It is unlawful for anyone employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign
to conduct or participate, directly or indirectly, in the conduct of such
enterprise's affairs through a pattern of racketeering activity or
unlawful debt. 18 U.S.C.A. § 1962(c) (West 1984). The Racketeer
and Corrupt Organization Act (RICO) was passed by Congress with the declared
purpose of seeking to eradicate organized crime in the United States.
Russello v. United States, 464 U.S. 16, 26-27, 104 S. Ct. 296,
78 L. Ed. 2d 17 (1983); United States v. Turkette, 452 U.S. 576, 589,
S. Ct. 2524, 2532, 69 L. Ed. 2d 246 (1981). A violation of Section 1962(c),
requires (1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,
105 S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985).|
A more expansive view holds that in order to be found guilty of
the RICO statute, the government must prove beyond a reasonable doubt: (1)
an enterprise existed; (2) that the enterprise affected interstate commerce;
that the defendant was associated with or employed by the enterprise; (4)
the defendant engaged in a pattern of racketeering activity; and (5) that
defendant conducted or participated in the conduct of the enterprise through
pattern of racketeering activity through the commission of at least two acts
racketeering activity as set forth in the indictment. United States v.
Phillips, 664 F. 2d 971, 1011 (5th Cir. Unit B Dec. 1981), cert.
denied, 457 U.S. 1136, 102 S. Ct. 1265, 73 L. Ed. 2d 1354 (1982).
An "enterprise" is defined as including any individual, partnership,
corporation, association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity. 18 U.S.C.A.
1961(4) (West 1984). Many courts have noted that Congress mandated a
construction of the RICO statute in order to effectuate its remedial
holding that the term "enterprise" has an expansive statutory definition.
United States v. Delano, 825 F. Supp. 534, 538-39 (W.D.N.Y. 1993),
aff'd in part, rev'd in part, 55 F. 3d 720 (2d Cir. 1995), cases
"Pattern of racketeering activity" requires at least two acts of
racketeering activity committed within ten years of each other. 18 U.S.C.A.
§ 1961(5) (West 1984). Congress intended a fairly flexible concept of
pattern in mind. H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S.
239, 109 S. Ct. 2893, 2900, 106 L. Ed. 2d 195 (1989). The government must
that the racketeering predicates are related, and that they amount to or
threat of continued criminal activity. Id. Racketeering predicates
related if they have the same or similar purposes, results, participants,
victims, or methods of commission, or otherwise are interrelated by
distinguishing characteristics and are not isolated events. Id. at
109 S. Ct. at 2901; Ticor Title Ins. Co. v. Florida, 937 F. 2d 447,
(9th Cir. 1991). Furthermore, the degree in which these factors establish a
pattern may depend on the degree of proximity, or any similarities in goals
methodology, or the number of repetitions. United States v.
865 F. 2d 1370, 1382 (2d Cir.), cert. denied, 493 U.S. 811, 110 S.
107 L. Ed. 2d 24 (1989).
Continuity refers either to a closed period of repeated conduct, or to
conduct that by its nature projects into the future with a threat of
H.J., Inc., 492 U.S. at 241-42, 109 S. Ct. at 2902. A party alleging
RICO violation may demonstrate continuity over a closed period by proving a
series of related predicates extending over a substantial period of time.
Id. Predicate acts extending over a few weeks or months and
no future criminal conduct do not satisfy this requirement as Congress was
concerned with RICO in long-term criminal conduct. Id.
As to the continuity requirement, the government may show that the
racketeering acts found to have been committed pose a threat of continued
racketeering activity by proving: (1) that the acts are part of a long-term
association that exists for criminal purposes, or (2) that they are a
of conducting the defendant's ongoing legitimate business, or (3) that they
a regular way of conducting or participating in an ongoing and legitimate
When a RICO action is brought before continuity can be established,
liability depends on whether the threat of continuity is demonstrated.
Id. However, Judge Scalia wrote in his concurring opinion that it
be absurd to say that "at least a few months of racketeering activity. . .is
generally for free, as far as RICO is concerned." Id. at 254, 109 S.
at 2908. Therefore, if the predicate acts involve a distinct threat of
racketeering activity, either implicit or explicit, a RICO pattern is
established. Id. at 242, 109 S. Ct. at 2902.
The RICO statute expressly states that it is unlawful for any person to
conspire to violate any of the subsections of 18 U.S.C.A. § 1962. The
government need not prove that the defendant agreed with every other
knew all of the other conspirators, or had full knowledge of all the details
the conspiracy. Delano, 825 F. Supp. at 542. All that must be shown
(1) that the defendant agreed to commit the substantive racketeering offense
through agreeing to participate in two racketeering acts; (2) that he knew
general status of the conspiracy; and (3) that he knew the conspiracy
beyond his individual role. United States v. Rastelli, 870 F. 2d
(2d Cir.), cert. denied, 493 U.S. 982, 110 S. Ct. 515, 107 L. Ed. 2d