Briefly, RICO 18 U.S.C. § 1961-1968. is a federal law providing extended penalties for those who commit any two of 35 crimes — 27 federal and eight state — within a 10-year period. The underlying crimes range from gambling to terrorism and include some offenses which would seem to cover the reported acts of ACORN (e.g., bribery, mail and phone fraud).

To give you an idea of how far the mail fraud sections of RICO have been utilized in federal prosecutions:

Prosecutors can build up on a foundation of “predicate acts” that:

may extend over two or three decades. They may include crimes on which the statute of limitations has run, crimes that could not themselves be prosecuted in a federal court, crimes that could not be joined with one another in separate prosecutions, crimes of which the defendant already has been convicted and for which he has been punished, and even crimes of which he has been acquitted in a state court. The courts, if faithful to the statute, have no way to prevent this sprawl.

Broader even yet than RICO prosecutions based on predicate crimes of mail fraud, bribery or other offenses, are those brought on conspiracy grounds:

Since he had been acquitted on the substantive RICO count, Mr. Salinas argued that had not committed the two predicate acts necessary to sustain a conviction for RICO conspiracy. Rejecting Mr. Salinas’ argument (as well as the rule in the First, Second, and Tenth Circuits), the Supreme Court applied the conventional meaning of the phrase “to conspire” and held that the RICO conspiracy statute requires only that the defendant intended to further criminal conduct that would violate RICO’s substantive prohibitions.(snip) The Supreme Court held that, although Salinas did not commit or agree to commit the predicate acts, “[t]he evidence showed that [the Sheriff] committed at least two acts of racketeering activity and that Salinas knew about and agreed to facilitate the scheme. This is sufficient to support a conviction under §1962(d).” Salinas, 1997 WL 737692 at *10. Thus, a RICO conspirator need not have committed or agreed to commit the underlying predicate acts so long as, if conspiracy’s object were accomplished, two predicate acts would be committed and the statute would be violated.

While the cavalry isn’t riding to the rescue even though they apparently have the means to do so, a group of Ohioans are. On October 14, the Buckeye Institute, whose membership includes former Ohio Secretary of State Ken Blackwell, filed suit on behalf of two Ohio voters against ACORN and Project Vote/Voting for America.

The suit is brought under the Ohio Corrupt Practices Act, a state law similar to the federal RICO act. Among its factual assertions are these developed in Congressional hearings:

  • From 2004-2006 ACORN has received $4.6 million in federal funds for its Housing Corporation.
  • ACORN has 150 subsidiary organizations with a total operating budget of over $110 million this year.
  • All the 150 subsidiaries operate from the top as a single enterprise, including the nonprofit Project Vote and the political operation known as Citizens Services.
  • Citizens Services has endorsed Barack Obama and has received over $832,000 from Obama’s campaign during the primary period for services.
  • ACORN and Citizen’s Services share the same board of directors. They also share office space in New Orleans.

The suit documents numerous instances of in-state predicate acts, including the following:

  • Forgery, uttering forged documents, tampering with writings and records.
  • Harassing people to encourage them to register multiple times; bribing people to register multiple times; registering non-existent and clearly ineligible voters (like minors); registering the same person in multiple counties; providing fraudulent and forged documents.

The suit documents numerous predicate acts committed by ACORN outside Ohio as well, specifically in Nevada, Indiana, Missouri, Colorado, Vrginia, Washington, Louisiana, Pennsylvania, Connecticut, New Mexico, Texas, Wisconsin, Minnesota and North Carolina.

The suit asks the court to take notice of the “lengthy and ubiquitous history of voter fraud, embezzlement, misuse of taxpayer funds” and concludes that ACORN’s pattern of fraud can no longer be dismissed as mere random unfortunate acts by some ACORN agents. Buckeye argues, and we can hardly dispute:

81. ACORN itself, and not just its agents, is responsible for the perpetration of the predicate acts articulated heretofore, in that it either acted with intent to cause these acts, or with negligence or reckless indifference as to whether these acts occurred.

82. Given its hiring, training, and compensation practices, ACORN knew or should have known that its conduct would cause fraud, and knows or should know that its conduct will cause fraud in the future.

I wonder: why the cavalry hasn’t suited up? Indeed, I can think of no good reason why it has failed to do so. Surely it’s as easy for the federal government, with all its resources, to start questioning witnesses and examining registration materials. It can examine ACORN’s books, and the materials seized from some of its offices. It can begin to prosecute this fraud which has such a damaging impact on the body politic and convinced the public that a fair election is impossible.

In the meantime, like settlers in the old Saturday afternoon oaters, we greet the band of heroes from Ohio with flowers and a hope that they will prevail in the coming battle.

Clarice Feldman is a retired litigation lawyer who lives in D.C. She's a news junkie addicted to the internet.
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