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Friday, February 11, 2011

Think About Catch Shares, Sector Separation & R.I.C.O.

When it was passed in 1970, the RICO Act was primarily intended to eliminate the influence of the Mafia in the nation's economy. Though today, it could as well be compared to eliminating the NOAA's control of the fisheries, through the Trust Funds set up by PEW and the EDF. This should be the first priority of the U.S. Justice System.
Research shows that advocacy, community organizing, and civic engagement by nonprofit groups makes a substantial, measurable difference in the lives of families and communities. Nevertheless, many philanthropists harbor the view that working with government is not an effective or appropriate role for them to play, and they mistakenly believe that U.S. law prohibits them from doing so.
Philanthropy is fine when it is in bed with the government for reasons to help and benefit mankind. If on the other hand, an organization is involved with criminal infringement of intellectual property rights, it walks a fine line to the tune of R.I.C.O. to which much ado about nothing can be about something and PEW along with the EDF are dancing a tune with NOAA in possible infringement of the Jones Act as well RICO. Would not wish to be in their boat anytime soon. 

We need to educate the non-fishing public. They think we’re just out here slaughtering fish and that isn’t what this is about. We’re trying to make a living and we’re trying to keep fishing,” Logan continued, citing the Alaskan crab fisheries that left 200 boats to dwindle down to approximately 15, in a time when our 'President' has said, “Not in America, we will preserve Jobs, Create Jobs and strengthen the Union!” hm, sounds like JOB LOSS TO ME! 

The Peter G. Peterson Foundation, the Pew Charitable Trusts and the Committee for a Responsible Federal Budget announced Wednesday they are forming the new bipartisan Peterson-Pew Commission on Budget Reform. Now PEW is deciding our budget too?

Guess what else PEW is into: 
1 The number of unmarried Americans as a whole has risen dramatically, according to a recent Pew Research Center Social & Demographic Trends report.
2 The Energy and Natural Resources, Environment and Public Works and Commerce panels hold meetings hosted by the Pew Charitable Trusts.
3 Pew Hispanic Center keeps tabs to numbers on, jobs held by illegal foreign workers.
4 Carroll Doherty, associate director of the Pew Research Center for the People & the Press.
5 PEW Internet and American Life Project are trying to use social media to be more responsive to citizens, said Aaron Smith, senior research specialist.
6 PEW -Peterson Commission
7 PEW Forum
8-PEW Center on Global Climate Change
9 PEW Research Center
10 PEW Health Group
11 PEW Global Attitudes Project
12 PEW Environment Group’s U.S. Arctic Program
13 PEW Research Center's Project for Excellence in Journalism, a nonpartisan journalism watchdog organization
14 The Peter G. Peterson Foundation, the Pew Charitable Trusts and the Committee for a Responsible Federal Budget announced Wednesday they are forming the new bipartisan Peterson-Pew Commission on Budget Reform. Jan. 14, 2009
15 PEW Environment Group Dec. 9, 2008 was worried how Bush gave back the rights the councils have today, so how did the councils take it away?
16 PEW Center for the People and the Press

That is a whole lot of Government! 
NOW THINK R.I.C.O. and how these terms could reflect to and within the fisheries industries from Catch Shares, Sector Separation and closures of various fish on the whim of old flawed data to no data at all in driving the prices of fish up and driving the Waterman out! 
Courts look more favorably upon RICO claims based upon true criminal behavior, such as bribery, kickbacks, extortion, obstruction of justice, and clearly criminal schemes that are advanced by the use of the mails and wires.
  • A RICO claim cannot exist in the absence of criminal activity. “South Atlantic Fisheries Management Council had even admitted to having flawed data on which they based potential limits and closures.” Could this be construed as a criminal act?
  • RICO addresses long-term, not one-shot, criminal activity. The formation of councils with bought and paid for Representative of EDF in voting regulations and rules in their favor in different councils and times might fall and apply here too.
  • A RICO claim may be barred by the statute of limitations if you discovered or reasonably should have discovered your injury four or more years ago. It is happening now, has in the past and I believe it passes this question too.
Now if there is a way to use the internet, as that is how they communicate and somehow introduce this into mail and wire fraud statutes, we would sink them!

Although the RICO Act can be used in many contexts, the statute is most easily understood in its intended context: NOAA. In the context of the NOAA, the defendant person (i.e., the target of the RICO Act) is Dr. Jane Lubchenco. The "racketeering activity" is the criminal activities in which NOAA engages, e.g., extortion, bribery, loan sharking, Catch share sales, false documentation, etc. Because the NOAA family has engaged in these criminal actions for years, the criminal actions constitute a pattern of racketeering activity. The government can criminally prosecute the Jane Lubchenco under RICO and send her to jail even if Jane Lubchenco has never personally killed, extorted, bribed or engaged in any criminal behavior. Jane Lubchenco can be imprisoned because she operated and managed a criminal enterprise that engaged in such acts. Moreover, under section 1964(c) of the RICO Act, the victims of the NOAA family (i.e., the extorted businessman, the employers whose employees were bribed, debtors of the loan shark, the family of a murder victim) can sue Jane Lubchenco civilly and recover the economic losses they sustained by reason of the NOAA's pattern of racketeering.
As a practical matter, the closer a plaintiff's case is to the Mafia scenario described above, the better chance the plaintiff has in succeeding under the RICO Act. Given the diverse factual scenarios that may confront attorneys and parties under RICO, it is always helpful to analogize non-Mafia factual scenarios to the prototypical RICO claim against the Mafia. It is always helpful to ask: who stands in the position of the Godfather, i.e., the defendant person? What is the equivalent of the Mafia family, i.e., the enterprise? This will give you a good start in evaluating the merits of any RICO claim you confront. If the facts are well-suited to the Mafia analogy, you likely have a stronger claim. Without the element of racketeering activity, a RICO claim would be difficult to prove, but because one must also prove racketeering activity in addition to pattern, enterprise, operation and management, etc., a RICO claim is among the most difficult violations to establish. It has been said that the need to prove racketeering activity essentially requires a plaintiff or prosecutor to prove a crime within a CRIME. A plaintiff or prosecutor has no chance of proving the "greater" CRIME, i.e., the RICO violation, unless they can first establish a "lesser" crime, i.e., an act of racketeering (sometimes called a predicate act).
A RICO claim cannot exist in the absence of criminal activity. The simplest way to put this concept is: no crime - no RICO violation. This rule applies even in the context of civil RICO claims. Every RICO claim must be based upon a violation of one of the crimes listed in 18 U.S.C. s 1961(1).

Section 1961(1) of the RICO Act lists all of the crimes upon which a RICO violation must be predicated. Spool, 520 F.3d 178 at 183. A RICO claim can be predicated on not only numerous federal criminal violations, but also on violations of certain state criminal laws. With regard to the state crimes, the RICO Act states that a violation can be predicated upon "any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance . . . which is chargeable under State law and punishable by imprisonment for more than one year." Thus, to prove a RICO claim, a plaintiff or prosecutor must first allege and prove an entire murder case, kidnapping case, arson case, robbery case, etc. Only if the evidence supports these "lesser" charges, can the plaintiff or prosecutor proceed with the remaining elements of the "greater" RICO claim, e.g., pattern, enterprise, operation and management. A RICO claim can also be predicated upon the violation of many, many federal criminal statutes. The federal crimes relate to a number of areas, including: counterfeiting, extortion, gambling, illegal immigration, obscenity, obstruction of justice, prostitution, murder for hire, interstate transportation of stolen property, and criminal infringement of intellectual property rights. These are but a few of the areas of federal criminal law out of which a RICO claim can arise.
Mail and Wire Fraud
The extensive use of RICO in the civil context is almost solely attributable to the inclusion of mail and wire fraud as predicate acts. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 500 (1985). The mail and wire fraud statutes essentially make it criminal for any one to use the mails or wires to advance a scheme to defraud. Note that the fraudulent statements themselves need not be transmitted by mail or wire; it is only required that the scheme to defraud be advanced, concealed or furthered by the use of the U.S. mail or wires. See 18 U.S.C., sections 1341, 1343. Because every business or corporation in the United States uses the mails or wires to make money, any business who allegedly engages in common law fraud arguably violates the federal mail and wire fraud statutes. As a result, almost any business that allegedly engages in common law fraud can theoretically be sued under the RICO Act.
    1. Extortion
What laypeople call extortion, lawyers call a violation of the Hobbs Act. The Hobbs Act states:
    Whoever in anyway or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. As used in this section: (1) The term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. (2) The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (3) The term "commerce" means commerce within the District of Columbia, or any Territory or Possession of the United States, all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof, all commerce between points within the same State through any place outside such State and all commerce over which the United States has jurisdiction.
18 U.S.C., section 1951 (emphasis added). In essence, the Hobbs Act elevates all but the simplest acts of robbery and extortion to the level of federal crimes.
      1. Extortion under Color Of Official Right JANE'S BOAT?
Many people are confused by extortion "under color of official right." Extortion under color of official right occurs when an agent of the government uses his or her legitimate governmental powers to obtain an illegitimate objective. For example, a police officer may have the authority to revoke a driver's license but he cannot offer to forego the legitimate exercise of his power in exchange for sexual favors from the driver. Likewise, a city council member may have the authority to rezone an area of town and thereby effectively put a company out of business, but the council member cannot threaten rezoning unless the company contributes to his re-election campaign. As one court recently stated: "In order to prove Hobbs Act extortion 'under color of official right,' 'the [plaintiff / prosecutor] need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." United States v. Urban, 404 F.3d 754, 768 (3d Cir. 2005) (quoting Evans v. United States, 504 U.S. 255, 268 (1992)). In short, governmental agents have a great deal of discretion when deciding how to exercise the powers of the government. When a government agent engages in extortion "under color of official right," he is essentially using the governmental powers with which he has been trusted to gain personal or illegitimate rewards.
    A RICO claim is broad but a RICO conspiracy claim is even broader. Anyone who agrees or conspires to pursue the same criminal objective can be held liable for a RICO violation. Salinas v. United States, 522 U.S. 22, 63-64 (1997). "If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators." Id. at 64. A conspirator must simply intend to further an endeavor which, if completed, would satisfy all elements of a civil RICO claim. Id. at 65. Thus, there are two ways to effectively defend against a RICO conspiracy claim: 1) the defendant must prove he never intended to further the criminal endeavor; or 2) the defendant must prove that the endeavor did not satisfy the elements of a civil RICO claim. Because the first defense is fact based, it is seldom an appropriate defense to raise in a dispositve motion. The best way to undermine a claim for conspiracy on a dispositive motion is to undermine the legal sufficiency of the allegations supporting the substantive offense. See Howard v. American Online Inc., 208 F.3d 741, 751 (9th Cir. 2000) (a claim under section 1962(d) may not stand unless the plaintiffs can sustain a viable claim under another subsection of section 1962).

Now that I have signed my death warrant, I hold you the public as witness as an American citizen, it is my right, through free speech to educate the general public of a possible wrong which needs to be set right. The Federal Justice System, unless it too was bought by PEW, needs to view the recent adaptations of NOAA of late. Why would a high payed executive of the EDF, take a lower scale job by the U.S. government, NOAA unless there are priorities of a higher matter. Jane Lubchenco has proprietary data from years past, to which she uses to cripple the U.S. Fishing industry, WHY?