By Former US Attorney for Philadelphia David W. Marston

The Old Prosecutor
You don't need to be John Gotti--or even Tony Soprano--to be prosecuted criminally as a racketeer. You could, instead, be the ACORN employee who gave 19-year-old Freddie Johnson dollar bills and cigarettes in exchange for signing 73 fraudulent voter registration cards in critical swing-state Ohio. Indeed, beyond high-profile Mafia prosecutions, the federal Racketeer Influenced and Corrupt Organizations Act--RICO--has been used against targets as disparate as the Key West Police Department, financier Michael Milken and the Hell's Angels Motorcycle Club. The purpose of RICO is to focus on the criminal "enterprise," not just individual criminals, to prosecute and eliminate criminal organizations with multi-state or national reach. On conviction, RICO criminal enterprises forfeit all of their assets, and individual defendants are subject to stiff prison sentences. RICO cases need three key elements. Criminal charges can be brought against: (i) a "person," who is part of an (ii) an "enterprise" which includes any legal entity (iii) which engages in a "pattern of racketeering activity" (defined as committing any 2 of 35 named crimes within a 10-year period). And yes, fraud is one of the crimes that can trigger RICO. So let's consider the enterprise called ACORN. A successor to the militant and now defunct Welfare Rights Organization, the Association of Community Organizations for Reform Now has engaged in an in-your-face 30-year effort to "organize the poor" and bring about "social change." Typical ACORN tactics: In 1995, 500 ACORN protesters yelling "Nuke Newt" and "We Want Newt!" overwhelmed hotel security at the Washington Hilton, where Gingrich was scheduled to speak; the Speaker's speech was cancelled. On Capitol Hill, ACORN thugs shouting "CRA Has Got To Stay" and "Banks for Greed, Not for Need" muscled their way into control of a House Banking Committee hearing; they were finally removed by Capital Police. In Baltimore, ACORN activists dumped a huge pile of garbage in front of City Hall, and a busload of profanity-shouting protesters "demonstrated" outside Mayor Martin O'Malley's home. [They] "scared the daylights out of my wife and kids," O'Malley said. But scared apparently worked. After the O'Malley clash, ACORN got an annual $50,000 payment from the city of Baltimore, for "housing counseling for the poor." Similarly, across America, taxpayers at every level regularly--and unknowingly--ante up millions of dollars, to subsidize ACORN's extortions. Fast-forward to 2008. Supported in part by an $832,000 contribution from the Obama presidential campaign, an ACORN entity has engaged in a national "non-partisan" campaign to register new voters. ACORN uses paid hourly workers for the voter sign-ups, and hard-nosed bullying to enforce mandatory daily quotas (26 voter registrations per day for $9 an hour workers). Teshika Elder, a single mother from Cleveland who did voter registration for ACORN said: "Every day, there was pressure on us. Every single day." But pressure, like scared, worked. ACORN points with pride to the fact that 1.3 million new "voters" were registered nationwide. Unfortunately, one of those new Florida "voters" was named Mickey Mouse, and the Dallas Cowboys starting lineup also "signed" ACORN registration cards. ACORN workers found a homeless man reading a book in a Cleveland park, and under pressure, he signed some of the 13 registration cards that had his name, with his mother's house or workplace as his address. At last count, election officials in at least 15 states were looking into widespread fraud and abuse charges related to the ACORN registration tactics. In short, separate crimes in separate places. Pre-RICO, there would have been no effective way to prosecute all of the crimes together; organized crime thrived because a mob extortion in Miami could not be legally linked to a mob fraud in New York. But RICO changed all that. Now, when multiple crimes are committed in various jurisdictions, the prosecution target is the enterprise that links all the crimes together, and in the massive multistate election fraud of 2008, that enterprise is ACORN. And the recently disclosed FBI investigation into ACORN is evidence that the federal prosecutors get it. The need to consider ACORN for a potential RICO criminal prosecution is particularly acute at this point, because the U.S. Supreme Court recently scuttled the most ambitious effort by any state to insure the integrity of the 2008 federal election process against the ACORN registration onslaught. With thousands of suspect new voter registrations having been filed in Columbus, the Sixth Circuit Court of Appeals upheld a lower court in ordering the Ohio Secretary of State to verify the new voters' identity, by matching information with the Ohio Bureau of Motor Vehicles and the Social Security Administration. Based on a narrow legal technicality, however, the U.S. Supreme vacated that order. ACORN's "mismatches" will be allowed to vote in Ohio, and may well decide the outcome of the presidential election. At this point, there is no possibility that a RICO prosecution against ACORN will be brought in the remaining few days before the election--nor should it be. But after the election, no matter who wins, in light of ACORN's blatant registration fraud, a vigorous RICO prosecution against ACORN is essential to restore the integrity of the American electoral process. (David W. Marston previously served as U.S. Attorney for the Eastern District of Pennsylvania which includes the city of Philadelphia)