There may appear to be a lack of uniformity in the courts' identification of which of the one or more of these three elements are necessary. Some courts have indicated that knowledge, alone, is a sufficient basis for imposing vicarious liability 36. Some have indicated that benefit, by itself, is sufficient 37. Others have indicated that the principal's participation is essential 38. And others have pushed all of this aside indicating that apparent authority principles may support imposing vicarious liability 39; however, this line of decisions lacks universal support 40, and the idea of its application is inconsistent with the focus on identifying legitimate businesses.
Whether vicarious liability should attach is a fact-intensive issue the analysis of which can only be done on a case-by-case basis, each case necessitating consideration of potentially widely different circumstances. The decisions that now provide the background for the analysis may appear to be so different as to foster potentially significant inconsistencies; however, the analysis should not disregard any one factor. Rather, each of these factors is and should be an appropriate consideration in the analysis for determining the principal's legitimacy and whether it deserves protection from or should be exposed to 1962(c) vicarious liability.
3.3 What Organizations May Be Vicariously Liable for Their Agents' 1962(c) Violations
The great majority of the decisions discussed above evidence that vicarious liability may extend to just about every type of business and employer. In addition, the courts have indicated that vicarious liability may extend to unions 41, partnerships 42 and, presumably, to non-profits 43. But, the courts have consistently refused to extend 1962(c) vicarious liability to political subdivisions.
The courts identify three bases for their refusal to extend vicarious liability to political subdivisions: 1) the inapplicability of agency liability to RICO, 2) political subdivisions' incapability of forming the requisite criminal intent and 3) the impropriety of assessing political subdivisions with punitive damages 44. Decisions that focus on the purported inconsistency between agency liability and RICO45 are wide of the mark. These decisions are predicated on early opinions rooted in the distinctness rule 46, which does not per se foreclose application of vicarious liability. The decisions that focus on the two other considerations appear to be on stronger ground; however, for reasons discussed below, argument exists that political subdivisions should be subject to 1962(c) vicarious liability.
4.0 The Adoption of Federal Sentencing Guidelines for Organizations May Bear on the Scope and Elements of 1962(c) Vicarious Liability Claims
Effective November 1, 1991, years after vicarious liability for 1962(c) claims had taken firm root, the Federal Sentencing Commission amended the Sentencing Guidelines, which amendment Congress approved 47, adding guidelines and policy statements that address the sentencing of organizational defendants for criminal misconduct perpetrated by them and their agents 48. As these Guidelines provide a framework, which framework Congress approved, for determining whether to assess a punitive fine against a principal whose agent engages in racketeering activity, they may bear on 1962(c) vicarious liability's application and elements.
Generally, these Guidelines confirm that application of 1962(c) vicarious liability is appropriate, and they support extending liability beyond just businesses and unions and to political subdivisions. These Guidelines also identify additional considerations that may pertain to the analysis for determining when 1962(c) vicarious liability should attach.
4.1 The Guidelines, Generally
The Introductory Commentary to Chapter Eight of the Sentencing Guidelines outlines the Guidelines' focus as to organizational liability49.
The guidelines and policy statements in this chapter apply when the convicted defendant is an organization. Organizations can act only through agents and, under federal criminal law, generally are vicariously liable for offenses committed by their agents. At the same time, individual agents are responsible for their own criminal conduct. Federal prosecutions of organizations therefore frequently involve individual and organizational co-defendants. Convicted individual agents of organizations are sentenced in accordance with the guidelines and policy statements in the preceding chapters. This chapter is designed so that the sanctions imposed upon organizations and their agents, taken together, will provide just punishment, adequate deterrence, and incentives for organizations to maintain internal mechanisms for preventing, detecting, and reporting criminal conduct50.
This chapter reflects the following general principles: First, the court must, whenever practicable, order the organization to remedy any harm caused by the offense. The resources expended to remedy the harm should not be viewed as punishment, but rather as a means of making victims whole for the harm caused. Second, if the organization operated primarily for a criminal purpose or primarily by criminal means, the fine should be set sufficiently high to divest the organization of all its assets. Third, the fine range for any other organization should be based on the seriousness of the offense and the culpability of the organization. The seriousness of the offense generally will be reflected by the highest of the pecuniary gain, the pecuniary loss, or the amount in a guideline offense level fine table. Culpability generally will be determined by the steps taken by the organization prior to the offense to prevent and detect criminal conduct, the level and extent of involvement in or tolerance of the offense by certain personnel, and the organization's actions after an offense has been committed. Fourth, probation is an appropriate sentence for an organizational defendant when needed to ensure that another sanction will be fully implemented, or to ensure that steps will be taken within the organization to reduce the likelihood of future criminal conduct.
To the extent that there remains any debate as to the applicability of vicarious liability for 1962(c) violations, this Commentary should dispel that dispute51. In certain terms, approved by Congress, the Guidelines specify that an organization can be vicariously liable for its agent's criminal activity, which criminal activity includes 1962(c) violations 52. Moreover, these Guidelines demonstrate that Congress, by approving these Guidelines, has supported extending vicarious liability for 1962(c) violations beyond businesses and unions and to political subdivisions.
4.2 Extending 1962(c) Vicarious Liability to Political Subdivisions
Entities subject to these Guidelines include "corporations, partnerships, associations, joint-stock companies, unions, trusts, pension funds, unincorporated organizations, governments and political subdivisions thereof, and non-profit organizations." 53; As these Guidelines apply to RICO violations54, Congress has expressed approval for subjecting these entities to vicarious liability for their agent's racketeering activity. This should confirm that non-profits and partnerships may be vicariously liable for this activity. More significantly, this may be cause for the courts to reconsider that line of cases that reject application of 1962(c) vicarious liability to political subdivisions.
Before adoption of these Guidelines, there were two viable bases for refusing to extend 1962(c) vicarious liability to political subdivisions: 1) political subdivisions' incapability of forming the requisite criminal intent and 2) the impropriety of assessing them with punitive damages 55. These Guidelines dismiss both of these concerns.
The Guidelines clearly reflect that political subdivisions' incapability of forming criminal intent is irrelevant, and that it is appropriate to hold a political subdivision vicariously liable for its agent's racketeering."Organizations [which under the Guidelines include political subdivisions] can act only through agents and, under federal criminal law, generally are vicariously liable for offenses [which under the Guidelines include racketeering] committed by their agents." 56
Likewise, the Guidelines reflect the appropriateness of financially punishing a municipality for its agents' racketeering. The opposing argument is that taxpaying citizens should not be burdened with this liability 57. Yet Congress has expressed a contrary view by approving Guidelines that subject political subdivisions to punitive fines assessed against them based on misconduct, which may include a 1962(c) violation. Arguably, because these punitive fines against political subdivisions may be available under the Guidelines, their corollary, treble damages, should likewise be available under 18 U.S.C. §1964 for the same misconduct.
Admittedly, the Guidelines specifically allow for departure in the case of political subdivisions 58; however, this does not change the fact that Congress has approved a mechanism that subjects taxpayers to liability for the criminal misconduct of their elected officials. If anything, this indicates that in some circumstances it is appropriate to impose punitive liability on a political subdivision for the criminal misconduct of its agents. Moreover, extending 1962(c) vicarious liability to political subdivisions is consistent with RICO's liberal construction clause. The remaining question is under what circumstances should a political subdivision be vicariously liable. Forthcoming decisions discussing § 8C4.7 should provide guidance in this regard.
Copyright 1999 Bradley J. Haight, J.D. Tulane University 1993.
FOOTNOTES
36 See e.g. Metro Furniture Rental, Inc., 770 F.Supp. at 201-02 (granting dismissal motion, court, citing Kahn, 760 F.Supp. 369, held evidence of bank's knowledge of or involvement in scheme, of corporate policy consistent with the misconduct or evidence of benefit to the corporation was necessary to support application of vicarious liability); R.E. Davis Chemical Corp., 757 F.Supp. 1499 (granting dismissal motion, court held plaintiff failed to allege knowledge or involvement of upper-level management of corporation in alleged scheme sufficient to support a finding of vicarious liability under section 1962(a), which it interpreted D&S Auto Parts, Inc., 838 F.2d 964, Liquid Air Corp., 834 F.2d 1297 and SK Hand Tool Corp. 852 F.2d 936 to require); Harrison, 695 F.Supp. at 692 (stated D&S Auto Parts, Inc., 838 F.2d 964 is limited to situations in which corporation is not aware of employee's wrongdoing); Woods, 676 F.Supp. at 147 (held constructive knowledge of agent's RICO violations may be sufficient to hold principal vicariously liable); Rush, 628 F.Supp. 1195 (could stated no vicarious liability under 1962(c) for account representative's predicate acts absent knowledge or participation of employer firm).
37 See Brady, 974 F.2d at 1154 (indicates benefit and distinctness are the only requirements to imposing vicarious liability); Liquid Air Corp., 834 F.2d at 1306 (speaking of vicarious liability, generally, court, relying on Haroco, 747 F.2d 384 indicated that imposition was appropriate if the corporation derived a benefit and its imposition was not inconsistent with Congressional intent, that is, imposition would not violate the distinctness requirement); National Elec. Benefit Fund., 931 F.Supp. at 187 ("[A] corporate employer may be held vicariously liable under § 1962(c) for the acts of its employees "when the employer is not the enterprise and the employer receives some benefit from its employee [sic] or agent's action." Brady v. Dairy Fresh Products Co., 974 F.2d 1149,1154 (9th Cir.1992))([sic] in original); Arenson, 880 F.Supp. at 1213 (citing Liquid Air Corp., 834 F.2d 1297 indicated that benefit from the RICO violation is necessary for imposition of Respondeat superior liability); Crowe, 848 F.Supp. at 1263 (citing Brady, 974 F.2d at 1155 which cites Petro-Tech, Inc., 824 F.2d at 1357-58 and Sedima, 473 U.S. 479,493, 105 S.Ct. 3275,3283, 87 L.Ed.2d 346 court indicated that a non-enterprise organization can be vicariously liable for its employees RICO violations if the organization benefitted from that conduct); Center Cadillac, 808 F.Supp. at 236 (denying dismissal motion based in part on argued inapplicability of vicarious liability, court noted that plaintiff had pleaded a sufficient complaint by alleging that defendant benefitted from the racketeering activity); Metro Furniture Rental, Inc., 770 F.Supp. at 201-02 (granting dismissal motion court, citing Kahn, 760 F.Supp. 369, held that evidence of bank's knowledge of or involvement in scheme, of corporate policy consistent with the misconduct or evidence of benefit to the corporation was necessary to support application of Respondeat superior liability); Amendolare., 747 F.Supp. at 168-69 (application of Respondeat superior is appropriate where the employer benefitted); Woods, 676 F.Supp. at 147 (denying defendant's dismissal motion, court relying on Bernstein, 582 F.Supp. at 1083 and Hunt, 626 F.Supp. 1097 held that defendant/employer -- which, interestingly, appears also to have been the enterprise -- could be liable for employees RICO violations if the employer benefitted from the employee's acts or had reason to question the employees' actions); Connors, 666 F.Supp. at 453 (application of Respondeat superior is appropriate where the employer benefitted); Banque Worms, 652 F.Supp. at 772 (rejected claims where there was no allegation that any officers knew of or benefitted from the scheme).
38 See e.g. Davis, 6 F.3d 367 (affirmed jury finding of liability based on vicarious liability principles where principal actively promoted, sponsored and benefitted from the fraudulent scheme); Busby, 896 F.2d at 839 n.5 (quoting D&S Auto Parts, Inc., 838 F.2d at 967, states "[t]he formulation of the statute is designed to impose liability upon a corporation which is a perpetrator of illegal activity but not upon an unwitting conduit of its employees' RICO violations."); SK Hand Tool Corp., 852 F.2d at 941(corporate defendant that is an unwilling conduit could not be vicariously liable); Petro-Tech, Inc., 824 F.2d at 1361-62 (application of vicarious liability is proper where the corporation attempted to benefit from its employees racketeering activity); Bennett, 710 F.2d at 1364 (imposition of vicarious liability requires some degree of participation on the part of the principle); Standard Chlorine of Delaware, Inc., 821 F.Supp. at 250 (denying defendants' summary judgment motions and citing B.F. Hirsch, 751 F.2d at 633-34 for the proposition that the focus of 1962(c) is on punishing "infiltrating criminals rather than the legitimate corporation which might be an innocent victim of the racketeering activity", court indicates that absence of risk of innocent victim corporation being liable permits application of vicarious liability); Mylan Laboratories, Inc., 770 F.Supp. at 1070 (rejected dismissal motion where plaintiff alleged that defendant corporations were, allegedly, involved in the scheme and were not victims or unwitting conduits of their employee's alleged scheme); R.E. Davis Chemical Corp., 757 F.Supp. 1499 (granting dismissal motion, court held that plaintiff failed to allege knowledge or involvement of upper-level management of corporation in alleged scheme sufficient to support a finding of vicarious liability under section 1962(a), which it interpreted D&S Auto Parts, Inc., 838 F.2d 964, Liquid Air Corp., 834 F.2d 1297 and SK Hand Tool Corp., 852 F.2d 936 to require); Philan Ins. Ltd., 748 F.Supp. at 198 (granting dismissal motion, court stated "[c]orporate defendants cannot be held vicariously liable under RICO for the individual wrongdoing of their employees on a theory of Respondeat superior where plaintiff has not alleged any facts which portray the company as an active perpetrator of the fraud or a central figure in the criminal scheme. See Banque Worms v. Luis A. Duque Pena E. Hijos, Ltda., 652 F.Supp. 770,773 (S.D.N.Y.1986)("[I]t would be a distortion of both the language and intent of the statute to hold the corporation vicariously responsible under RICO for an elaborate fraud merely because one of its employees may have contributed to the scheme."); Intre Sport Ltd., 625 F.Supp. at 1309-10; FMC Corp., 727 F.Supp. at 1199 (failure to plead direct participation by defendant investment firm precluded firm's liability for employee's actions); Gruber, 679 F.Supp. at 181("What constitutes a "central figure" will vary with the factual circumstances of each case. In order to establish corporate liability under Section 1962(c), however, it is necessary to show that an officer or director had knowledge of, or was recklessly indifferent toward, the unlawful activity .... [t]he court may then consider other factors, among them the number of high-level employees involved in the racketeering activity, their degree of participation in the racketeering activity, whether these high-level employees themselves committed the alleged predicate acts, and whether the corporation directly and substantially benefitted from the racketeering activity."); Continental Data Systems, 638 F.Supp. at 440 (no proof that employer approved of or adopted predicate acts); Intre Sport Ltd., 625 F.Supp. at 1310 (refused to impose liability on corporation for conduct of one of many vice presidents who did not operate at a policy-making level); Rush, 628 F.Supp. at 1195 (no vicarious liability under 1962(c) for account representative's predicate acts absent knowledge or participation of employer firm); Curley, 134 F.R.D. at 81 (in discussing issuance of protective order to prevent plaintiff from interviewing, ex parte, defendant's former loss prevention specialists who allegedly perpetrated the alleged fraud on defendant's behalf, court, relying on Petro-Tech, Inc., 824 F.2d at 1359 and Schofield, 793 F.2d at 32-33, stated it could not impute predicate acts of low level employees to corporation absent evidence that the corporation "directed" the extortionate activity); K&S Partnership, 127 F.R.D. at 669 (proof of corporate policy to violate RICO necessary to impose liability).
39 Cf. Harrison v. Dean Witter Reynolds, Inc., 715 F.Supp. 1425,1429-32 (N.D.Ill.1989)(granting defendant's summary judgment motion, court held that application of neither actual nor apparent authority doctrines as defined by the Restatement (Second) of Agency supported imposition of Respondeat superior liability; a reasonable jury could not find actual authority where the employees were not acting within the scope of their employment nor could it find apparent authority where the transaction did not seem regular on its face); Rowland, 689 F.Supp. at 799 (denying defendants' summary judgment motions, court noted that application of apparent authority could be appropriate for imposing Respondeat superior liability); Bernstein, 582 F.Supp. at 1083; Morley v. Cohen, 610 F.Supp. 798,811 (D.C.Md.1985).
40 See Metro Furniture Rental, 770 F.Supp. at 202 (granting dismissal motion, court, citing Amendolare, 747 F.Supp. at 169 as having warned against application of apparent authority to passive entities victimized by low-level employees, rejected plaintiff's reliance on apparent authority principles).
41 Cf. e.g. Cox, 17 F.3d 1386; Landry, 901 F.2d 404.
42 See e.g. 131 Main Street Associates v. Manko, 897 F.Supp. 1507,1533-35 (S.D.N.Y.1995)(in rejecting partner/defendants' dismissal motions, the court, citing American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982)(general principles of agency law permitted holding a corporation vicariously liable under antitrust laws) as analogous and considering RICO's primary purpose as cited in Turkette of being to cope with the infiltration of legitimate business by organized crime, held that general partners, who had no connection to the alleged scheme, may be jointly and severally liable, based on principles of partnership liability, which the court identifies as a subspecies of vicarious liability, for the RICO violations of their partnership and of their managing partners).
43 In American Society of Mechanical Engineers , 456 U.S. 556, 102 S.Ct. 1935, 72 L.Ed.2d 330, the Supreme Court held a non-profit association civilly liable for antitrust violations of its agents committed with apparent authority. As much of RICO's history is rooted in antitrust law, see Sedima, 473 U.S. at 487, 105 S.Ct. at 3280, 87 L.Ed.2d 346 (noting that RICO treble damages provision is comparable to damages under antitrust laws) and In Re National Mortg. Equity Corp. Mortg. Pool, 636 F.Supp. 1138,1155-56 n.24 (C.D.Cal.1986)(noting that RICO was originally proposed as an amendment to the Sherman Act), and considering that both address similar concerns, it would seem to follow that liability, including vicarious liability, would extend under RICO to a non-profit association.
44 See e.g. Lancaster Com. Hosp. v. Antelope Valley Hosp.D., 940 F.2d 397,404-05 (9th Cir.1991)(rejecting application of direct RICO liability to municipality based on incapability of government to form malicious intent essential to mail fraud, court also rejected imposing liability on the "body politic" by appeals to Respondeat superior stating "[e]xemplary damages are not available against municipal corporations, 'because such awards would burden the very taxpayers and citizens for whose benefit the wrongdoer [i]s being chastised.' 453 U.S. at 263, 101 S.Ct. at 2757. Since civil RICO damages are not merely compensatory, but are trebled, 18 U.S.C. § 1964(c), Newport is compelling. As such, Lancaster cannot establish that Antelope or District committed mail fraud, and its RICO claim against them fails."); Gentry v. Resolution Trust Corp., 937 F.2d 899,910 (3d.Cir.1991)(RICO's mandatory treble damage provision cannot be imposed on political subdivisions); Biondolillo v. City of Sunrise, 736 F.Supp. 258,260-61 (S.D.Fla.1990)(granting defendant municipality's Rule 12(b)(6) motion dismissing plaintiff's RICO claims against the municipality court noted three bases for why RICO liability may not extend to municipality: 1) municipality cannot be liable for predicate acts, 2) municipality cannot be liable for punitive damages and 3) agency liability is not a basis for imposing liability under RICO); Rini v. Zwirn, 886 F.Supp. 270,294-95 (E.D.N.Y.1995)(because a municipality is incapable of forming criminal intent necessary to establish the requisite predicate acts it cannot be liable under RICO and because municipalities agents mens rea could not be imputed to the municipality, municipal entities may not be held civilly liable under RICO through application of Respondeat superior); Dammon v. Folse, 846 F.Supp. 36,38-39 (E.D.La.1994)(RICO's mandatory treble damage provision cannot be imposed on municipalities); Albanese v. City Federal Savings and Loan Ass'n, 710 F.Supp. 563,567-69 (D.N.J.1989)(municipality may not be held liable under 1962(c) for the acts of its employees because it is incapable of manifesting criminal intent); Massey v. City of Oklahoma City, 643 F.Supp. 81 (W.D.Okla.1986)(RICO's mandatory treble damage provision cannot be imposed on municipalities).
45 See e.g. Biondolillo, 736 F.Supp. at 260-61.
46 See e.g. Biondolillo, 736 F.Supp. at 260-61 (citing In re Citisource, Inc., 694 F.Supp. 1069,1080 (S.D.N.Y.1988), Schofield, 793 F.2d at 32-34 and Petro-Tech, Inc., 824 F.2d at 1359).
47 The Sentencing Commission added chapter 8 of the Guidelines pursuant to 28 U.S.C. § 994(p), which authorizes the Commission to amend the Guidelines after submission of the proposed amendment to Congress not later than the first of May. A proposed amendment takes effect 180 days after its submission or not later than the first of November "except to the extent that the effective date is revised or the amendment is otherwise modified or disapproved by Act of Congress."
48 See USSG Ch.8.
49 The Sentencing Commission promulgates the guidelines by virtue of an express congressional delegation of authority for rulemaking, see Mistretta v. United States, 488 U.S., at 371-379, 109 S.Ct., at 654-659, and through the informal rulemaking procedures in 5 U.S.C. § 553, see 28 U.S.C. § 994(x). Thus, the guidelines are the equivalent of legislative rules adopted by federal agencies. The functional purpose of commentary (of the kind at issue here) is to assist in the interpretation and application of those rules, which are within the Commission's particular area of concern and expertise and which the Commission itself has the first responsibility to formulate and announce. In these respects, this type of commentary is akin to an agency's interpretation of its own legislative rules. As we have often stated, provided an agency's interpretation of its own regulations does not violate the Constitution of a federal statute, it must be given "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowes v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989); Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341, 90 L.Ed.2d 921 (1986); United States v. Larionoff, 431 U.S. 864, 872-873, 97 S.Ct. 2150, 2155-2156, 53 L.Ed.2d 48 (1977); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965). See also 2 K. Davis, Administrative Law Treatise § 7:22, pp. 105-107 (2d ed.1979). Stinson v. U.S., 508 U.S. 36, 44-45, 113 S.Ct. 1913,1919, 123 L.Ed.2d 598 (1993).
50 USSG Ch.8 intro. comment.
51 In some respects, it may appear that this framework undermines the notion that an organization should be per se vicariously liable for treble damages under 1962(c). Congress could have directed that a specific fine must attach, as is the case with imposition of RICO treble damages, which automatically attach to the vicariously liable organization. Instead, the Guidelines tie the extent of the organization's fine to its complicity. And therefore, the reasoning continues, no fixed damages should vicariously apply in the civil RICO context. This is not cause to reject 1962(c) vicarious liability. Just as the Guidelines do not make any provision for imposing a trebled fine, they also do not indicate Congressional intent to eliminate 1962(c) vicarious liability and its mandatory imposition of treble damages. Instead, the Guidelines are consistent with and, arguably, anticipate such liability attaching. An organization sentenced under the Guidelines could face a fine far greater than three times the victim's actual damages, as would be imposed upon a finding of 1962(c) vicarious liability. This demonstrates that Congress intends to extend to organizations vicarious liability that results in imposition of significant punitive financially liability. Moreover, the Guidelines appear to consider the prospect of civil liability, which could include 1962(c) vicarious liability, attaching by allowing for departure where "the organization has paid or has agreed to pay remedial costs arising from the offense that greatly exceed the gain that the organization received from the offense, ...." See USSG § 8C4.9.
52 Cf. USSG § 8C2.1(b)(§ 8C2.1, "Applicability of Fine Guidelines", states "§§ 8C2.2 through 8C2.9 apply to each count" of the listed guideline offense levels including § 2E1.1, which applies to RICO violations).
53 USSG § 8A1.1 commentary. (n.1)
54 Cf. USSG § 8C2.1(b)(§ 8C2.1, "Applicability of Fine Guidelines", states "§§ 8C2.2 through 8C2.9 apply to each count" of the listed guideline offense levels including § 2E1.1, which applies to RICO violations).
55 The one other basis urged, the incompatibility between agency liability and civil RICO, has long been rejected.
56 USSG Ch.8 intro. comment. (italics in original).
57 See e.g. Lancaster Com. Hosp., 940 F.2d at 404-05("It would offend public policy to hold the citizens of a state liable for extraordinary damages as a result of the actions of a few dishonest officials. 'Exemplary damages are not available against municipal corporations, 'because such awards would burden the very taxpayers and citizens for whose benefit the wrongdoer [i]s being chastised.' 453 U.S. at 263, 101 S.Ct. at 2757. Since civil RICO damages are not merely compensatory, but are trebled, 18 U.S.C. § 1964(c), Newport is compelling. As such, Lancaster cannot establish that Antelope or District committed mail fraud, and its RICO claim against them fails.").
58 See USSG § 8C4.7.
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