Using the opinion in the Morrison case, most lower courts found that RICO does not apply to conduct that primarily takes place outside the United States. But an important decision in 2014 by the United State Court of Appeals for the Second Circuit in Manhattan found that some RICO claims can be pursued as long as the underlying crime used to establish the pattern of racketeering activity is one that reflects a desire in Congress to reach foreign violations. That court ruling is crucial in the FIFA corruption prosecution because the charges were filed in Brooklyn, which falls under the jurisdiction of that appellate court.

In European Community v. RJR Nabisco, the appeals court permitted a civil RICO claim against tobacco companies to proceed. That case related to a complex money laundering scheme involving the proceeds of illegal narcotics sold in Europe by Colombian and Russian criminal organizations that were used to purchase cigarettes.

The court said that “RICO applies extraterritorially if, and only if, liability or guilt could attach to extraterritorial conduct under the relevant RICO predicate.” This means that a crime like money laundering can be charged for conduct outside the United States if one part of the transaction went through a bank in this country. And, as an extension, RICO can then be used when that is the basis for proving the pattern of racketeering activity.

The decision in the European Community vs. RJR Nabisco case was quite contentious within the Federal Court of Appeals for the Second Circuit. In April, five active judges on the court dissented from the denial of a request for the full court to review the case, known as an en banc hearing. That is a rare step in this circuit, which on average grants about one such rehearing a year.

The dissenting judges argued that the decision extends RICO too far. They stated that that such claims sidestep the Supreme Court’s restrictive approach in the Morrison decision, which limits application of United States laws to foreign conduct. By including money laundering charges as one of the foundations for the pattern of racketeering activity related to the FIFA bribery, the Justice Department may apply RICO to conduct that does not have significant contacts with the United States.

The FIFA defendants are sure to challenge the case by arguing that the RICO statute should not be used to prosecute allegations of conduct that only took place abroad. The Justice Department will counter that the decision in the European Community vs. RJR Nabisco case allows it the leeway to use RICO for actions that might not otherwise be subject to prosecution in the United States. If the government can avoid having the charges dismissed, then this case could balloon into even more corruption charges against those inside and outside FIFA.

The money laundering statute is a powerful tool because any transaction through a bank in the United States involving the proceeds of a number of crimes, including broad provisions like the mail and wire fraud laws, can be the basis for bringing a charge. If RICO can be added to a case involving multiple defendants to claim that they engaged in a pattern of misconduct, then the Justice Department will indeed have a very big stick to attack corruption almost anywhere.