Criminal Law and Procedure

The FIFA Prosecution & the Strategy Behind the Federal Criminal Indictment

By Robert J. Higdon Jr.

On May 27, 2015 the United States Department of Justice unsealed several charging documents involving the Federation Internationale de Football Association (“FIFA”).  These documents included four Bills of Information, each charging a single individual, and one Bill of Indictment charging 14 additional defendants.

While the Justice Department has brought a number of specific charges against the 18 different people, at the heart of the prosecution is the Government’s Racketeering theory.  The Racketeer Influenced and Corrupt Organizations (RICO) Act is a 1970s era effort to attack and eliminate the plague of organized crime. During the heyday of the Mafia it was difficult to prosecute individual mobsters.  Picking them off one by one was time-consuming, laborious and often failed to get to the crux of the organized and pervasive nature of their criminal activity.  It was often difficult to reveal the full scope of the criminal activity in the prosecution of one lone member of the mob.  Often evidence of the context and scope of the organization’s activities were “irrelevant” to the charges at hand; and by keeping their distance from the dirty work of committing crimes, the bosses were hard to touch.  RICO allowed prosecutors to attack the entire criminal effort by linking the criminal activity of individual mobsters to reveal the broader criminal nature of the organization and hold bosses accountable for the criminal acts committed by their underlings in furtherance of the criminal conspiracy.  This approach broadened the scope of evidence admissible against any particular defendant.  If the facts tended to reveal the breadth of the criminal organization, it would be admitted at trial.

And RICO was successful.  Organized crime as we knew it back in the 70s was seriously crippled and in many cases put out of business as the result of these prosecutions.  And with success comes attention and imitation.  Following on the heels of the successful mob prosecutions, federal prosecutors over the last 30 or 40 years have used the RICO statutes to attack pervasive criminal activity in a range of unanticipated places.  From labor unions to police departments, wherever prosecutors found corrupt organizations, or organizations which had been victimized and overtaken by organized criminal activity, they utilized the RICO statutes as a tool to eliminate the criminal conduct.  And now comes the FIFA prosecution.

The FIFA indictment lays out a highly organized world-wide organization dedicated to the regulation and promotion of soccer.  From the World Cup to regional and local soccer clubs, FIFA attempts to promote and exploit the interest in and the profit derived from soccer.  The indictment alleges, in effect, that this huge organization has been victimized by these 18 individuals, and others, through manipulation, bribery, vote buying and a range of other criminal behavior.  These individuals, so the indictment alleges, essentially violated their duties to FIFA to conduct ITS business honestly, honorably and without any regard for their personal gain.  They undermined the very nature and basic functioning of FIFA in order to achieve their own criminal goals.

What can we expect now?

  1. A rush to the courthouse:  The Justice Department’s release of four Bills of Information along with the Indictment could signal cooperation by the individuals charged in the Informations.  Under the United States Constitution an individual may only face felony charges upon indictment by a grand jury.  A Bill of Information is a charging instrument brought forward on the signature of the United States Attorney alone and it often signals a waiver of that Constitutional right accompanied by a deal to plead guilty and cooperate with investigators.  So, here we may have four individuals who have already cut a deal with prosecutors to cooperate against the 14 charged in the Bill of Indictment.  These four may have beaten the pack to the courthouse door.

    In recent days we have also seen some of those charged in the Indictment publicly pointing fingers at others in response to this charge.  They are trying to shift the blame to others in one of the oldest games in the book. But it also signals a real desire to get out from under the serious potential penalties which may be coming.

    Federal RICO indictments carry substantial possible penalties.  Frequently the only way around these penalties is to cooperate with prosecutors and seek a recommendation for a reduced sentence from them.  Prosecutors who have already identified at least 25 unnamed coconspirators (according to the indictment itself), and who are clearly looking to see if the corruption at FIFA goes any higher, will be looking to make deals with potential witnesses.
  2. More charges:  And cooperation means the potential for more charges.  Federal prosecutors don’t reward cooperation unless the cooperator can help move the investigation forward in some way.  And that means they want to know who else was involved.  Does the criminal activity – the conspiracy – go higher?  Is it broader?  Who else does it involve?  And the value of the cooperation turns on a cooperating defendant’s ability to add to the Government’s knowledge of the criminal activity and its ability to do something about it.

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