September 6, 2012
And although RICO provides primarily criminal sanctions for such racketeering activities, it also provides a civil cause of action to victims of such activities.
This civil cause of action has since been employed against other organizations – most famously, a pro-life organization – that are not primarily criminal in nature.
Today, an unexpected organization – an international adoption agency – is the target of such a suit.
The organization, Americans for African Adoption, Inc (AFAA), is being sued by two prospective adoptive parents, who claim that AFAA defrauded them out of over $10,000.
How, exactly, did this happen?
The plaintiffs, James and Carey Heslep, approached AFAA in the summer of 2007 after researching into that and several other agencies.
The Hesleps were interested in adopting a Ugandan child.
After speaking with AFAA’s President, Cheryl Carter-Shotts, they entered into an agreement with AFAA on August 6, 2007 under which AFAA would provide adoption services to the Hesleps in both the U.S. and Uganda.
AFAA named Joseph Kagimu, a Ugandan citizen, as an AFAA employee who would coordinate the adoption in Uganda.
Over the next nine months, the Hesleps prepared extensively for the adoption, and in May of 2008, AFAA informed them of an orphaned boy named “Sam” who was currently living in a Ugandan orphanage operated by AFAA and approved for the family’s adoption.
Over the next 15 months, the Hesleps paid $200 a month to AFAA for Sam’s living expenses, and, in addition, started developing a personal relationship with Sam through video correspondence and letters.
In September of 2009, Carter-Shotts informed the Hesleps that they needed to travel to Uganda to appear before the nation’s High Court to be named Sam’s legal guardians, which they did.
However, when the Hesleps applied for a visa for Sam from the U.S. Embassy in Uganda, the embassy informed them that it was investigating irregularities in Sam’s documents, specifically his parents’ death certificates.
After two weeks of investigation, during which time Carey Heslep stayed in Uganda and cared for Sam, the embassy reported that Kagimu had forged the death certificates of Sam’s parents, Sam’s parents are actually alive, and Kagimu is now imprisoned in Uganda on charges of fraud, forgery, and embezzlement.
Carey returned to the U.S. without Sam, and in February of 2010, the U.S. Customs and Immigration Service notified the Hesleps that AFAA held no legal authority in Uganda to assist in the adoption, and that “AFAA, knowingly and admittedly, provided false death certificates for the birth parents of [Sam].”
Naturally, the Hesleps sued, citing, among other claims, RICO’s civil cause of action.
AFAA moved to dismiss, claiming that the Hesleps failed to state a claim under RICO.
RICO is a very complex statute, but it essentially requires the existence of an “enterprise” distinct from the individual defendants, the “predicate acts” necessary to constitute racketeering activity, and a pattern of racketeering activity.
The court just ruled on the motion in the Hesleps’ favor, and rightfully so.
Although the corporation cannot constitute a distinct “enterprise” from the individual defendants (here, the corporation and its officers and employees), the court cited to authority that holds otherwise when the officers and employees “conduct the corporation’s affairs in a RICO-forbidden way.”
“Predicate acts” is a term of art that basically refers to any crime separate from the racketeering activity.
Since the Hesleps alleged AFAA as having engaged in “at least fifteen instances of mail fraud and wire fraud,” the second prong is met.
Lastly, for the “pattern of activity” requirement, the Hesleps alleged that “at least five other prospective adoptive families in a similar scheme” were defrauded by AFAA.
Just when you thought it couldn’t get any worse, right?
If you’re outraged by what happened, you’re not alone: the Hesleps’ claim of intentional infliction of emotional distress survived the same motion to dismiss because the court found that the plaintiffs’ allegations regarding the defendants’ conduct are sufficiently outrageous.
Nevertheless, while this court ruling undoubtedly provides some comfort to the Hesleps, it probably won’t make up for the emotional rollercoaster they were forced to ride from 2007 through 2009.