Under, the Racketeer Influenced and Corrupt Organization Act (RICO), it is illegal “for any person through a pattern of racketeering activity… to acquire or maintain…any interest in or control of any enterprise which is engaged in, or the activities affect, interstate of foreign commerce”. Because marijuana remains illegal under the federal Controlled Substances Act, state-legal marijuana businesses, by definition, involve racketeering activity in violation of RICO. When the government employs RICO against a defendant, the prosecution must prove, under 18 U.S.C. § 1962, that a person: (i) through the commission of two or more acts (ii) constituting a pattern of racketeering activity (iii) directly or indirectly invested in, maintained an interest in, or participated in, an enterprise, (iv) the activities of which affected interstate or foreign commerce. In addition to criminal liability, RICO also provides a civil cause of action for a party injured by the racketeering activity; in a civil RICO claim, a plaintiff must prove the elements, an injury to property or business, and proximate cause.
RICO’s potential power lies in who can bring a RICO claim and what entities can be subject to a RICO violation. First, any person who is “injured in his business or property by reason of a [RICO] violation may bring a RICO claim. Second, that RICO claim can be filed against not only the enterprise that directly engages in the cultivation and sale of marijuana, but also against “any individual or entity capable of holding a legal or beneficial interest in property.” This means that banks, insurance companies, accountants, landlords, business attorneys and anyone else involved in the operation of the cannabis enterprise may be exposed to RICO liability; as long as the conspirator intends to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense. No overt act is required.