U.S. v. Teller, et al.

Re: RICO Act/Sons of Anarchy (2008)

What is RICO? What does it stand for?  How is it used?

Sources:

Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961-1968 (2023 Edition).

18 U.S.C. §§ 932 (Straw Purchasing of Firearms), 933 (Trafficking in Firearms), 2339B. (Providing material support or resources to designated foreign terrorist organizations) (2023 Edition).

“Homicide,” California Penal Code §§ 187-199.

“Uniform Controlled Substances Act,” California Health and Safety Code §§ 11000 - 11651.

Boyle v. United States, 556 U.S. 938 (2009).

H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989).

Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994).

Reves v. Ernst & Young, 507 U.S. 170 (1993).

United States v. Martinez, 657 F.3d 811 (9th Cir. 2011).

CRIMINAL RICO: 18 U.S.C. §§1961-1968.  A Manual For Federal Prosecutors, Organized Crime and Gang Section, U.S. Department of Justice (May 2016 6th Rev. Ed.).

“Designated Foreign Terrorist Organizations” Bureau of Counterterrorism, U.S. Department of State.  https://www.state.gov/foreign-terrorist-organizations/

“Mafia Commission Trial” Wikipedia, accessed 2/2024.

Written, Researched, and Recorded by Céleste Young, 2023-2025.
Music: Out On My Skateboard - Mini Vandals

Waitisthatlegal@gmail.com

Transcript

Hi, this is Céleste and this is Wait…Is that Legal?  A podcast that comes from my own curiosity about the legal questions raised in TV shows and movies to determine what would or should have happened in the real world.  So join me, a real lawyer, as I try to offer legal advice to fictional characters in fictional scenarios using real laws.  This podcast is not intended to offer real legal advice to real people in real legal situations, it is just for fun.

In 1985, then U.S. Attorney Rudy Giuliani embarked on an ambitious prosecution aimed to take down the Five Families of the New York Mafia and committee they used to control the city, called “The Commission.”  FBI investigations using informants, wire taps, and various other surveillance methods had yielded extensive evidence of the Commission’s control of the city’s cement companies and the involvement of the mafia in waste hauling on Long Island.  Of course, being a member of an organization, however strictly or loosely organized, is not in itself a crime.  Nor is it expressly illegal for a member of that organization to own and operate a legitimate business.  And for decades that was exactly how most organized crime operated in the United States, by using extortion and intimidation to reduce competition with their legal business fronts, or propping up legal businesses with profits from illegal activities.  By the 1960s, the infiltration of organized crime into labour unions and monopolized legitimate industries had become such a threat to the U.S. economy that Congress passed the Racketeer Influenced and Corrupt Organizations Act, known as RICO for short.  RICO was signed into law in 1970 and it was this law that Giuliani used to break up the Commission.  The RICO statute prohibits the intermingling of illegal activities and legitimate enterprises.  The Bosses of the Five Families and other mafia members were ultimately charged and convicted using RICO of drug trafficking, loansharking, gambling, labor racketeering, and extortion against construction companies.  All but one of the original 9 defendants, which included the leaders of the Five Families, were found guilty of racketeering and sentenced to 100 years in prison.  The odd defendant out was found guilty of murder instead and sentenced to 40 years.  That’s how powerful RICO is, that the guy convicted of murder got a sentence that was 60 years less than that of the racketeers’.  RICO continues to be an effective tool for federal prosecutors and has been used to break up lots of illegal operations, from organized crime, to criminal gangs, drug cartels, and even some labour unions.  In addition to the federal RICO statute, 33 states have enacted their own RICO laws, including Georgia where Rudy Giuliani has been indicted under Georgia’s RICO statute along with Donald Trump and other members of the Trump Campaign.

In the fictional realm, RICO made up a major plotline in Season 4 of the TV Show Sons of Anarchy starring Charlie Hunnam and Katey Sagal.  In the show, U.S. Attorney Lincoln Potter shows up in Charming, California to take down the Sons of Anarchy Motorcycle Club, the Real IRA, and the Galindo Drug Cartel using RICO.  By the last episode of Season 4, the RICO case is upended by the involvement of an undercover CIA operation.  It was never prosecuted in the show, but if Potter had gone ahead what would the case have looked like and could it have been successful?

First, let’s look a little deeper at what RICO is?  Again RICO is short for the Racketeer Influenced and Corrupt Organizations Act.  At its most simplified, the RICO Act makes it unlawful to use money made by racketeering in any enterprise connected to interstate or foreign commerce.  Really it prohibits these activities in 4 scenarios. 1) When a person makes money as part of a racketeering activity or the collection of unlawful debt and then uses those funds to invest in, acquire interest in, establish, or operate any enterprise engaged in interstate or foreign commerce.  2) A person acquires an interest in, or maintains control of, an enterprise engaged in interstate or foreign commerce through a pattern of racketeering activity or collection of unlawful debt.  Or, 3) A person that is associated with or employed by an enterprise engaged in interstate or foreign commerce participates in conducting the enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.  Finally, 4) it is unlawful for a person to conspire to do any of the above.  Those are some heavy legal definitions right there, and that’s condensed from the actual statute.  The essential elements in a RICO case are 1) a person or persons; 2) engaged in a pattern of racketeering activities or the collection of unlawful debt; and 3) there is a connection between the racketeering and an enterprise engaged in interstate or foreign commerce.

I. Person

A person as defined by RICO is any individual or entity capable of holding an interest in property.  So for our purposes, it can be both the individual members of the Sons of Anarchy, Galindo Cartel, or the Real IRA, or the groups as a whole.  Practically, an organization or association cannot be put in jail, that would be ridiculous, but the individual members can be put in jail.  The organization as a whole is subject to RICO in the form of criminal fines and forfeiture of assets, which is what makes a RICO case more effective than individually charging the members for their crimes.  Especially since RICO liability extends to the legal businesses that are benefitted or intertwined in the racketeering activities.  Potter’s RICO case centers on the Sons of Anarchy Motorcycle Club whose leaders at the time are Jax Teller and Clay Morrow.  The Sons of Anarchy are modeled after the Hells Angels, who themselves have been subject to a RICO case.  The Sons of Anarchy hold property as a club, owning the Teller-Morrow Auto Repair Shop and a stake in an Adult Film production company.  In the show, the Sons have several charter clubs in addition to the original charter, Sons of Anarchy Motorcycle Club Redwood Original (or SAMCRO) in Charming, a fictional town in the Central Valley of California.  There are also charters throughout the United States, with the main ones interacted with by SAMCRO being in San Bernardino, Fresno, and charters in Nevada, Arizona, Oregon, and Washington State.  They also have charters outside of the U.S., most notably in Northern Ireland.

The Galindo Cartel is likely modelled after similar drug cartels operating in Northern Mexico which are a main source of illegal drugs in the United States.  In the show the Galindo Cartel deals mainly in cocaine.  Unlike the other two groups the Real IRA is an actual group.  They are based in Northern Ireland and are designated as a foreign terrorist organization by the U.S. Department of State.

The Sons of Anarchy are the middlemen in a deal between the three groups which has the Galindo Cartel supplying cocaine to the Sons who distribute the drugs and use the money to pay the Real IRA for guns that are then transferred to the Cartel.  The CIA gets involved with agents inside the Galindo Cartel and holds the RICO case over the Sons in order to facilitate the transfer of the cocaine for bigger firearms for some unknown CIA purpose.  For the purposes of RICO, the Sons, the Cartel, and the Real IRA are the defendants in the RICO case.

II. Racketeering/Unlawful debt

So now that we know a little bit about the parties, let’s define racketeering and the collection of unlawful debts.  Unlawful debt is debt incurred from an illegal gambling operation or in connection to a business that lends money or valuable things at a rate that is illegal under State or Federal law.  So basically, loansharks and bookies.  The Sons of Anarchy have helped collect debts before in the show, but it is not a significant part of their operations. It also doesn’t seem to be part of Potter’s RICO case, so we will not be discussing it further.

Racketeering is a lot more involved.  The RICO act defines racketeering activities as any of the following state crimes: murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, and drug trafficking. Or federal crimes listed under Title 18 of the United States Code  which the statute then lists 86 sections, the highlights include: bribery; counterfeiting; theft; embezzlement of pension or welfare funds; illegal purchasing and trafficking of firearms, biological weapons, and nuclear material; mail and wire fraud, crimes involving human trafficking and false immigration documents; misuse of official documents (like passports and visas); obstruction of justice and witness tampering; money laundering; illegal gambling; interstate transportation of stolen goods, counterfeited goods, and certain restricted goods; and trafficking contraband cigarettes.  The Act was amended in 2001 to include federal offenses involving terrorism.

Generally, RICO is meant as a last resort or as a catch-all for criminal groups that are engaged in a broad array of activities.  If someone can be tried and convicted under a stand-alone criminal statute, like the Controlled Substances Act, then the Justice Department and the Courts would prefer that prosecution to happen instead of using RICO.  RICO is most effective when used against large groups of people that are engaged in activities that span multiple crimes and bleed into lawful businesses.  In the New York mafia case, Giuliani and the U.S. Attorney’s office had enough evidence to indict individual members of the crime families for criminal acts, but the structure of the mafia usually means the head of the “family” is not directly involved in the crimes committed under him.  RICO enables prosecutors to extend criminal liability to all members of a group engaged in a pattern of racketeering activities.

In Sons of Anarchy, the Club is arguably involved in a whole host of illegal activities.  Over the course of the show, several members of the club commit murder, either for personal reasons or on behalf of the club.  In return many of the Club’s members and close family members do not make it to the series finale.  Members of the Club are routinely in and out of prison, at one point most of the Club is imprisoned together.  The main scheme for the Club throughout the early seasons of the show is gun running and later they are also involved in drug trafficking.  As part of these main activities the Club routinely uses violence, blackmail, and other criminal acts to eliminate competition and to keep people silent.

Potter is a little unclear as to the specific predicate acts he is using in his RICO case, but he has plenty to choose from.  The strongest arguments could be made for the State crime of murder and the federal crimes of straw purchasing and trafficking of firearms, narcotics trafficking, and providing material support or resources to a foreign terrorist organization. These are also crimes the Cartel and the Real IRA are involved in with the Sons as part of Potter’s extended RICO case.  Each of these crimes has to be proven beyond a reasonable doubt on its own and only needs to be committed by a defendant to the RICO case.  The prosecutor does not have to prove the crime was committed to achieve the overall goals of the racketeering activities of the group.  I will go into the individual crimes briefly.

All three of the groups are definitely guilty of murder, although most of the murders committed by the Cartel and the Real IRA are likely subject to Mexican and United Kingdom jurisdiction, respectively.  The Sons of Anarchy Motorcycle Club is based in California, so murder would be defined by the California Penal Code which defines murder as the unlawful killing of another human being, or fetus, with malice aforethought.

Various members of the club are in prison or have gone to prison for murder.  Notably, Otto Delaney starts off in prison for a lesser charge but ends up on death row after several murders he commits in prison for the Club, some of which occur during the run of the show.  Clay Morrow, the Club’s President, is responsible for murdering several members of the Club both before and during the show’s timeline.  Juice Ortiz is responsible for murdering one of the Club’s prospects during the RICO investigation.  The Club advertises murder on their actual, literal chests.  If a member kills for the Club they are given a “Men of Mayhem” patch, so Potter can just start there.

Under California’s Uniform Controlled Substances Act any form of cocaine, other than cocaine base, is a Schedule II controlled substance.  Cocaine base (which is crack cocaine or freebase cocaine) is a Schedule I controlled substance.  Possession of cocaine or cocaine base as a first time offense is punishable by up to a year in the county jail, so it is a misdemeanor.  Possession of cocaine or cocaine base for sale is a felony under California law and is punishable by 2-4 years in prison.  Transporting for sale or importing cocaine and cocaine base into California is a felony punishable by 3-9 years in prison.

The Galindo Cartel is smuggling powder cocaine across the U.S.-Mexico border.  The cocaine is then transported by the Sons of Anarchy into California with the assistance of their Tucson, Arizona charter.  The cocaine is in bricks which make it obvious it is not for individual use but to be divided up and sold in smaller quantities.  The possession and transportation of this cocaine with the intent to sell it is a felony under California State law.

Straw purchasing of firearms is a federal offense defined as: “It shall be unlawful for any person to knowingly purchase, or conspire to purchase, any firearm in or otherwise affecting interstate or foreign commerce for, on behalf of, or at the request or demand of any other person, knowing or having reasonable cause to believe that such other person” is prohibited by law to purchase a firearm; intends to use the firearm in the commission of a felony, terrorism, or drug trafficking; or intends to sell or dispose of the firearm to someone else that meets this description.  Federal law prohibits the sale or transfer or firearms to any person knowing or having reasonable cause to believe that such person: is under indictment for or has been convicted of a felony; is a fugitive from justice; is a known user or addict of a controlled substance; is classified a [quote] “mental defective” [unquote] or has been committed to a mental institution for any time from the age of 16 or older; is an illegal alien, someone unlawfully present in the United States, or present under a non-immigrant visa; has been dishonorably discharged from the U.S. Armed Forces; has renounced their American citizenship; is subject to a restraining order or order of protection; has been convicted of any crime of domestic violence; intends to sell or distribute the firearm in furtherance of a felony, terrorism, or drug trafficking; or intends to sell or distribute the firearm to someone else meeting any of the previous descriptors.

Most of the members of the Charming Chapter of the Sons of Anarchy fit some of these criteria, and most of the people they sell the guns to definitely fit these criteria.  I mean, there is a reason they are buying guns illegally, it’s not exactly difficult to buy a gun legally in the U.S. When the Sons purchase the guns and import them from Ireland in order to sell the firearms to the fictional street gang in Oakland, the One-Niners, they are definitely aware the gang is going to use them to commit felonies or that many of the gang members meet one of the criteria that would make it illegal for them to possess a firearm.  As for the Galindo Cartel, selling the guns to the real members of the cartel would likely be illegal, but selling the guns at the direction of the CIA, is a much murkier topic.

Trafficking in firearms is a federal crime where it is unlawful for any person to: ship, transport, transfer, etc. to another person affecting interstate commerce when it is known or there is reasonable cause to believe that the possession of the firearm by the recipient would be a felony; receive a firearm through interstate or foreign commerce knowing or having reason to believe that its receipt would be a felony; or attempt or conspire to ship or receive firearms where there would be a resulting felony.

The Sons of Anarchy are both receiving firearms through foreign commerce and engaging in shipping guns in interstate commerce when they move the guns to other chapters of the Sons or to groups like the Galindo Cartel.  In both receiving and transferring the firearms they are committing felonies.  By receiving them from the Real IRA they are providing support to a designated terrorist organization, which is punishable under federal law by up to 20 years in prison.  And in transporting the firearms to various criminal gangs they are knowingly trafficking the firearms because most of the people they sell the guns to are not legally allowed to be in possession of them.  Not to mention that the Sons themselves are not licensed gun dealers.

And finally, the federal crime of providing material support or resources to designated foreign terrorist organizations which is defined as: knowingly providing material support or resources to a foreign terrorist organization, or attempting or conspiring to do so, when the person has knowledge that the organization is a designated terrorist organization, that the organization has engaged or engages in terrorism or terrorist activities.  Foreign organizations are designated as terrorist organizations by the U.S. Secretary of State’s Office.

In real life and on the show, the Real IRA are a foreign terrorist organization designated by the State Department.  The Real IRA are an offshoot of the Irish Republican Army that were not in favour of the ceasefire between Northern Ireland and the Republic of Ireland.  They are still active in Northern Ireland.  On the show, the Real IRA are closely associated with a chapter of the Sons of Anarchy in Belfast and the Real IRA and the Sons are longtime partners in a gun running operation.  The Real IRA sells and ships the guns to Oakland and then the Sons in California sell them to various criminal groups including the One-Niners and later to the Galindo Cartel.  No one in the Club is unaware of who the Real IRA are and what they are likely doing with the money and support of the two Sons chapters.

III. Pattern of Racketeering Activity

RICO requires that the defendant or defendants be involved in a pattern of racketeering activity.  The statute defines a pattern of racketeering activity to be at least 2 acts of racketeering within a 10 year period.  The Supreme Court has extended this definition, concluding that there must be something beyond just the number of predicate acts involved and that a pattern must include continuity and a relationship between the predicate acts.

In the show, Potter used signed affidavits from Otto and Juice, two members of the Sons of Anarchy, to establish past and present crimes.  Potter explains that he needs to establish the past, present, and future criminal behavior of the Club in order to prove RICO.  So, he uses Otto for the past, Juice for the present, and sets up a sting operation of a meeting between the Galindo Cartel, the Sons of Anarchy, and the Real IRA to establish the future criminal behavior.  It all sounds great for TV and makes it easy to see a narrative of criminal activities, but I could not find any mention of past, present, future in any relation to RICO.  It could just be Potter’s weird way of looking at the case, because he is kind of a weird dude, but it is not how RICO cases are set up.  Potter only needs to show 2 or more instances of racketeering activity within a 10 year period and pass the continuity plus relationship test.  The limitation on the 10 year period probably invalidates anything Potter got from Otto, because he has been in prison since before the events of the show began, so his experiences with the Club are likely too old to be used.  Except for the crimes he has committed in prison for the benefit of the Club, but it doesn’t sound like those were included in his signed statement.  Juice’s statements would likely be enough to establish a pattern of activity, provided he has disclosed at least two relevant crimes.  In particular, if his signed statement includes any of the murders that occurred in the show, the Club’s vote on the Galindo Cartel deal, details about the Club’s gun trafficking activities, or the deal the Club has with the Real IRA.  The continuity of the racketeering activities is shown in the decades long relationship with the Real IRA and the numerous shipments that the Sons have picked up and distributed.  The relationships between the various predicate offenses show that they all come from and are committed in furtherance of the same criminal scheme.  The murders sanctioned by the Club are to eliminate competition or to punish members and affiliates that threaten the Club’s business or relationships.  The drug trafficking and straw purchasing pays for the guns, which pays for the Real IRA’s political agenda.  The guns pay for the drugs, which furthers the Galindo Cartel’s hold on the illegal cocaine trade in the U.S.  All of this pays for the Sons lifestyle and influence in Charming, furthering their goals of…well it started as keeping drugs out of Charming... so I guess, their goals of buying and enjoying motorcycles…  So there is definitely a pattern of racketeering activity.

IV. Connection to an Enterprise

An enterprise can be any individual, partnership, corporation, or other legal entity, or even just a group of individuals that are associated in some way even if it is not a legal entity.  So, an enterprise can be anything from one person, to a company, to a workers’ union.  As defined by the statute an enterprise could even be a book club (although they likely would not be subject to RICO, because they are not engaged in interstate or foreign commerce).

The Sons of Anarchy Motorcycle Club is an enterprise.  It is, as Jax puts it in the show, a group of motorcycle enthusiasts.  Beyond being just an associated group of people, the Sons are organized and have a hierarchical structure, with a President, Vice President, Secretary, and Treasurer.  They also have rules and procedures for entry and excommunication.  Decisions are made democratically with all patched in members getting a vote.  The Real IRA and Galindo Cartel similarly meet the definition of an enterprise individually.  Whether the three groups form an enterprise together seems to be where Potter wants to go with this RICO case.  There is no formal structure between the three groups but they likely meet the standard for an association-in-fact enterprise.  The Supreme Court requires 3 structural features for an association-in-fact enterprise: [quote] “a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” [end quote]  The enterprise and the pattern of racketeering activity do have to be proved as separate elements of RICO, but they are not mutually exclusive either.  Potter would likely have an easier time showing the Sons and the Real IRA are an association-in-fact enterprise due to their decades-long relationship.  The Galindo deal is relatively new so it might be harder to prove they have the relationships and longevity with the Sons to form an enterprise.

V. RICO Offense

Now that all the elements of a RICO case are laid out and defined, we can ask whether Potter has a case against the Sons of Anarchy, alone, or against the Sons, the Galindo Cartel, and the Real IRA.  Section 1962(c) is the most common RICO offense charged, and is likely the most relevant here.  Although, if Potter were to go after only the Sons, then 1962(a) would be one way to do it.  1962(a) makes it illegal to invest the proceeds of racketeering activity into an enterprise that affects interstate commerce.  This section is used to stop ill-gotten profits from being used to invest in and operate legitimate businesses.  Basically, anytime Jax talks about wanting to go legit by first making one last big drug deal or gun shipment, this is would violate Section 1962(a).  To prove the Sons violated this provision Potter would have to dig into the finances of the Sons legitimate businesses to prove illicit funds were used to buy the Club’s interest in Cara Cara (the pornography studio started by Otto’s wife) and in operating Teller-Morrow Automotive.

To prove a violation of Section 1962(c) of the RICO Act, Potter needs to prove: 1) the existence of an enterprise; 2) that the enterprise engaged in or affected interstate or foreign commerce; 3) the defendant was employed by or associated with the enterprise; 4) the defendant was involved, directly or indirectly, in conducting the affairs of the enterprise; and 5) the defendant participated in the affairs of the enterprise through a pattern of racketeering activity.

First, let’s look at Potter’s potential RICO case against just the Sons of Anarchy.  First, in that case there is an enterprise, the Sons of Anarchy Motorcycle Club.  Second, the Club is engaged in interstate and foreign commerce through its connections to club charters in other States and other countries.  It uses these charters to extend its criminal activities beyond just California’s borders but also beyond the U.S.’s borders.  Third, the defendant, which would be the individual members of the Club, but in particular Jax Teller, is the Vice President and then President of the Sons of Anarchy which makes him very much associated with the enterprise.  Similarly, the other members of the Club are officially patched in and recognized members of the Club.  Fourth, Jax and the other members are involved in conducting the affairs of the enterprise.  All patched in members of the Club have a vote in all Club decisions, including whether they will take on a new illegal business opportunity and whether to excommunicate and murder members.  So even if the member is not the one physically transporting drugs or guns, or meeting with buyers, or firing the shot that kills someone, they are all involved in making the decisions that lead to the crimes being committed.  Fifth, the members of the club participated in the affairs of the enterprise through a pattern of racketeering activities.  All members of the Sons are involved in the everyday business of the Club and the illegal racketeering activity they vote to get involved in.  In particular, the Club is involved in racketeering activities like the State crimes of murder and drug trafficking, as well as federal crimes like straw purchasing and trafficking firearms, and providing material support to a foreign terrorist organization.  Within the show, the Club has engaged in at least two of the RICO predicate offenses, although it is a lot more than that and several counts of some of the crimes.  The pattern of these activities is shown by the continuity of the activities plus the relationship the activities have to the overall purpose of the enterprise.  Provided the evidence given by at least Juice holds up in Court, which it should because it is a signed statement detailing crimes committed by the Sons that can presumably be backed up by physical or circumstantial evidence.  Even if Juice and Otto later tried to withdraw the statements, that withdrawal would not invalidate the information in the statements if it can be corroborated with other information.  

An individual RICO case against the members of the Sons of Anarchy Motorcycle Club would likely be successful, though ultimately fruitless.  It is shown more than once that other charters or even other criminal groups are capable of stepping in to take over the Club’s illegal activities.  At one point in the show the Sons hand over the cocaine trafficking to the Mayans Motorcycle Club and the Real IRA deals guns to a White Nationalist group in one season and the Sons later vote to give the gun business to the Triads.  Putting the members of the Sons in prison would not end the distribution of guns and drugs; and the Club has limited assets that the government could seize.  For the level of criminal activity the Sons are involved in it doesn’t seem super lucrative.  The only expensive things the members of the club seem to indulge in is their motorcycles.  So Potter definitely had the right idea, that taking down the Sons of Anarchy was not the real goal of the RICO case, rather he only needed the Sons as his way in to shut down the actual source of the guns and cocaine.

In a larger RICO case involving the Sons of Anarchy, the Galindo Cartel, and the Real IRA, the same 5 elements must be proven.  First, an enterprise does exist; it is just not as structured as the Motorcycle Club.  The mix of the 3 groups forms an association-in-fact enterprise having the shared purpose, relationships, and longevity required by the Supreme Court.  Second, the enterprise is engaged in interstate and foreign commerce by trafficking drugs from Mexico through, at the very least Arizona and California, if not more states.  The firearms trafficking is also a part of this commerce with the importation of guns and other weapons from Northern Ireland into California and then selling them to a Mexican drug cartel.  Third, the defendant is anyone associated with the enterprise, so in this case where it is an association-in-fact enterprise the identity of the enterprise merges into the identity of the defendants.  For the Sons the defendants are all the patched in members because they are recognized members of the Club, for the Real IRA and the Cartel the defendants could be defined broadly as anyone who is a member or affiliated with the group.  Likely, Potter would want to sort out anyone that has committed or conspired to commit predicate RICO acts of racketeering that are related to the pattern of racketeering activities between the three groups.

Fourth and fifth, unlike with just the Sons, it will be difficult for Potter to show the defendants conducted or participated in conducting the enterprise’s affairs and that they did so through a pattern of racketeering activity.  All the Sons vote on every action of the Club, so they are all involved in the affairs of the enterprise.  However, when it comes to the Cartel and IRA, Jax makes some decisions that the Club isn’t even aware of, mainly that the Club is dealing with the CIA.  The Real IRA’s leadership structure consists of a ruling council and smaller service units that operate independently of each other, so members of the council and the specific unit involved in the enterprise would be the members that conducted and participated in the racketeering activities.  

The Galindo cartel is the outlier here, the internal structure seems to be the just the two guys at the top, although there are apparently other people in charge in Mexico.  The Supreme Court has made it clear that conducting and participating is not necessarily extended to all members of an enterprise, but instead to just those who participate in the operation and management of the enterprise.  The Supreme Court stated in the 1993 case, Reves v. Ernst & Young, [quote] “We agree that liability under Section 1962(c) is not limited to upper management, but we disagree that the ‘operation or management’ test is inconsistent with this proposition.  An enterprise is ‘operated’ not just by upper management but also by lower-rung participants in the enterprise who are under the direction of upper management.  An enterprise also might be ‘operated’ or ‘managed’ by others ‘associated with’ the enterprise who exert control over it.” [end quote]  To that end, it is also not clear what decisions are being made by the CIA and what are the ones being made by just the cartel.  An argument could be made that the CIA is also conducting affairs of the enterprise by making demands of the Sons and holding RICO over their heads, but government agencies are usually exempt from conspiracy statutes like RICO.  It might be easier for Potter to leave the Cartel to the CIA and focus on using RICO to take down the Sons and the Real IRA.

VI. Conclusion

In conclusion, the way RICO is described in the show Sons of Anarchy is wrong, but the information given is definitely enough to assume that a RICO case brought against the Motorcycle Club, the Galindo Cartel, and the Real IRA could be successful.  A RICO case brought against just the Sons of Anarchy, or against the Sons of Anarchy and the Real IRA would have a better chance of success and could potentially shut down a source of illegal firearms shipments into the U.S.  U.S. Attorney Potter has one thing going for him that the Government did not have when it prosecuted the Hell’s Angels, inside testimony of the Club’s votes to engage in illegal activities.  With the Hell’s Angels, a jury found the Club not guilty under RICO because there was no evidence of the members voting in an official Club capacity to commit the racketeering offenses.  Potter has signed statements from both Otto and Juice, and Juice’s statement likely spells out the Club’s voting requirement.  So with evidence of an official club vote to engage in the predicate offenses Potter has a real shot at prosecuting the Club under RICO.

Thank You for Listening.  This show is researched, written, and recorded by me, Céleste Young.  None of the legal advice or opinions expressed in this episode are intended as specific or individualized legal advice.  Please like, subscribe, rate, or review this podcast if you enjoyed it.  If you have any questions or comments, please e-mail them to Waitisthatlegal@gmail.com.  You can find the Podcast on Twitter, Facebook, and Instagram.

Be careful whom you associate with or you might end up as a defendant in a RICO case; even after bringing down New York’s five families in the most successful RICO case of all time.