Five Families: The Rise, Decline, and Resurgence of America's Most Powerful Mafia Empires (34 page)

Before RICO was conceived, the vast majority of Mafia bosses, underbosses, consiglieri, and capos were effectively insulated from arrest. Once in command positions, they gave orders but never personally committed crimes. Proving in court that these leaders were implicated in acts carried out by their underlings was virtually impossible under existing federal and state conspiracy statutes. It was the subordinates—the soldiers, the associates, the wannabes—who did the dirty work, and they were the ones who occasionally got caught on murder raps, dealing in drugs, shaking down loan-shark victims, bookmaking, hijacking, and other crimes. With the code of
omertà
inviolable, successful prosecutions of high-ranking mafiosi was a daunting if not impossible undertaking.

McClellan and Blakey wanted to change the equation and simplify the task of piercing the protective walls surrounding Mafia rulers. The thrust of the RICO law centered on two words: pattern and enterprise. Prosecutors could indict and convict large groups of mobsters by proving they were engaged in a “pattern” of crimes conducted in behalf of an organization, an “enterprise.” A “pattern” was defined as two or more specified federal or state offenses related to the “enterprise” and committed over a substantial period of time. “Enterprise”
was broadly defined to include illicit associations, like Mafia families or crews, as well as corrupt unions and corporations.

Thus, RICO empowered prosecutors to dismantle the hierarchy of a family with one sweeping indictment, instead of concentrating on low-level strays picked up on relatively minor charges. More important, under RICO for the first time a boss could be convicted if it was proved that he was linked to the criminal enterprise. Evidence that a boss or capo got a cut of the loot or was heard arranging the enterprise’s activities was sufficient for conviction. Anyone planning or receiving a report about a crime involving the enterprise was as guilty as the perpetrator.

In effect, the statute outlawed the Mafia’s fundamental and ingrained operating procedures. RICO mandated that committing or being an accomplice in any two of twenty itemized felonies, even over a period longer than ten years, could convict a defendant of participating as a member of an enterprise, a rackets organization. The crime categories covered involvement in almost every conceivable illegal infraction or conspiracy: murder, kidnapping, drug trafficking, robbery, loan-sharking, gambling, bribery, extortion, embezzlement from union funds, fraud, arson, and counterfeiting.

There were other groundbreaking provisions for prosecutors. Normally, except for the crime of murder, a suspect must be charged within a five-year time period after the commission of most federal crimes. RICO expanded the five-year statute of limitations almost indefinitely, depending on when the last—not the first—crimes were committed for the enterprise. Another boost for prosecutors was authorization to use previous convictions in state courts as part of federal charges against a defendant. This weapon was applied under the theory that the old crime was now being punished under the “enterprise” and “pattern of racketeering” elements of the federal law and was exempt from double jeopardy, being tried twice for the same crime. And RICO imposed draconian punishment, essentially up to forty years for bosses and others in leadership positions, and a maximum of life without parole where murder was committed to aid the enterprise.

To destroy the Mob’s economic foundations, RICO’s long arm extended into civil and antitrust areas. The law allowed the government to seize loot and assets squirreled away by gangsters and, through forfeitures, obtain their homes, property, and bank accounts if they were the fruit of crimes. In short, the objective was to take the profits out of organized crime. In a revolutionary step toward breaking the Mob’s control or influence in unions, RICO contained an
antitrust provision for civil suits by the government. Without the necessity of a criminal trial, the Justice Department could file a petition in federal court seeking to have an entire national union or a local (a branch of the union) placed under federal supervision and its leaders ousted. In order to clean up racket-plagued unions, the government would first have to prove to a judge that the unions or locals were linked to organized-crime figures.

Finally, as a means of cracking the code of
omertà
, McClellan and Blakey designed a trailblazing witness-protection program that offered immunity from prosecution for cooperating witnesses. Blakey believed that mafiosi and Mob associates, facing RICO’s long prison sentences, could be converted into witnesses and informers. Potential defectors would be more likely to change sides, aid, and testify for the prosecution once the threat of Mob retaliation was removed or at least diminished. Through a witness-protection program, the government could encourage turncoats by safeguarding them and their close relatives and helping them start new lives, far from their old environment.

To overcome vigorous opposition to the proposals as anti-labor, anti-civil rights, and excessively punitive, McClellan garnered widespread support from both conservative and moderate Republicans and Democrats. A selling point to them was that RICO’s main goals were expelling the Mob from legitimate businesses and unions. Senate approval of the entire bill, including RICO, was relatively easy. The biggest obstacle was Representative Emanuel Celler, a liberal Democrat from New York City, who was chairman of the House of Representatives Judiciary Committee, and leading the fight against RICO. Celler expected to weaken and emasculate the RICO section of the omnibus legislation through the parliamentary device of conference sessions. When different versions of a bill are passed by the House and by the Senate, representatives of both bodies meet in “conference” to iron out disagreements by agreeing on identical language and a single version.

Before presenting his bill to the Senate, the canny McClellan allowed Celler to introduce amendments in the House’s bill modifying controversial parts of the act unrelated to RICO. The disputes over other aspects of the legislation served as lightening rods, distracting Cellar’s attention from substantially altering RICO in his proposed House bill. Celler anticipated that his non-RICO objections would force McClellan to call for a conference, which would give him the opportunity to block or substantially modify RICO to his satisfaction. But McClellan surprised him by accepting the amended House version. Since the approved Senate and House bills were identical, there was no need for the
conference that Celler had counted on. He had been outwitted by the senator from Arkansas.

In 1970 the entire Organized Crime Control Act was enacted without further amendments. After two years of public hearings, deft negotiations, and fine tuning, RICO was intact and became the law of the land.

“I was the draftsman but McClellan was the architect,” Blakey recalled. “Without his finesse, political understanding, and zeal, it never would have happened.”

Blakey had his law but he found himself in confounding limbo. No one in federal law enforcement wanted to use RICO. Cautious prosecutors were hesitant to be the first to apply an untested statute, fearing that it would be declared unconstitutional and their convictions reversed. No prosecutor wanted to give up easy cases and almost certain guilty verdicts under existing laws by experimenting with RICO’s criminal provisions. The civil portions of RICO were equally unpalatable to prosecutors and FBI agents. “They were all gunslingers; for them civil litigation was for sissies,” Blakey realized. “They wanted to make arrests, not serve subpoenas.” Like an itinerant, optimistic evangelist of a new religion, Blakey brought the promise of RICO to FBI agents and officials and to prosecutors in U.S. Attorney’s offices throughout the country. Everywhere, the reception was the same: he was looked upon as a fuzzy-minded college professor, an out-of-touch Washington-style bureaucrat peddling an impractical panacea. “We passed the bill and thought it would be implemented,” Blakey complained. “But when I explain how to lawfully use it, they look at me as if I’m crazy.”

His most disappointing rejection and most embarrassing encounter came at the prestigious U.S. Attorney’s office in Manhattan. At least there he anticipated support because every alert prosecutor understood that the New York metropolitan area had long been the bedrock of the Mafia. On the morning of November 1, 1972, he was in the midst of his pep talk about the virtues of RICO when Whitney North Seymour Jr., the U.S. Attorney for the region, rose to his feet. A descendant of a New York patrician family, and the area’s highest federal law-enforcement official, Seymour summarily ordered Blakey to leave the conference room. “You don’t know what you’re talking about,” Blakey recalled Seymour belittling him. “You’re wasting my time and my assistants’. Get out.”

Years later, Seymour conceded that he and many of his senior prosecutors were dubious about the value and constitutionality of RICO. “In hindsight we
were one hundred percent wrong,” he acknowledged. “This is what happens when you’re confronted with something new, I guess.” But Seymour insisted that while disagreeing with the law professor, he had treated him courteously.

Blakey attributed those bitter experiences partly to the fact that RICO was the brainchild of advisers outside the Justice Department. “It was elitist thinking in New York and elsewhere in the Justice Department that they were the best and the brightest when it came to law-enforcement innovations, and superior to outsiders. Most of them felt they knew everything.”

To his further dismay, Blakey, still the chief counsel of McClellan’s subcommittee, found that neither prosecutors nor the FBI were effectively using Title III, their new electronic-surveillance powers enacted by Congress. After ceasing its legally questionable bugging program in the mid-1960s, the FBI in the early 1970s resumed using wiretaps and listening devices with judicial authorization, but it was on a limited basis, mainly confined to quickie gambling cases. Bookie investigations were easy, resulting in multiple arrests and meaningless conviction statistics; but everyone knowledgeable in law enforcement knew that convicting low-level gamblers had minimal effect on weakening the Mafia.

Obsessed with arrest numbers, FBI officialdom objected to lengthy electronic surveillance of mobsters as costly, time-consuming and statistically unproductive. Running a wire or a bug could tie up six agents on three shifts daily for thirty or more days, without guaranteed results. Taking the easy road, supervisors encouraged agents to concentrate on bank robbers. The efforts sometimes bordered on absurd parodies of the Keystone Kops. In New York and other cities, FBI agents would race the local police to bank holdups to establish jurisdictional rights in cases that usually were easy to solve.

In stump speeches about RICO to agents and supervisors in training sessions at the FBI’s academy in Quantico, Virginia, Blakey’s pitch that Title III was intended as a tool for long, penetrative investigations went unheeded. “They thought simplistically like cops solving individual crimes, not about systemically destroying Mob families.”

The FBI’s atrophied mind-set regarding investigative priorities irritated many federal prosecutors in the 1970s, but none was willing to challenge the publicly esteemed and potentially vindictive agency. A lone dissenter appeared in July 1976, when a high federal official in New York, David G. Trager, described the bureau as “suffering from arteriosclerosis” and of being “out of step” with the major goals of federal prosecutors. Trager was the U.S. Attorney for the
Eastern District of New York State, which comprises Brooklyn, Queens, Staten Island, and Long Island. His views largely echoed Blakey’s critiques of the bureau’s overall competence although organized crime was not one of Trager’s top concerns. “Most of the cases they [the FBI] bring us are insignificant,” he told the
New York Times.
“They are wasting resources on trivia, and I don’t think they have the ability or the people to do the job in the areas we consider priorities—official corruption and white-collar crime.”

As for the Cosa Nostra, Trager contended that the government was doing a poor job. He laid the blame on special independent units, the Organized Crime Strike Forces that had been established in major cities by the Justice Department to coordinate and spearhead Mob prosecutions. These strike forces, Trager claimed, were staffed largely with inexperienced attorneys and were “dying” without making a dent in combating the Mafia.

The government’s own statistics clearly illuminated the ineffectiveness of the early strike forces. In the late 1970s, after a decade of existence, strike force prosecutors had yet to indict or convict a high-ranking Mob figure. Who were the strike forces and the FBI going after? Mainly small-time gamblers and loan sharks. Here, too, the results were pitiful. A congressional review found that 52 percent of the convictions resulted in no jail time. And, almost 60 percent of those convicted—overwhelmingly minor soldiers and associates—got soft sentences of less than two years.

Blakey had a similar low opinion of most of the heads of these new strike forces whose stated priority and goal was to prosecute the Mafia. He lectured, cajoled, and implored strike force attorneys to employ RICO as their main weapon. The responses to him were uniformly negative. “Sounds good,” prosecutors would say, “but I don’t want to take a chance by trying something new and blowing a good case.”

As the Eastern District’s U.S. Attorney, Trager supervised one of the Justice Department’s largest jurisdictions, an area of New York that was teeming with mafiosi. Yet he too declined to use his prosecutorial powers to crack down on mobsters by experimenting with RICO. Nevertheless, Trager, a maverick prosecutor, tried through the country’s most influential newspaper, the
New York Times
, to sound off about the FBI’s outdated anticrime and anti-Mafia strategies. Like Blakey’s, Trager’s warnings were totally ignored by the decision-makers at the Justice Department and the FBI.

Before Bob Blakey set out on his frustrating road trips to sell RICO, he had an immensely proud moment on October 15, 1970. On that date, he was at the
White House when President Nixon signed the Organized Crime Control Act and RICO into law. Years later, Blakey grasped the surrealistic consequences of that ceremonial signing. An obscure clause of the bill enlarged the scope and type of immunity from prosecution Congress could give witnesses testifying at Senate and House of Representative hearings. Because of that uncontroversial, barely noticed provision, John W. Dean III, the former counsel to President Nixon, agreed to testify before a Senate committee in 1973 that was investigating the president. Dean disclosed that Nixon had been aware of efforts to conceal the White House’s involvement in the 1972 break-in at Democratic party headquarters at the Watergate complex in Washington. Enjoying only limited immunity, Dean later was convicted of obstruction of justice for his part in the coverup. But his revelations to the Senate committee were instrumental in compelling Nixon to resign as president in 1974, rather than face impeachment by Congress over the Watergate scandal.