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Confiscatory Texas Town Officials Subject to RICO Prosecution?

constable-texas2I talking with my employer, Elliot Schlissel, Esq., about my post yesterday regarding the case of the Tenaha, TX police department’s use of apparently unreasonable searches and seizures to obtain money and property from travelers through their town to bolster their local budget. I told him that the individuals involved are being sued for violations of the victims’ civil rights. He suggested that those individuals involved may potentially be prosecuted criminally for violations of the Federal Racketeering Influenced and Corrupt Organizations (“RICO”) law.

After reviewing some of the basic RICO statutes, I think the U.S. Attorney’s office prosecutors may have a case against the officers and individuals involved.

The RICO law, 18 USC §1962(c), prohibits “any person employed by or associated with any enterprise engaged in… activities… which affect[] interstate… commerce, to conduct… such enterprise’s affairs through a pattern of racketeering activity…” (emphasis added)

§ 1961(1) defines a “racketeering activity” as

(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance… which is chargable under State law and punishable by imprisonment for more than one year [or] (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201… (emphasis added)

One of the acts “indictable under any of the following provisions of title 18” is extortion, which is defined by § 1951(a) as when someone “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 (sic)…” That section further defines extortion as “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.”

And § 1961(5) defines a “pattern of racketeering activity” as “at least two acts of [even the same] racketeering activity…”

While the town of Tenaha itself is not a proper subject of RICO prosecution because it is not a “person” under the RICO statute, the Marshall, Mayor, Constable and Shelby County D.A., in their individual capacities, would be proper “persons” for RICO prosecution. See Pelfresne v. Village of Rosemont, 22 F.Supp.2d 756, 761 (N.D. Ill. 1998).

If the facts are indeed as the San Antonio Express-News has reported, then over 140 motorists have been stopped and been “willingly” induced to sign over their property with the threat of bogus prosecutions for crimes they were never charged with and which involved searches that probably violated their fourth Amendment right to be free from unreasonable searches and seizures.

Furthermore, the Mayor’s comments defending the practice indicated that it was their intent to use these means to bolster the cash-strapped budget of the town’s police force. This implied that their the use of the Texas forfeiture statute to confiscate travelers’ money and property using abuses of their 4th Amendment rights was a coordinated conspiracy.

Travelers’ freedom to pass and bring property between states appears to have been impeded by “wrongful use of… fear… under color of official right.” If indeed this has occurred in over half of the 140 instances of the induced property forfeitures between 2006 and 2008, and it can be shown that the officials involved took part in at least two instances of extortion each, then it would appear that the Marshall, Constable, Mayor and D.A. in Tenaha and Shelby County may be susceptible to criminal (and perhaps civil) RICO prosecution.

At the very least, the U.S. Attorney’s Office for the Eastern District of Texas ought to look into whether an investigation should be opened to determine if criminal RICO prosecution may be appropriate.

Picture courtesy of community-builder.

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