The Overt Act


Fundamentals of Criminal Law

Adam J. McKee, Ph.D.

Jack Brown, Ph.D.


Most states and the federal statute now require proof of an overt act in furtherance of the conspiracy.  The overt act requirement is satisfied by even an insignificant act that is far removed from the commission of a crime. As Justice Oliver Wendell Holmes observed, “The essence of the conspiracy is being combined for an unlawful purpose—and if an overt act is required, it does not matter how remote the act may be from accomplishing the purpose if done to effect it. . . .” In past cases, attending a meeting of the Communist Party was considered to constitute an overt act in furtherance of a Communist conspiracy to overthrow the United States government, and purchasing large quantities of dynamite satisfied the overt act requirement for a conspiracy to blow up a school building.  

In other cases, the overt act has been satisfied by observing the movements of an intended kidnapping victim or by purchasing stamps to send poison through the mail.  An overt act by any party to a conspiracy is attributed to every member and provides a sufficient basis for prosecuting all the participants. The requirement of an overt act is intended to limit conspiracy prosecutions to agreements that have progressed beyond the stage of discussion and that therefore present a social danger.

Racketeer Influenced and Corrupt Organizations Act (RICO)

Passed in 1970, the Racketeer Influenced and Corrupt Organizations Act (RICO) is a federal law designed to combat organized crime in the United States. It allows prosecution and civil penalties for racketeering activity performed as part of an ongoing criminal enterprise. Such activity may include illegal gambling, bribery, kidnapping, murder, money laundering, counterfeiting, embezzlement, drug trafficking, slavery, and a host of other unsavory business practices.

To convict a defendant under RICO, the government must prove that the defendant engaged in two or more instances of racketeering activity and that the defendant directly invested in, maintained an interest in, or participated in a criminal enterprise affecting interstate or foreign commerce. The law has been used to prosecute members of the mafia, the Hells Angels motorcycle gang, and Operation Rescue, an anti-abortion group, among many others.

“Racketeering activity” means 

(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; 

(B) any act which is indictable under any of several provisions of title 18 (the penal code) of the United States Code.

Prior to RICO, prosecutors could only try mob-related crimes individually. Since different mobsters perpetrated each crime, the government could only prosecute individual criminals instead of shutting down an entire criminal organization. Today, the government rarely uses RICO against the Mafia. Instead, because the law is so broad, both governmental and civil parties use it against all sorts of enterprises, both legal and illegal.

While RICO was originally aimed at the Mafia, over the past 37 years, prosecutors have used it to attack many forms of organized crime: street gangs, gang cartels, corrupt police departments and even politicians.

References and Further Reading

“Conspiracy.” Encyclopedia of Crime and Justice.

: http://www.encyclopedia.com/law/legal-and-political-magazines/conspiracy

 

“Racketeer Influenced and Corrupt Organizations Act (RICO)” Gale Encyclopedia of U.S. Economic History.  Retrieved October 01, 2019 from Encyclopedia.com: https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/racketeer-influenced-and-corrupt-organizations-act-rico

Modification History

File Created:  07/13/2018

Last Modified:  10/03/2019

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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