McDonnells Indicted: Why No RICO?

Public officials using their office for personal gain have frequently been the subject of federal prosecutions under the RICO law. Some notables include former Illinois governors and a number of former congressional members, mayors, and state legislators from around the country. Typically, these public officials would be charged with a substantive RICO and/or RICO conspiracy charge, along with counts alleging violations of the RICO predicate crimes — such as honest service mail and wire fraud — and Hobbs Act extortion under the color of official right violations. In addition to receiving some long prison sentences, the convicted officials would be ordered to forfeit the proceeds of their corruption under the RICO forfeiture provisions as well as other criminal forfeiture provisions.

So, why no RICO charges here? Former Gov. Bob McDonnell and his wife were charged with multiple counts of honest service wire fraud and multiple counts of color of official right extortion, all of which are RICO predicate crimes. The facts could have supported a RICO if charged, i.e., the couple allegedly conducted and conspired to conduct the affairs of McDonnell’s former office, the Office of Governor of the Commonwealth of Virginia  (a RICO enterprise engaged in or whose activities affected interstate commerce) through a pattern of racketeering (i.e., multiple acts of extortion and fraud over a period of multiple years, from 2011-2013).

So all of the elements for a RICO prosecution exist, but why did the government not  pursue a RICO charge in this instance? Certainly, the magnitude of the alleged corruption (i.e., receiving cash and gifts totaling over $175,000) exceeds the dollar amounts of bribes and kickbacks obtained by other disgraced public officials convicted of RICO. The answer lies within the DOJ’s published RICO policy in the United States Attorney’s Manual (USAM).

USAM section 9-110.310 sets forth seven policy considerations for those seeking a RICO indictment approval from DOJ’s Criminal Division. Only one of these considerations or requirements must be met for the proposed RICO indictment to be approved. These requirements include a subjective determination, that is, requiring that the proposed RICO charge is necessary because it adequately reflects the nature and extent of the criminal conduct; and legal considerations (i.e., a proposed RICO provides an appropriate sentence; is necessary for a successful prosecution; would provide a reasonable expectation of forfeiture; or the violations consist of state law exclusively, but may pose special problems for the local prosecutor).

Using that criteria there appears to have been  no legal necessity for the government to bring a RICO charge. The defendants conduct was within the five year statute of limitations, RICO will not provide for an enhanced sentence given the substantive charges, there are no venue or jurisdictional issues, there  is no need to allege state bribery given that there are mailings/wirings to support the honest service fraud charge, there is the requisite effect on interstate commerce to support the Hobbs Act charges, and forfeiture under sections 981 and 982 seeking proceeds is sufficient. Thus, it boils down to a subjective determination; that is, is this the kind of case which deserves labeling the defendants “racketeers?” The government apparently thought not.

In conclusion, public corruption is a serious charge, and the stigma of being a “racketeer” for those who violate the public trust may in some cases be decidedly deserved. However, a public official should not face this stigma unless the government’s policy supports such a charge and, ideally, that there is a legal necessity to bring the charges.

So, Governor McDonnell and his wife, although certainly facing very serious charges, may not deserve to be labeled “racketeers.” They should be thankful for the careful discretion by the government in this particular case.