Civil Investigative Demand (CID) in RICO Cases - 18 U.S. Code § 1968
If you are under investigation for a federal criminal offense under the Racketeer Influenced and Corrupt Organizations Act (RICO), or if federal agents believe you at least have information pertinent to a RICO case, you may find yourself served with a Civil Investigative Demand (CID) requesting such information.
While CIDs are common in various federal investigations, Title 18 U.S.C. 1968 gives the United States Justice Department (DOJ) broad authority to issue these demands in RICO cases.
If you are served with a CID, it's critical to understand what this means and how to respond appropriately. If you fail to comply, even though no charges have yet been filed, you could face penalties and contempt of court.
18 U.S.C. 1968 says, "(a) Whenever the Attorney General has reason to believe that any person or enterprise may be in possession, custody, or control of any documentary materials relevant to a racketeering investigation, he may before the institution of a civil or criminal proceeding thereon, issue in writing, and cause to be served upon such person, a civil investigative demand requiring such person to produce such material for examination.
(b) Each such demand shall -
(1) state the nature of the conduct constituting the alleged racketeering violation under investigation and the provision of law applicable to it.
(2) describe the class or classes of documentary material produced thereunder with such definiteness and certainty as to permit such material to be fairly identified.
(3) state that the demand is returnable forthwith or prescribe a return date which will provide a reasonable period within which the material so demanded may be assembled and made available for inspection and copying or reproduction; and
(4) identify the custodian to whom such material shall be made available."
What is a Civil Investigative Demand (CID)?
A Civil Investigative Demand is a legal tool federal authorities use to gather information during a case investigation. Essentially, it's a government-issued document that requires the recipient to provide certain information, including documents, written answers to questions, or oral testimony.
Unlike a standard subpoena, a CID is not issued as part of a lawsuit or criminal trial but rather during an investigation before formal charges are filed.
CIDs are a pivotal mechanism for uncovering complex racketeering activities in RICO cases. Under 18 U.S.C. 1968, these demands can gather a wide array of evidence, such as financial records, emails, or corporate documents, which might indicate illegal activities like bribery, fraud, or money laundering.
The effectiveness of CIDs lies in their ability to compel the production of evidence that might not be otherwise accessible to investigators. They also serve as an early indicator to individuals or entities that they are under federal scrutiny, which can significantly impact the dynamics of the investigation and subsequent legal proceedings.
Notably, however, under 18 U.S.C. 1968(c), it says, “No such demand shall -
(1) contain any requirement which would be held to be unreasonable if contained in a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation of such alleged racketeering violation; or
(2) require producing any documentary evidence that would be privileged from disclosure if demanded by a subpoena duces tecum issued by a court of the United States to aid a grand jury investigation of such alleged racketeering violation.”
How Does CID Differ from Other Forms of Discovery?
The primary difference between a CID and other forms of discovery lies in when and how they are used. Traditional discovery devices such as subpoenas, depositions, or interrogatories are generally employed after an indictment has been issued.
On the other hand, a CID is primarily used before formal legal proceedings, allowing investigators to gather information that might lead to filing a lawsuit or criminal charges. A CID might persuade prosecutors to drop the case if it does not produce valuable information or evidence.
What Are Related Federal Laws?
18 U.S. Code Chapter 96, Racketeer Influenced and Corrupt Organizations, has several federal laws that are related to 18 U.S.C. 1968, civil investigative demand, including the following:
- 18 U.S.C. 1961 - Definitions,
- 18 U.S.C. 1962 - Prohibited activities,
- 18 U.S.C. 1963 - Criminal penalties,
- 18 U.S.C. 1964 - Civil remedies,
- 18 U.S.C. 1965 - Venue and process,
- 18 U.S.C. 1966 - Expedition of actions,
- 18 U.S.C. 1967 - Evidence.
How Does a CID Work in a RICO Case?
Under 18 U.S.C. 1968, if the Attorney General thinks someone might have documentary evidence necessary to investigate illegal business activities (racketeering), he can issue a civil investigative demand (CID) in writing to provide that documentation before any legal case starts. This request must:
- Explain what illegal activity is being investigated and what laws apply.
- Clearly describe the documents needed.
- Say when the documents must be given (immediately or by a specific date).
- Say who should receive these documents.
The request can't:
• Ask for something unreasonable or that wouldn't be allowed in a court-ordered request during a grand jury investigation.
• Ask for legally protected documents that wouldn't have to be given in a court-ordered request during a grand jury investigation.
18 U.S.C. 1968 also contains provisions for how the government handles this information. Some important points:
- Any information delivered in response to a CID is confidential. It can only be shown to others with the permission of the person who gave the documentation.
- The Attorney General must appoint a custodian responsible for managing and protecting the documents.
- The documentation must be returned if no complaint is filed or after the case ends.
- The person who provided the information has the right to demand the documentation back if a complaint is not filed in a reasonable amount of time.
What Are the Consequences of Non-Compliance?
If you receive a CID about a RICO investigation, you can file a petition to modify or set aside the demand if it is unreasonable or overly broad. You typically have 20 days (or up to the deadline on the CID) to do so--otherwise, you must produce the requested material by the specified time.
Failure to respond or comply with a CID can result in contempt of court charges, penalties, or even an unfavorable inference drawn against you in subsequent litigation.
What to Do If You're Served with a CID?
- Engage Legal Counsel: As soon as you receive a CID, seek legal counsel experienced in dealing with such matters. This is not only to ensure compliance with the CID but also to ensure the scope of the CID does not violate your rights under the law.
- Review the CID: Understand the scope and nature of the information sought.
- Preserve Relevant Documents: Implement a document preservation plan to avoid the destruction of evidence, which could lead to penalties.
- Prepare Response: With your legal counsel, prepare a thorough response to the CID.
- Negotiate Scope: If the CID is overly broad, negotiate its scope with the issuing agency or file a petition to have the court rescind the demand.
- Comply with the CID: Ensure timely submission of all requested materials to avoid penalties.
If you need more information, contact our law firm. We represent clients throughout the United States on federal criminal matters. Eisner Gorin LLP has offices in Los Angeles, California.