Should Courts Impose RICO’s Pretrial Restraint Measures on Substitute Assets?
This Note argues that courts should not apply RICO’s pretrial restraint measures to substitute assets. Part I examines the text of RICO’s forfeiture provisions in light of recent rulings by the Supreme Court providing guidance in interpreting the statute. Part I concludes that the statute’s plain meaning limits pretrial restraint measures to tainted assets. Part II examines language in the legislative history of an earlier attempt to add a substitute asset provision to RICO and in the 1984 change from broad to specific language in the pretrial restraint provision. From this language, Part II concludes that Congress did not intend for the pretrial restraint provision to apply to substitute assets. Finally, Part Ill examines the difference between tainted and substitute assets in light of the greater concern for defendants’ property rights that is manifested in the earlier stages of RICO prosecutions. Part III contends that the potential hardships associated with restraining orders and the risk of erroneous deprivation are good reasons for differentiating between tainted and substitute assets for purposes of pretrial restraints. This Note concludes that when a court finds that a portion of a defendant’s tainted assets is unavailable before trial, it should not try to compensate for this missing sum.by restraining substitute assets.