A. Introduction 1
1. Overview 1
2. Guidelines for Bringing Civil RICO Lawsuits 3
B. Prior Approval by the Organized Crime and Racketeering Section
of All Government Civil RICO Lawsuits is Required 6
1. Approval Authority and Process 6
2. Post-Complaint Duties 8
II. OVERVIEW OF EQUITABLE RELIEF, CIVIL RICO, AND ITS
LEGISLATIVE HISTORY 10
A. Origins and General Nature of Courts’ Equitable Authority 10
1. Origins of Court’s Equitable Authority 10
2. Courts Are Vested With Broad Equitable Powers To Remedy
Unlawful Conduct, Including Ordering Intrusive, Structural
Changes in Wrongdoers’ Entities and Practices 13
B. Congressional Findings and Purposes Regarding Civil RICO 16
C. Congress Designed 18 U.S.C. § 1964 (a) to Authorize District Courts
To Impose the Full Panoply of Equitable Relief 18
1. Injunctions 21
2. Divestiture, Dissolution and Reorganization 21
3. Disgorgement 22
iv
PAGE
4. Limitations on Future Activities and Removal from Positions
in an Entity 25
5. Appointment of Court Officers 26
D. Civil RICO, 18 U.S.C. § 1964, is Patterned After Antitrust Laws,
and Hence Vests the Attorney General of the United States With the
Exclusive Authority to Obtain Equitable Relief, and Vests Private
Litigants, But Not the United States, With the Authority to Sue for
Treble Damages 26
E. Equitable Relief Available Under Civil RICO is at Least As Broad As
Equitable Relief Under the Antitrust Laws, If Not Broader 33
III. ELEMENTS OF GOVERNMENT CIVIL RICO LAWSUITS AND
DEFENSES 38
A. Standards For Obtaining Equitable Relief 38
1. The Government Must Establish a Reasonable Likelihood of
Future Violations By a Preponderance of the Evidence 38
2. Making Due Provision for the Rights of Innocent Persons 41
B. Substantive Issues In Proving Government Civil RICO Claims 43
1. A Defendant’s Liability For A Racketeering Act May Be Based
On “Aiding and Abetting” 43
2. Principles of Respondeat Superior 47
3. A Corporation’s or Labor Union’s Scienter May Be Established
By The Collective Knowledge of The Corporation’s or Labor
Union’s Employees and Representatives 52
4. The Prohibition Against Intracorporate Conspiracies Under
The Antitrust Laws Does Not Apply To Government Civil
RICO Lawsuits 59
C. Certain Defenses Do Not Apply to Government Civil RICO Actions
For Equitable Relief 61
v
PAGE
1. Laches and Statute of Limitations 61
2. United States’ Civil RICO Claims Cannot Be Implicitly Waived 64
3. Equitable Estoppel Can Not Lie Against the United States, If
Ever, Absent Affirmative Misconduct 66
4. The United States Is Not Subject to the Defenses of Unclean
Hands or In Pari Delicto 69
D. Collateral Estoppel 71
IV. JURISDICTION AND VENUE 75
A. Serving the Summons 75
B. General Principles Governing Subject Matter and Personal Jurisdiction 79
1. Subject Matter Jurisdiction 79
2. Due Processing Requirements for State Courts’ Exercise of In
Personam Jurisdiction Under the Fourteenth Amendment as to
State Claims 79
3. Due Process Requirements Under the Fifth Amendment for
Federal Courts’ Exercising In Personam Jurisdiction Over
Federal Causes of Action 85
C. Civil RICO’s Jurisdiction and Venue Provision 87
1. Overview of Civil RICO’s Jurisdiction and Venue Provision 88
2. The Bases for Venue Under Section 1965(a) 91
a. The District In Which Such Person “Resides” 91
b. “Found” 91
c. “Has an Agent” 92
d. “Transacts His Affairs” 92
3. Nationwide Service of Process Under Section 1965(b) 93
vi
PAGE
4. Transfer of Venue – Forum Non-Conveniens 95
V. PROCEDURAL MATTERS 96
A. Expedition of Actions 96
B. Adequacy of the Pleading and Drafting the Complaint 96
1. Adequacy of the Pleading 96
a. General Principles 96
b. Application of Civil Rule 9(b) 100
2. Drafting the Complaint 102
C. There is No Right to a Jury Trial on Claims for Equitable Relief 104
D. Standards Governing Motions for Summary Judgment 109
1. General Principles 109
2. Issues of Intent Generally are Ill-Suited for Summary Judgment 113
VI. DISCOVERY 114

Civil RICO: 18 U.S.C. §§ 1961-1968 A Manual for Federal Attorneys ]]> http://www.federallawyer.org/2011/03/07/civil-rico-18-usc--1961-1968-a-manual-for-federal-attorneys.html/feed 0 http://www.federallawyer.org/2011/03/07/blues-lawyer-plans-to-amend-suit.html http://www.federallawyer.org/2011/03/07/blues-lawyer-plans-to-amend-suit.html#comments Mon, 07 Mar 2011 12:11:59 +0000 Federal Lawyer http://www.federallawyer.org/?page_id=257

Published Mar 7, 2011.
Read more: Albany Democrat-Herald ]]> http://www.federallawyer.org/2011/03/07/blues-lawyer-plans-to-amend-suit.html/feed 0 http://www.federallawyer.org/2011/03/07/federal.html http://www.federallawyer.org/2011/03/07/federal.html#comments Mon, 07 Mar 2011 12:09:59 +0000 Federal Lawyer http://www.federallawyer.org/?page_id=256

Federal ]]> http://www.federallawyer.org/2011/03/07/federal.html/feed 0 http://www.federallawyer.org/2011/03/07/physician-expert-witness-plays-a-key-role-in-state-and-federal-courts.html http://www.federallawyer.org/2011/03/07/physician-expert-witness-plays-a-key-role-in-state-and-federal-courts.html#comments Mon, 07 Mar 2011 12:06:59 +0000 Federal Lawyer http://www.federallawyer.org/?page_id=255

When it comes to testimony in a jury trial, trust, professionalism and experience all play into the mix. The jury is hearing statements from two sides, each with it own position and goals. Perhaps one of the most trusted witnesses to take the stand in such a proceeding is a licensed physician. To most laypeople, just the credential alone carries a lot of steam, and for most physicians who’ve studied for several years to reach the level they’re at, knowledge is power. The testimony of a physician can potentially change the outcome of the trial. Physicians as expert witnesses are used in a variety of court proceedings, though mostly in jury trials, where it is their job to impart their knowledge onto the jury who will carry out justice in the end.

It is the physician’s job to describe to the jury, or other parties, exactly what kind of injuries have been imparted on the purported victim. Though this is not always the case, as the alleged suspect can hire his/her own physician to serve as an expert witness. While testifying the physician uses props such as diagrams and x-rays to show his or her conclusions.

An example where physicians were used as expert witnesses is the manslaughter trial of millionaire rancher Rodney John Sency. Sency, who owned a mountain ranch, was accused of manslaughter after he killed one of his workers with a sledgehammer. His attorney argued self-defense, because the victim had come at him with a knife after Sency fired from his position as ranch hand. But during the trial, which Sency was eventually acquitted of, both sides called to the stand physicians as expert witnesses to detail the injuries of the victim. The physicians each offered theories as to how many times Sency struck the victim and how hard he delivered the blows. The testimony of both physicians clashed somewhat, and in the end it was up to the jury to decide who to believe.

Physicians hired as expert witnesses generally charge steep rates to attorneys who hire them. Some physicians can command hourly rates as high as $3,000, though the general rate is around $500. With such figures, it’s not hard to understand why many physicians leave their practices or other positions to work in this field as a freelancer.

When it comes to hiring physicians as experts, there are websites attorneys can start with that list the experts by specialty. Physicians not only specialize in general medical injuries and other related litigation, but also work for insurance companies and other agencies filing claims in civil and federal court. When so much money is on the line for such parties, they will have no problem paying top dollar for the best physician experts.

The most notable cases for these experts are the ones where no hard evidence exists. For instance, an x-ray will show a broken leg, but some injuries, such as nerve injuries, require a more objective reading. These are classic cases where experts offer up their medical opinion.

Originally published here.

Federal criminal law features sentencing guidelines.  These guidelines have been drafted by the United States Sentencing Commission.  These guidelines are not mandatory, and a federal district judge has the authority to depart upward or downward from the guidelines upon appropriate findings.

However, the guidelines are the most important tool courts and lawyers have in determining the ultimate sentence for someone convicted of a federal crime.

The guidelines first determine the base offense level. There are 43 base offense lives, the higher the level, the more serious the crime.  

Second, the guidelines provide for a large number of “specific offense characteristics.”  These are characteristics that are associated with the crime that can either increase, or decrease the base offense level. For instance, if a robbery included the display of a firearm, there may be a 5 level increase from the initial base offense level of 20, making the offense level 25.

Third, the guidelines provide for adjustments, which again can either increase or decrease the offense level.  For instance, if the person was a minimal participant, the offense level can be decreased by 4 levels.

Fourth, the sentencing guidelines provide for Multiple Count Adjustments.  The most serious offense serves as a starting point, and if there are multiple counts, the other counts help determine whether and by how much the offense level will be increased.

Fifth, the sentencing guidelines provide for Acceptance of Responsibility. A judge may determine whether the person made restitution, pled guilty, and accepted responsibility for the crime prior to sentencing.  If so, the person may be eligible for a 2 level reduction, plus an additional 1 level reduction if the offense level was above 15 and the government motion indicates that the person pled guilty in a timely fashion.

The person’s sentence will be determined, in large part, by calculating the person’s offense level as described above, and then using the person’s prior criminal record to determine where he falls on the grid.

Many crimes – including drug crimes – include mandatory minimums.  These statutory minimums mean that even if the person achieves an offense level which would have him serve less time than the statutory minimum states, he will serve the statutory minimum.  In other words, the statutory minimums are floors.  

There are limited ways to go below the statutory minimum which I will discuss at a later time.  

In addition, a judge is permitted to depart from the guidelines altogether, although departure from the guidelines may limit the judge in terms of going below an offense’s statutory minimum.

If you’re in need of a tough, caring Raleigh criminal lawyer, give Damon Chetson a call (919) 352-9411 anytime. Criminal lawyer Raleigh Damon Chetson represents individuals charged in state or federal court throughout the Research Triangle – Wake, Durham, Johnston, Lee, Harnett, Orange, and Chatham counties. DWI Raleigh lawyer Damon Chetson is available day or night, weekdays or weekends. Call him anytime – weekdays, weekends, evenings or holidays.

Originally published here.

Don’t Ask Don’t Tell ruling has gay service members wondering ‘what’s next?” Military Lawyer & Tully Rinckey Managing Partner, Greg T. Rinckey, explains what this means for service members. ]]> http://www.federallawyer.org/2011/03/07/military-lawyer-greg-rinckey-dont-ask-dont-tell-ruling---tully-rinckey---albany.html/feed 0 http://www.federallawyer.org/2011/03/07/left-to-right-billington-betty-naomi-goldstein-friedan-1921-2006-barbara-ireton-and-marguerite-rawalt-1895-1989.html http://www.federallawyer.org/2011/03/07/left-to-right-billington-betty-naomi-goldstein-friedan-1921-2006-barbara-ireton-and-marguerite-rawalt-1895-1989.html#comments Mon, 07 Mar 2011 11:56:59 +0000 Federal Lawyer http://www.federallawyer.org/?page_id=252

We see it on television all the time; high priced lawyers presiding over important cases and raking in the money left and right. The reality, however, is often quite different.

Yes, there is quite a lot of earning potential being a lawyer, but it takes years of practice and seasoning before you can really cash in on your degree. Let’s take a look at exactly how much you can expect to make with your law degree.

If your career path is leading you to join a private law firm directly out of college, your salary will vary wildly depending on where you plan to settle down. The career path of a lawyer isn’t that different than the career path of a journalist: start somewhere small, build a name and work your way up. If you are planning on starting out in a town with a population less than 150,000-200,000, you can expect to make less than $50,000 a year for the first few years.

If you feel that you have enough credentials or enough connections to get a job in a mid-sized market like San Antonio or Minneapolis, your salary can jump to $70,000 to $100,000. Of course, if you’re at the head of your class and you are ready to take on the world right out of the gate, you can easily make $150,000-$200,000 a year in places like Chicago, Los Angeles and New York City.

While these numbers sound rosy, you need to take into consideration the fact that every year, thousands of people graduate with their law degrees and the competition for these jobs, even the low paying ones in the smaller towns, is extreme. Refine your resume and get your things in order before you even try to apply.

According to government statistics released only a few years ago, the salary you earn can vary greatly on what kind of law you practice and where you choose to practice it.

For example, the median earnings of lawyers who worked directly for a company like Microsoft made approximately $131,000 a year. If you are employed by the federal government as a lawyer, you can expect to make just under $100,000 a year.

If you provide general legal services or are self employed as a lawyer, your income drops to $93,000 a year. Your salary will drop even further if you work for local or state government organizations. They tend to make around $67,000 a year. If you find yourself working for a university or college, your income five years out of school drops to $60,000 a year.

As you can see, your fortunes are directly influenced by where you choose to practice law once you leave school. Of course, any out of work law school grad will be quick to tell you that any and all of these jobs beats no job at all, but the promise of riches that many law students think is a right tend to be something they accomplish a decade down the road.

Originally published here.

Mark Warner is a Legal Research Analyst for RealDealDocs.com. RealDealDocs gives you insider access to millions of legal documents drafted by the top law firms in the US. Search over 10 million Legal Documents and Legal Agreements at http://www.RealDealDocs.com

Alex Kozinski, a Federal Judge in the 9th District, LA, has put out a memo, to the effect that “perhaps” federal Judges should allow Cameras in Court. Actually they did once over 4 years ago, when California was at a crisis due to lawsuit, about the varying county election vote systems. It was the wrong lawsuit, that was heard, but the point here, is that Cameras WERE in Court broadcasting LIVE TV coverage of the IN BANK fully 9th District hearing. You can see here, there are more than 3 federal judges questioning Mr. Tribe. The Lawsuit that should have been brought, and was sidelined on technicalities, was whether the DIABOLD type vote scanning could be hacked. We NOW know it can be, has been, and will be hacked to give false results and put in power people who were NOT honestly elected. This is relavant dictum, but not the point here. There is a Lawsuit of greater importance rotting on the desk of Federal Magistrate Brennen in Sacramento since December 2008, which would if approved, restore, a 30000 or less state assembly district, which would make it viable for the “common man” to win seats in the state Assembly again, instead of just the lobbyists and dishonest lawyers. We the economics of the Nation being destroyed blatantly, and Wall street robbing the people openly, with Congressional nail bidding and inaction, the US Senate stands in the way of saving the Republic from Civil WAR. With a enriched State Assembly, numering in excess of 1200, with a different no-none … ]]> http://www.federallawyer.org/2010/08/26/9th-district-federal-court-on-tv.html/feed 0 http://www.federallawyer.org/2010/08/25/a-history-of-the-federal-reserve-volume-2-book-1-1951-1969.html http://www.federallawyer.org/2010/08/25/a-history-of-the-federal-reserve-volume-2-book-1-1951-1969.html#comments Wed, 25 Aug 2010 21:50:59 +0000 Federal Lawyer http://www.federallawyer.org/?page_id=249

A History of the Federal Reserve, Volume 2, Book 1, 1951-1969 ]]> http://www.federallawyer.org/2010/08/25/a-history-of-the-federal-reserve-volume-2-book-1-1951-1969.html/feed 0