February 3, 2005
Sports Conviction-Should this be RICO?
Logan Young Jr., an investment banker, was convicted of paying a high school football coach, Lynn Lang, in order to recruit a star player to the Alabama team. Find out more here, here, here (subscription required), The case proceeds into the forfeiture portion of the trial today. We previously reported on this case here.
Why was RICO used in this prosecution? Would bribery charges have been sufficient? RICO is an easy choice for prosecutors when they have two or more predicate acts that operate with continuity and are related to each other. RICO usually allows for higher sentences.
But RICO, because of the ease with which it can be used requires approval above the individual United States Attorney's Office. In the past, sports prosecutions of this nature have been charged using the mail fraud statute. RICO sends a very strong message to everyone that paying for the recruitment of college athletes will not be tolerated. But was it necessary here?
This case is a perfect example of the prosecutorial discretion that can operate to determine the sentence a defendant receives. If the predicate acts had been prosecuted, then the court would be sentencing premised upon those specific charges. By adding RICO, the prosecution places before the court additional conduct that increases the potential sentence of the defendant. The prosecutor had the choice of what charges to bring and thus the choice of controlling the sentence. Deputy Attorney General James Comey in his memo discussed here (and in detail on the Berman Sentencing Blog) calls it "challenging times" now that judges have some oversight of prosecutorial discretion as a result of the Supreme Court's decision in Booker. It is unfortunate that DAG Comey thinks that an appropriate balancing of power between the prosecution and judiciary is a "difficult time."