If you're facing a Racketeer Influenced and Corrupt Organizations (RICO) investigation or indictment in New York, understanding whether you’re being prosecuted under federal law or state conspiracy law can mean the difference between mounting an effective defense and walking into a courtroom unprepared.
While federal prosecutors can charge violations of the RICO Act (18 U.S.C. § 1961), New York State prosecutors must rely on traditional conspiracy charges under state law (N.Y. Penal Law § 105.00). Despite the availability of Enterprise Corruption (N.Y. Penal Law § 460.22), state prosecutors generally prefer to charge conspiracy. These are fundamentally different legal frameworks with different elements, penalties, and procedural rules.
Federal RICO charges carry 20-year sentences per count, asset forfeiture that can strip you of property before trial, and full weight of federal investigative resources. State prosecutions operate under different evidentiary standards and sentencing structures. You can face parallel prosecutions under both frameworks for the same conduct, forcing you to defend on two fronts with different legal standards, different prosecutors, and different juries.
At The Law Offices of Jason Goldman, we've built our practice on defending clients against complex criminal charges in New York's state and federal courts. Based in Manhattan and admitted to practice in New York, our firm has handled cases involving crime allegations under both state and federal frameworks. RICO and conspiracy cases require attorneys who understand how prosecutors build these cases and who can dismantle the “enterprise” and “pattern” elements in federal court or challenge the agreement and overt act requirements in state court. It is important to understand how federal RICO differs from New York state conspiracy prosecutions, and what those differences mean for your defense.
Brief Overview
Congress enacted the federal Racketeer Influenced and Corrupt Organization Act as Title 18 of the Organized Crime Act of 1970, signed into law by President Richard Nixon on October 15, 1970. The RICO Act was created to combat organized crime syndicates like the Italian Mafia (“La Cosa Nostra”), whose hierarchical structure made it difficult to prosecute high-ranking members who ordered crimes but rarely committed them directly. RICO's revolutionary approach shifted the prosecutorial focus from individual criminal acts to the criminal enterprise itself, allowing federal prosecutors to target the organization as a whole through the “pattern of racketeering activity” framework.
While New York enacted its own RICO-equivalent statute in 1986, the Organized Crime Control Act (OCCA), codified in Article 460 of the Penal Law (Enterprise Corruption Statute . State prosecutors rarely use it due to its narrow scope and rigorous proof requirements. Instead, when federal prosecutors might charge RICO violations, New York state prosecutors typically rely on traditional conspiracy charges under Penal Law § 105.00, which require proof of an agreement between two or more persons to commit a crime and an overt act in furtherance of that agreement. This practical reality means that defendants facing organized crime or multi-defendant allegations in New York must understand the fundamental differences between federal RICO's "pattern of racketeering activity" framework and state law's simpler but distinct conspiracy structure.
Key Differences Between State and Federal RICO
Scope of Predicate Offenses
Federal RICO requires proof of at least two “predicate acts” from a specific statutory list of racketeering activities (defined in 18 U.S.C. § 1961(1)) committed within a ten-year period including crimes like mail fraud, wire fraud, money laundering, drug trafficking, and murder to establish a “pattern of racketeering activity.”
In contrast, New York conspiracy law (Penal Law § 105.00) does not use predicate acts at all; instead, prosecutors must prove an agreement between two or more persons to commit any crime (the "object offense") plus an overt act in furtherance of that agreement. This fundamental structural difference means federal RICO casts a much wider net by allowing prosecutors to aggregate multiple criminal acts across years into a single charge, while state conspiracy focuses narrowly on the specific crime the defendants agreed to commit.
Burden of Proof & Procedural Standards
While both federal RICO and New York conspiracy charges require proof beyond a reasonable doubt at trial, federal RICO conspiracy (18 U.S.C. § 1962(d)) does not require proof of any overt act; the agreement alone is sufficient for conviction, whereas New York conspiracy law (Penal Law § 105.20) mandates that prosecutors prove at least one overt act in furtherance of the conspiracy.
Additionally, federal RICO allows conviction even if the defendant never personally committed any predicate acts, as long as the government proves the defendant agreed to participate in the enterprise's criminal objectives, while New York conspiracy requires proof that the defendant agreed to commit the specific object offense. This procedural difference means federal prosecutors have significantly more flexibility and a lower evidentiary threshold to secure RICO conspiracy convictions compared to state conspiracy prosecutions.
Penalties and Sentencing
Federal RICO violations carry up to 20 years imprisonment per count (or life if based on a predicate act punishable by life), plus mandatory criminal forfeiture of all property derived from or used in the racketeering activity meaning defendants can lose entire businesses, not just criminal proceeds and federal sentencing guidelines typically produce sentences of 20-24 years for serious RICO cases.
In contrast, New York conspiracy penalties are tiered by degree based on the object offense: conspiracy in the first degree (Class A-I felony) carries up to life imprisonment, conspiracy in the second degree (Class B felony) carries up to 25 years, and lower-degree conspiracy charges range from 1-7 years depending on the underlying crime, with no automatic forfeiture provisions comparable to federal RICO. This means federal RICO defendants face not only longer potential prison sentences but also the near-certain loss of assets and property interests tied to the alleged enterprise, while state conspiracy defendants face sentences calibrated to the specific crime they agreed to commit without the sweeping forfeiture consequences.
Forfeiture and Asset Seizure
Federal RICO mandates automatic criminal forfeiture upon conviction of any interest in the enterprise, any property derived from racketeering proceeds, and any property affording influence over the enterprise meaning defendants can lose entire businesses, real estate, and all assets connected to the alleged enterprise, not just criminal profits and prosecutors can obtain pre-trial restraining orders freezing all assets (including untainted funds needed for legal defense) before any conviction.
In contrast, New York's civil forfeiture statute (CPLR Article 13-A) requires prosecutors to file a separate civil action against the property owner, generally requires a felony conviction in a related criminal case before any forfeiture can occur, and provides defendants with statutory protections to access restrained funds for living expenses and legal fees during the proceedings. This fundamental difference means federal RICO defendants face immediate, sweeping asset freezes that can cripple their ability to mount a defense, while New York conspiracy defendants retain greater access to their assets and cannot lose property through forfeiture until after conviction in the underlying criminal case.
How Prosecutors Choose Between State and Federal Charges
Coordinated Prosecutorial Strategies in NY
In New York, federal prosecutors and state prosecutors frequently coordinate investigations through joint task forces to determine which jurisdiction will bring charges based on strategic considerations like the scope of criminal conduct, available penalties, and forfeiture provisions with federal prosecutors typically choosing RICO for interstate activity, multiple predicate offenses, and cases requiring mandatory forfeiture and longer sentences, while state prosecutors opt for conspiracy charges when conduct is more localized or state sentencing ranges are sufficient.
It is possible for defendants to face successive prosecutions by both federal and state authorities for the same underlying conduct without violating the Double Jeopardy Clause, meaning a defendant acquitted or convicted in state court on conspiracy charges can still be prosecuted federally under RICO (or vice versa). For defendants, understanding which prosecutor's office is leading the investigation and why they chose their forum is critical to mounting an effective defense, because the choice of federal RICO versus state conspiracy often signals the government's theory of the case, the evidence they believe they can prove, and the ultimate sentencing exposure the defendant faces.
Examples of Dual Prosecution
The most notorious example of dual prosecution in New York is John Gotti Sr., despite facing numerous state and federal prosecutions throughout the 1980s and winning several acquittals—he was ultimately convicted on federal RICO charges in 1992 by prosecutors in the Eastern District of New York, including five murders, loansharking, illegal gambling, and obstruction of justice, resulting in a life sentence without parole. Gotti's case illustrates how federal and state prosecutors can pursue the same defendant for overlapping conduct in separate forums, with state acquittals providing no protection against subsequent federal prosecution under the dual sovereignty doctrine affirmed in Gamble v. United States (2019).
Similarly, Oklahoma City bombing co-conspirator Terry Nichols was tried and convicted in federal court (receiving life imprisonment) and then separately prosecuted by the State of Oklahoma for the same bombing when state prosecutors sought the death penalty for state victims, demonstrating how different sovereigns can pursue different outcomes for identical conduct. This reality means that defendants in New York can face federal RICO charges in the Southern or Eastern District while simultaneously or subsequently facing state conspiracy charges from county district attorneys for the same criminal enterprise, forcing them to defend against overlapping indictments in two separate court systems with different procedural rules, evidentiary standards, and potential penalties—and an acquittal in one forum provides no protection against prosecution in the other.
Differences in Defense Approach to State vs Federal
Defending a federal RICO charge is significantly more complex and high-stakes than a state conspiracy case. In a RICO defense, the focus is on dismantling the government’s “big picture” by proving that no organized enterprise existed or that the alleged crimes were just isolated incidents rather than a connected pattern. Federal prosecutors only need to prove an agreement to participate; no physical action is required for a conviction. In contrast, New York state law requires an overt act, allowing a defense to argue that no concrete steps were ever taken to carry out the crime.
Beyond the courtroom, the financial and strategic pressures differ wildly. In federal cases, the government can freeze your assets before trial, even “clean” money making it difficult to afford a lawyer. State defendants typically keep their funds until after a conviction. Furthermore, because federal RICO sentences are so severe and asset loss is so total, defendants are often pressured to cooperate with the government early. State conspiracy defendants usually have more leverage to negotiate a plea deal without “flipping,” thanks to more moderate sentencing and more lenient forfeiture rules.
Conclusion
Understanding whether you face federal RICO charges or New York state conspiracy charges is not an academic exercise it determines the elements prosecutors must prove, the defenses available to you, the penalties you face, whether your assets will be frozen before trial, and whether you can be prosecuted twice for the same conduct under the dual sovereignty doctrine.
The differences between federal RICO's “enterprise” and “pattern of racketeering activity” framework and New York's “agreement plus overt act” conspiracy structure require fundamentally different defense strategies, and navigating these parallel systems demands counsel with deep experience in both federal and state criminal litigation. If you or someone you know is under investigation or has been charged with RICO or conspiracy offenses in New York, contact The Law Offices of Jason Goldman immediately—we have the specialized knowledge and trial experience necessary to protect your rights, challenge the government's case, and fight for the best possible outcome in either forum.
FAQ
Can the same conduct lead to charges under both state and federal RICO?
Yes, the same conduct can lead to you facing federal RICO charges and New York state conspiracy charges.
Can federal authorities take over a RICO case initiated by the state?
Federal authorities cannot simply “take over” a state case, but they can open their own parallel investigation and bring separate charges based on the conduct. This often happens through joint task forces, where federal and state prosecutors can coordinate and decide which office is best positioned to prosecute.