Once again, federal prosecutors have built their case against the “Miske Enterprise” defendants relying on laws regarding conspiracy and racketeering. It’s similar to the approach taken in the prosecution of former HPD Chief Louis Kealoha and his wife, Katherine, formerly a top city prosecutor.

The first count in the 22 count indictment made public last week alleges that ten of the eleven Miske defendants were part of a “racketeering conspiracy.” Only defendant Michael J. Buntenbah was omitted from the overall conspiracy alleged in the indictment.

The other ten defendants were, in the words of the indictment:

…members and associates of a criminal organization (hereinafter the “Miske Enterprise”). Members and associates ofthe Miske Enterprise operated principally under the direction and protection of MISKE, who used his power over members and associates of the Miske Enterprise, his reputation for violence in the community, and the various corporate entities under his control to enrich the members and associates of the Miske Enterprise and to protect their criminal activities.

This is very important because of the legal concept of “co-conspirator liability,” and because federal law gives more flexibility and enhanced penalties when prosecuting racketeering organizations.

The co-conspirator liability principle dates to a 1946 U.S. Supreme Court decision in the case of Pinkerton v. United States.

In that case, the Supreme Court held that members of a criminal conspiracy are liable for crimes committed by their co-conspirators in furtherance of the broader conspiracy.

If prosecutors are able to prove that an illegal conspiracy existed, those involved face criminal penalties not only for the conspiracy, but also for any specific criminal acts they or any other conspirator committed.

And then there’s RICO, the Racketeer Influenced and Corrupt Organizations (RICO) Law.

From the website Justia:

The federal Racketeering Influenced and Corrupt Organizations (RICO) law was passed in 1970 as the “ultimate hit man” in mob prosecutions. Prior to RICO, prosecutors could only try mob-related crimes individually. Since different mobsters perpetrated each crime, the government could only prosecute individual criminals instead of shutting down an entire criminal organization. Today, the government rarely uses RICO against the Mafia. Instead, because the law is so broad, both governmental and civil parties use it against all sorts of enterprises, both legal and illegal.

RICO allows for prosecution of all individuals involved in a corrupt organization. For mob prosecutions, that means that the government can go after top leadership as well as the hit men and capos. And RICO established much enhanced sentences, as well. John L. Smith described the impact of RICO in an article for the Las Vegas Review-Journal: “After RICO, mob families began to crack under the very real threat that members and associates could be indicted en masse for a wide range of criminal activity. … [E]ven the strongest stand-up guy would have trouble fading the 20-year (and more) sentences that began accompanying RICO convictions.”

While RICO was originally aimed at the Mafia, over the past 37 years, prosecutors have used it to attack many forms of organized crime: street gangs, gang cartels, corrupt police departments and even politicians.

Criminal RICO

To violate RICO, a person must engage in a pattern of racketeering activity connected to an enterprise. The law defines 35 offenses as constituting racketeering, including gambling, murder, kidnapping, arson, drug dealing, bribery. Significantly, mail and wire fraud are included on the list. These crimes are known as “predicate” offenses. To charge under RICO, at least two predicate crimes within 10 years must have been committed through the enterprise.

Note that an enterprise is required. This might be a crime family, a street gang or a drug cartel. But it may also be a corporation, a political party, or a managed care company. The enterprise just has to be a discrete entity; but an enterprise is not the same as an individual. Thus, a corporation may be the enterprise through which individuals commit crimes, but it can’t be both an individual and the enterprise.

The criminal RICO statute provides for prison terms of 20 years and severe financial penalties. The law also allows prosecutors to attach assets, so they can’t be whisked out of the country before judgment.

Taken together, this means it is going to be very difficult for the Miske defendants to counter the kind of case the government says it is going to present.