blessed said:
Hawg, Sicandtired, or other, Can you please help explain?
Criminal individual, conspiracy and RICO. Can someone explain the benefits of each from a prosecution perspective and benefits over others. So lengthened statue of limitations is one for the latter two. I am guessing venue and being able to try outside DC is a huge one. Are there other prosecutorial benefits in what can be subpoenaed, penalties, discovery, etc. What is benefit of RICO over conspiracy and what is required in Spygate for Durham to reach it? Thanks.
First, there is a civil RICO and a criminal RICO. Both are very involved and difficult to prove without some snitches to give the inside scoop. Seems Durham has at least one if not more. By definition, the racketeering has to be in furtherance of a criminal enterprise. What was the criminal enterprise here, that we know of? I'm not seeing it, presently. So let's put RICO aside for now.
But one of Mueller's favorites was conspiracy to defraud the United States. That is applicable to these facts as we know them thus far.
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The general conspiracy statute, 18 U.S.C. 371, creates an offense "f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose. (emphasis added). See Project, Tenth Annual Survey of White Collar Crime, 32 Am. Crim. L. Rev. 137, 379-406 (1995)(generally discussing 371).
The operative language is the so-called "defraud clause," that prohibits conspiracies to defraud the United States. This clause creates a separate offense from the "offense clause" in Section 371. Both offenses require the traditional elements of Section 371 conspiracy, including an illegal agreement, criminal intent, and proof of an overt act.
Although this language is very broad, cases rely heavily on the definition of "defraud" provided by the Supreme Court in two early cases, Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924). In Hass the Court stated:
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The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.
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The maximum penalty for major fraud against the government in violation of 18 U.S.C. Section 1031 is 10 years' incarceration and/or a fine of up to $1,000,000.00. The maximum penalty for violations of 18 U.S.C. Section 287, the false claims statute, is 5 years in prison and/or a fine.
Discovery in federal criminal cases is dependent upon what the grand jury and the supervising judge allow by subpoena. People can always file a motion to quash, of course. But those are hard to win.
One other thing to keep in mind. Putting the idiots on Team Mueller aside, prosecutors will charge the case they feel they have the best chance of winning, not the case with the biggest bang for publicity reasons.