The Enterprise Theory and Relationship with Criminal Investigations, RICO, AMLC Act and the Analyst

A Systems Approach for the Analyst to Understand the How & Why

The underlying structures of thought, theories and political actions that support criminal investigations.

By R. Bacon

Themes and concept to consider first:

•  Enterprise theory
• RICO Act
• AMLC Act
• Kefauver hearings
• President's 1967 Commission on Organized Crime
• Mafia Commission

Criminal analyst, researchers and investigators who are interested in understanding how law enforcement obtains legal and instrumental powers that provide the length of reach, scope and of depth of enforcement actions, might be professionally interested in knowing what the "enterprise theory" is and how this influences their work at the practitioner level. The enterprise theory is intimately related with the Racketeer Influenced and Corrupt Organization Act (colloquially known as RICO) and this is consequently relevant for the professional education of criminal intelligence analysts and investigator who desires to understand where working authorities reside.

This underlying enterprise theory -developed in the late 60s, enacted in RICO in 1970, and used since 1980s to present day- is founded on a threefold approach, these are:

1- The business, -the enterprise- is targeted by LE, not just the individuals who lead and run the organization.

2- The leadership of the enterprise -who usually don't commit tangible crimes- are targeted as well as those individuals who profit from criminal activity.

3- Assets and profits are forfeited.

This theory does not focus solely on criminal acts nor on the leaders of the criminal organization, it focusses on the aggregated organizational criminality. If any person supported or profited from the criminal enterprise –even no direct criminal act was committed by the individual- they become potential targets of enforcement action.

It is important to understand that the RICO and the 1986 Anti-Money Laundering Control Act (AMLC) combined, give U.S. law enforcement formidable power to disrupt organized crime. The RICO act forces a systemic approach for analysis. From the desk of an analyst –knowingly or not-, these acts foment analysis workflow that were the analyst works to identify the type of associations among members of the criminal organization as any facilitator or corrupt gatekeeper that collaborate with making the criminal enterprise successful. Ergo, the analyst must identify persons of interest, roles, hierarchies, and the type of relationships these persons have among each other, and not only among themselves, but also relationships with assets, criminal finance, individual criminal acts and corrupt gatekeepers.

This view (a Gestalt) started to develop in the 1950s when the Mafia -as organized crime- attracted national public and political attention. The 1950 KEFAUVER hearings set the first national building block for combating criminal organizations. The President's 1967 Commission on Organized Crime, under the influence of the hearings and public concerns about the emerging threat posited by organized crime, motivated legislation to create RICO. Traditional enforcement investigations to that point tended to investigate and prosecute individual criminal acts. Criminal analysis –which was in an incipient stage- focused mostly on “beat analysis” or post-factum forensics. RICO changed and set a new paradigm for criminal intelligence analysis and investigations. From this point on, investigations and analysis would no longer focus on individual criminal acts –even if several perpetrators were involved-, but instead would focus on the aggregated criminality caused by organized criminal entities. This new paradigm investigates trends, general modus operandi, criminal entrepreneurial objectives of all members of the organization, to include non-member facilitators, e.g., bankers, politicians, police officers, government officials, specialized professionals, etc.

Back in 1967, criminal intelligence, became an important law enforcement function -as the warfighting functions are for the military. Since the Kefauver hearings, criminal intelligence had a soft -but correct- network and systems focus. Criminal organizations -motivated mainly by profit- are systems, enterprises, consolidated by a network of people and businesses associated in different capacities between themselves. Now, entering the second decade of the XXI Century, the analyst must understand the systemic nature of criminal organizations.

Still seventy years later, due to LEAs constant oppression by feeding metrics or, due to enforcement investigative myopia, many agencies have not effectively incorporated the systemic view fomented by RICO (The appropriate Gestalt), needed to combat organized crime and ensure the safe and tranquil life of our citizens.

RICO was enacted to deal with American mafia. The first and most noticeable enforcement action where RICO was used was in the eighties, the landmark case against the Mafia Commission. The five prominent criminal Italian groups were dealt a terrible blow. The American Italian mafia still exists, but their freedom of action and growth has been curtailed by law enforcement's new investigative capabilities and legal resources.

The criminal analyst must deal with a myriad of data nowadays pertaining to international illicit syndicates, terrorist organizations, and rogue nations that have converging interests. The relationships are complex to identify, organization are spread out among many local and global jurisdictions. The capability to obtain sources of information and evidence complicated by distance, bureaucratic difficulties are challenging. Corruption spread around the World collaborate with criminal enterprises and profit it. The map of criminal organizations is no longer geographic, it is financial. There are jurisdictions that provide sanctuary to criminal organizations. The analytical challenge is gargantuan, therefore, if there is a will to degrade criminal organizations, we must not focus on individual criminal acts, we must focus on the enterprise –its business model and mode or operations- and who from outside these organizations serve as enablers.

The analysts equipped with the right theory -the systemic view that resides inside the enterprise theory- can provide the fresh clarity and sobriety of thought needed to enhance effectiveness of law enforcement actions against organized crime.

We live in a time continuous convulsion, a time that generates practical nearsightedness, a time were immediate results –like improvised band aids- regulate enforcement actions that have little relevant secondary and tertiary beneficial effects that fortify the respect and maintenance of law and order.

The enterprise theory is the foundation of RICO -the first great systemic approach- and fortified by the AMLC Act. This understanding provides investigative clarity to the analyst.

If you are a criminal intelligence analyst, have you questioned your role as a professional that works to improve of enforcement actions? Does basic theory deserve your attention as a tool, as a beacon to help you navigate with purpose while navigating the oceans of data? Are you professionally interested?

What do you think?

Just knowing a little bit more won’t hurt you.

Patchogue MMXIX