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Boyle v. United States - Brief (Merits)

Docket number: 
No. 07-1309
Supreme Court Term: 
2008 Term
Court Level: 
Supreme Court

No. 07-1309


In the Supreme Court of the United States






Solicitor General
Counsel of Record
Acting Assistant Attorney
Deputy Solicitor General
Assistant to the Solicitor
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


Whether, in order to establish the existence of an "enterprise" within the meaning of the Racketeer Influ enced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq., the government must prove the existence of an entity with an ascertainable structure apart from the pattern of racketeering activity in which its members engage.

In the Supreme Court of the United States

No. 07-1309







The opinion of the court of appeals (Pet. App. 1a-4a) is not published in the Federal Reporter but is available at 283 Fed. Appx. 825.


The judgment of the court of appeals was entered on November 19, 2007. On February 6, 2008, Justice Ginsburg extended the time within which to file a peti tion for a writ of certiorari to and including April 17, 2008, and the petition was filed on April 15, 2008. The petition for a writ of certiorari was granted on October 1, 2008. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).


Following a jury trial in the United States District Court for the Eastern District of New York, petitioner was convicted of racketeering, in violation of 18 U.S.C. 1962(c); conspiracy to commit racketeering, in violation of 18 U.S.C. 1962(d); conspiracy to commit bank bur glary, in violation of 18 U.S.C. 371; and eight counts of bank burglary or attempted bank burglary, in violation of 18 U.S.C. 2113(a). He was sentenced to 151 months of imprisonment. The court of appeals affirmed his convic tion, but vacated his sentence and remanded for resen tencing. Pet. App. 1a-4a.

1. Petitioner was a member of a group of individuals who engaged in a series of organized, multi-jurisdic tional bank thefts over ten years, using stealth and force to rob financial institutions in numerous locations in cluding, among others, New York City, Long Island, up state New York, New Jersey, Ohio, and Wisconsin. See, e.g., J.A. 51, 56; Tr. 282-283, 366, 382-383.

Each member of the group not only had to be capable of committing the crimes but also had to be trusted. J.A. 41; Tr. 211, 664-665. The group's hub was a "social club" in Brooklyn owned by one of their own, Tommy Dono. J.A. 58, 74-75. The group, which engaged in criminal acts from 1991 through 1999, maintained a core of members throughout its existence, while recruiting new associates as needed when members were incarcer ated or moved away. J.A. 51, 88-90; Tr. 663-664, 817.

a. The group's bank-theft operations primarily tar geted bank night-deposit boxes. Salvatore "Fat Sal" Mangiavillano first originated the scheme of stealing from such locations, Tr. 41, 744, and he instructed the other members of the group how to carry out the thefts. J.A. 88-89; Tr. 211-212. Those thefts followed a similar pattern. After scouting for banks likely to have vulnera ble and cash-rich night-deposit boxes, J.A. 34, 55-56; Tr. 305, 317-318, 339, 434, 437, typically located in retail areas, like shopping malls, J.A. 55; Tr. 343, 366-373, 439- 441, the group would normally execute robberies in the early morning hours at the beginning of the week after cash deposits had accumulated over the weekend. J.A. 32, 34; Tr. 372-373.

Several members of the group participated in each theft. One associate would assume the role of "orga nizer" and assemble the participants for a theft or series of thefts. J.A. 72-78. Before Mangiavillano's imprison ment for bank burglary in 1996, he ordinarily assumed that role. J.A. 90-92; see Tr. 828-829. The participating members would meet to plan their operations in ad vance. J.A. 75-76, 83-84, 90-91. After the planning was complete, the members would assemble the tools needed to execute the plan, Tr. 666, including crowbars, ham mers, screwdrivers, ratchet sets, flashlights, chains, and fishing gaffs, as well as walkie-talkies and police scan ners. J.A. 33, 38, 60, 62-63, 66-67; Tr. 339, 349-350, 383.

Each member was assigned to fill a particular role in executing each plan. J.A. 32; Tr. 665. Some acted as lookouts, either in a car or on foot. J.A. 32, 36, 38, 61, 67; Tr. 359-360. The lookouts utilized scanners to moni tor police radio frequencies and walkie-talkies to com municate with other group members and warn them if police were in the vicinity. J.A. 32-33, 38, 61-62, 65-68; Tr. 782. Once the lookouts had assumed their positions, two to three members of the group would drive to the bank and attempt to detach the night-deposit box by removing the screws from its face plate, prying it off the wall with a crowbar, or attaching a chain from a car to the box and pulling the box off the wall. J.A. 32-33; Tr. 299, 317-318, 334, 339, 359-360, 443-448. Once the asso ciates had created a hole in the bank's wall by detaching the box, they would remove the deposit bags inside the bank by hand or with a fishing gaff or similar device. J.A. 37, 63; Tr. 322. The group then would split the pro ceeds among the participants in the burglary-some times evenly and sometimes with those who removed the box receiving a larger percentage in order to compen sate them for the additional risk that they assumed in the operation. J.A. 64, 79; Tr. 455, 528-529. Many of the night-deposit-box thefts were quite successful, with the group netting anywhere from thousands to hundreds of thousands of dollars in each bank theft. J.A. 36-38; Tr. 282-283, 300, 305-306, 379-380, 390, 455; see J.A. 53; Tr. 474, 819.

The group also attempted bank-vault burglaries and bank robberies, though these were far less frequent than the night-deposit-box thefts. Before executing a bank-vault operation, group members conducted surveil lance of the targeted bank and gathered the requisite tools such as special cutting tools, industrial-strength drills, blow torches, gas tanks, water hoses, and walkie- talkies. Tr. 769-771, 774-777. The bank-vault burglaries occurred in the early morning hours when the banks were closed. On the day of a burglary, approximately five or six members of the group would drive to the bank. See ibid. As with the night-deposit-box opera tions, certain members would act as lookouts, using walkie-talkies. Tr. 771, 777. Others would try to gain entry into the bank (often by breaking through a bank wall), and, then, from inside the bank, they would at tempt to drill directly into the bank's vault. Tr. 771-772, 777-778.

b. From 1991 to 1994, the core of the group, which committed more than 30 night-deposit-box thefts, con sisted of Mangiavillano, Tommy Dono, Beck Fiseku, Chris Ludwigsen, William Galloway, and Gerard Bellafiore (until Bellafiore was imprisoned for bank bur glary). J.A. 35, 52-53, 88-90; Tr. 45-47, 299-302; cf. J.A. 35 (estimating 25-30 burglaries in 1991). Petitioner was initially asked to join one of the group's bank vault rob beries because the group "needed extra help" on this operation and Mangiavillano knew petitioner to be a reliable car thief from prior criminal collaborations. Tr. 765-768. Petitioner accepted and, by 1994, petitioner had participated in at least two attempted bank-vault burglaries with Mangiavillano, Dono, Fiseku, and oth ers, J.A. 86; Tr. 766-779, as well as an attempted night- deposit-box theft with Mangiavillano, Dono, and others, Tr. 779-782; J.A. 87-88.

In 1994, the group briefly expanded their operations by planning and executing a robbery of the National Westminister Bank (NatWest) in Brooklyn. Mangiavil lano, Fiseku, Ludwigsen, and petitioner were equal partners in the venture. Tr. 85, 92, 167-170. The partic ipants played the various roles of driver, lookout, and robbers, and they obtained approximately $900,000 from the bank heist, which they divided evenly amongst them selves. Ibid.; Tr. 807-808; see Tr. 86-92, 222-223, 233, 417-432, 790-798, 801-802, 808-809. Approximately six months later, Ludwigsen moved to Florida. Tr. 62-63. Other group members attempted to duplicate the Nat West success at two other banks, but they were unsuc cessful. Tr. 812-814.1

Around 1996, petitioner, Mangiavillano, Dono, and another attempted a night-deposit-box theft on Long Island. Tr. 817-818. Mangiavillano was imprisoned for bank burglary later that year and was subsequently de ported. Tr. 828-829. In 1997, petitioner, Dono, John Micali, and two others were arrested for possessing bur glar's tools, Tr. 693-715, and Bellafiore returned to prison for committing additional bank thefts, Tr. 302. From 1998 to 1999, the group, which now, in addition to petitioner, Dono, Fiseku, and Bellafiore, included Micali and Ronald Petrino as core members, committed or at tempted to commit numerous night-deposit-box thefts in New York, New Jersey, Ohio, and Wisconsin. Tr. 310- 318, 320-325, 330-384, 396-408, 433-438, 738-742, 1140- 1144; Gov. C.A. Br. 14-19.

2. a. On September 9, 2003, a federal grand jury indicted petitioner and other members of the group. Af ter every defendant except petitioner, Dono, and Petrino entered guilty pleas, the grand jury returned a super seding indictment for the remaining defendants. Super seding Indictment (Jan. 6, 2005).2 That indictment charged petitioner with participating in the conduct of the affairs of an enterprise through a pattern of racke teering activity, in violation of 18 U.S.C. 1962(c); con spiring to commit that offense, in violation of 18 U.S.C. 1962(d); bank burglary conspiracy, in violation of 18 U.S.C. 371; and nine counts of bank burglary and at tempted bank burglary, in violation of 18 U.S.C. 2113(a). J.A. 14-25 (redacted superseding indictment).

Section 1962(c), which Congress enacted as part of the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq., provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect interstate or foreign com merce, to conduct or participate, directly or indi rectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collec tion of unlawful debt.

18 U.S.C. 1962(c).

RICO also contains statutory definitions for several terms, including "pattern of racketeering activity" and "enterprise." 18 U.S.C. 1961. A "pattern of racketeer ing activity" requires at least two acts of "racketeering activity," which the Act defines to mean any of the predi cate offenses specifically enumerated in Section 1961(1). 18 U.S.C. 1961(5). In addition, the predicate offenses must be "related" and must "amount to or pose a threat of continued criminal activity" in order to constitute a "pattern" of racketeering activity. H.J. Inc. v. North western Bell Tel. Co., 492 U.S. 229, 239 (1989); see id. at 240-243. The indictment alleged that petitioner partici pated in the conduct of the affairs of an enterprise though a pattern of racketeering activity that consisted of, inter alia, predicate acts of interstate transportation of stolen night-deposit-box funds. J.A. 15-18.

The indictment further alleged that the "enterprise" with which petitioner was associated was "a group of individuals associated in fact" who "functioned as a con tinuing unit for [the] common purpose" of "generating money" through "criminal activity, including bank rob beries, bank burglaries and interstate transportation of stolen money." J.A. 13-14.

RICO provides that the term "'enterprise' includes 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. 1961(4). In United States v. Turkette, 452 U.S. 576 (1981), this Court explained that "an enterprise includes any union or group of individuals associated in fact" and concluded that the term includes "a group of persons associated together for a common purpose of engaging in a course of conduct" whether that conduct be lawful or criminal. Id. at 580, 583. The Court further ruled that the existence of such an enterprise "is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." Id. at 583.

b. Tracking the language of RICO and Turkette, the district court instructed the jury that "the term 'enter prise' includes any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal en tity." J.A. 111. An enterprise, the court explained, may therefore consist of "an informal association of individu als" who "'associate' together for a purpose of engaging in a course of conduct" even if the association is not "a form[al] business entity such as a corporation" and "is not recognized as a legal entity." Ibid.

The district court stated that "you may find an enter prise where an association of individuals, without struc tural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts. Such an association of persons may be established by evidence showing an ongoing organization, formal or informal, and * * * by evidence that the people making up the association func tioned as a continuing unit." J.A. 112. "Common sense suggests that the existence of an association-in-fact is oftentimes more readily proven by what is does, rather than by abstract analysis of its structure." J.A. 111-112.

Finally, the court instructed the jury that, "in order to establish the existence of such an enterprise, the gov ernment must prove that: (1) there is an ongoing orga nization with some sort of framework, formal or infor mal, for carrying out its objectives; and (2) the various members and associates of the association function as a continuing unit to achieve a common purpose." J.A. 112. With respect to the "organization" prong of this test, the court explained that "it is not necessary that the enter prise have any particular or formal structure, but it must have sufficient organization that its members func tioned and operated in a coordinated manner in order to carry out the alleged common purpose or purposes of the enterprise." J.A. 112-113.

Petitioner objected, inter alia, to the court's instruc tion that an enterprise could be established "without structural hierarchy" and that the enterprise's organiza tion need not "have any particular or formal structure." J.A. 103-104. Petitioner requested that the district court instead instruct the jury that the government must prove beyond a reasonable doubt that the enter prise "had an ongoing organization, a core membership that functioned as a continuing unit, and an ascertain able structural hierarchy distinct from the charged predicate acts." J.A. 95; C.A. App. A683. The district court declined to incorporate petitioner's proposed lan guage. See J.A. 111-113.

The jury acquitted petitioner on one bank burglary count (Count Four) but found petitioner guilty on the remaining 11 counts. J.A. 7. The district court sen tenced petitioner to 151 months of imprisonment. J.A. 10.

4. The court of appeals affirmed petitioner's convic tions but vacated his sentence. Pet. App. 1a-4a.

Petitioner argued on appeal that the district court erred, inter alia, in declining to instruct the jury that the government must establish that an association-in- fact enterprise under RICO must have "an ascertainable structural hierarchy distinct from the charged predicate acts." Pet. C.A. Br. 19-20 (emphasis omitted). The court of appeals did not specifically discuss that issue, stating instead that it had considered petitioner's "challenges to the judgment of conviction" and found them "without merit." Pet. App. 3a. The court of appeals vacated peti tioner's sentence for reasons not pertinent here, and it remanded for resentencing. Id. at 3a-4a.

5. On remand, the district court credited petitioner for 33 months of imprisonment that petitioner served on a New York state burglary conviction and otherwise reimposed the same sentence. Amended Judgment (Apr. 18, 2008). Petitioner's appeal from that judgment is currently pending before the court of appeals.


The court of appeals correctly rejected petitioner's contention (Br. 19-20) that a group of individuals associ ated in fact to conduct criminal activity must have some "particular or formal structure" apart from the pattern of racketeering activity in which its members engage in order to constitute an "enterprise" under RICO. Cf. J.A. 103-104. RICO's text and structure demonstrate that Congress defined "enterprise" broadly to include a wide range of both formal and informal associative groups. When the common purpose of such a group is to pursue criminal acts, a criminal "enterprise" can exist even if the group does not display an "ascertainable structure beyond that inherent in the commission" of those crimes (Pet. i). The evidence in this case amply il lustrates such an enterprise.

Congress defined "enterprise" broadly to "include[]" "any" legal entity (including "any individual, partner ship, corporation, [or] association") and "any union or group of individuals associated in fact" that lacks a rec ognized legal existence. 18 U.S.C. 1961(4). That defini tion embraces a "group of individuals associated in fact" whose members are "associated together a common pur pose of engaging in a [criminal] course of conduct" and who form a "formal or informal" organization whose members "function as a continuing unit." United States v. Turkette, 452 U.S. 576, 583 (1981).

Nothing in RICO's text suggests that a criminal association-in-fact must possess an ascertainable struc ture beyond that inherent in its members' coordinated criminal activity. Indeed, the essence of such an associa tion is the common purpose that binds its members and prompts them to function as a unit over time to commit crimes. Petitioner's extra-textual restriction on RICO's "enterprise" concept is inconsistent with Congress's use of expansive language in Section 1961(4), which imposes "no restriction upon the associations embraced by [that] definition." Turkette, 452 U.S. at 580. As this Court has recognized, RICO targets criminal associations that "extend well beyond" those traditionally understood as "organized crime" in order to apply to "a wide range of criminal activity, taking many different forms" and in volving "a broad array of perpetrators operating in many different ways." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 243, 248-249 (1989).

An association-in-fact may be composed of as few as two members. It would therefore be anomalous for Con gress to have intended that such a group must reflect the formalistic structure suggested by petitioner. Two- person enterprises do not require decision-making pro tocols, command structure, or fixed roles to operate ef fectively to pursue a common objective. Moreover, Con gress expressly provided that "any individual" may con stitute an enterprise. If an individual qualifies as an enterprise under RICO, there is no sound reason to con clude that an "ascertainable structure" is essential to RICO's enterprise concept. Indeed, elsewhere in the act that enacted RICO, Congress explicitly addressed the structure of an enterprise needed to trigger criminal liability, see 18 U.S.C. 1955(b)(1)(ii), but included no analogous language in RICO to limit the scope of its en terprise definition. There is no reason to disregard that presumably conscious decision in drafting RICO by im porting the kind of amorphous "ascertainable structure" requirement suggested by petitioner.

Petitioner is incorrect in his suggestion that an as certainable structure requirement is needed to avoid merging the "enterprise" concept into a RICO's "pat tern of racketeering activity." An enterprise may exist absent such a pattern where, for instance, a criminal group forms to pursue non-racketeering activities. Likewise, an individual can commit a pattern of racke teering activity with a changing pool of confederates who might not form an association-in-fact. And, even when an individual participates in the conduct of the affairs of an enterprise by engaging in a pattern of rack eteering, that pattern standing alone may not demon strate the existence of the enterprise. Of course, when two or more persons associate together to coordinate their actions to commit jointly a series of related racke teering crimes that either extend over a substantial pe riod of time or threaten such continued activity, their coordinated activities can reflect both the existence of an "enterprise" and a "pattern" of racketeering activity. Turkette recognized that the evidence of those elements may "coalesce" in particular cases without merging those distinct elements into one. 452 U.S. at 583.

Petitioner's limited textual analysis does not support his conclusion that an "enterprise" must have an "ascer tainable structure" beyond that reflected in its activities. The phrase "group of individuals associated in fact al though not a legal entity" does not in itself suggest any structural requirement. Likewise, the antecedent types of enterprises in Section 1961(4) do not imply that the "group" must be structured. Finally, the fact that RICO's title includes the word "organizations" provides no basis for restricting the broad text employed by Con gress to define "enterprise." RICO's purpose and legis lative history similarly focus on the need to combat "or ganized crime," but this Court has concluded that Con gress, for cogent reasons, enacted a much broader stat ute that extended well beyond organized crime to cap ture a wide range of criminal activity taking many dif ferent forms. RICO's broad definition of "enterprise," which includes "any" "group of individuals associated in fact," accordingly imposes no structural requirement beyond that which is inherent in a group's ongoing and coordinated conduct of racketeering activity.

Petitioner's reliance on the rule of lenity and princi ples of constitutional avoidance are misplaced because the statute is broad, not ambiguous. And rules to avoid asserted ambiguity or constitutional concerns cannot justify adding a far more ambiguous extra-textual gloss of "ascertainable structure," which petitioner himself is incapable of defining with any precision.

Applying the correct test, the jury was correctly in structed and the evidence sufficed to support the finding of an enterprise. Petitioner and his confederates planned a series of bank heists, played various roles in carrying out their modus operandi, made decisions col lectively, and functioned as a coordinated unit over a period of several years. Nothing more was needed to establish an enterprise for purposes of RICO.



Congress has made it unlawful under RICO for any person "associated with any enterprise engaged in, or the activities of which affect, interstate or foreign com merce" to "conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pat tern of racketeering activity." 18 U.S.C. 1962(c). RICO's definitional section provides that, as used in the Act, the term "'enterprise' includes any individual, part nership, 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. 1961(4). Con trary to petitioner's contention, an enterprise may be established, as this Court stated in United States v. Turkette, 452 U.S. 576, 583 (1981), based on proof of an association with a "common purpose" to engage in an activity, in which the associates "function as a continuing unit." No ascertainable structure need exist apart from and in addition to such proof. Accordingly, the jury in structions in this case were correct in stating that nei ther "structural hierarchy" nor a "particular or formal structure" is required, J.A. 112, and the evidence on this point overwhelmingly supports petitioner's convictions.


The language and structure of RICO demonstrate that an "enterprise" includes "a group of persons associ ated together for a common purpose of engaging in a course of [criminal] conduct" who "function as a continu ing unit." Turkette, 452 U.S. at 583. The "ascertainable structure" requirement that petitioner would impose has no foundation in RICO's text or logic and is inconsistent with the decisions of this Court repeatedly refusing to engraft such extra-textual limitations into RICO's delib erately expansive statutory provisions.

A. The Language And Structure Of RICO Demonstrate That An "Enterprise" Need Not Possesses An Independ ent Ascertainable Structure

1. RICO's definition of "enterprise" contains no "ascer tainable structure" qualification

For nearly three decades, this Court has concluded that RICO imposes "no restriction upon the associations embraced by the definition" of "enterprise" because "an enterprise includes any union or group of individuals associated in fact." Turkette, 452 U.S. at 580 (emphases added); accord National Org. for Women, Inc. v. Scheid ler, 510 U.S. 249, 260-261 (1994) (NOW) (construing "en terprise"). "[R]ead naturally, the word 'any' has an ex pansive meaning, that is, 'one or some indiscriminately of whatever kind,'" Ali v. Federal Bureau of Prisons, 128 S. Ct. 831, 835-836 (2008) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)), and Section 1961(4) em ploys the term not once but twice: first, to include "any * * * legal entity" within its definition of enterprise and, second, to include "any union or group of individu als associated in fact," 18 U.S.C. 1961(4), that lacks such a "legal existence." See Turkette, 452 U.S. at 582 & n.4.3

The phrase "group of individuals associated in fact," 18 U.S.C. 1961(4), demonstrates the breadth of RICO's "enterprise" concept. A "group" of individuals naturally is understood as encompassing "a number of individuals bound together by a community of interest, purpose, or function" and, thus, includes a collection of individuals "associated formally or informally for a common end." Webster's Third New International Dictionary 1004 (1993) (principal copyright 1961). The verb "associate," moreover, is commonly used to "signif[y] confederacy or union for a particular purpose, good or ill," such that an "association" of individuals logically is understood as "a collection of persons who have joined together for a cer tain object." Black's Law Dictionary 156 (rev. 4th ed. 1968). Under the commonly understood meanings of those terms, individuals may "associate" in a "group" re gardless whether the resulting entity has any particular ascertainable structure.

Consistent with that understanding of those terms, this Court in Turkette held that RICO's definition of "enterprise" encompasses "a group of persons associ ated together for a common purpose of engaging in a course of conduct" regardless whether that conduct is lawful or criminal. 452 U.S. at 583. The Court addition ally explained that the existence of such an enterprise "is proved by evidence of an ongoing organization, for mal or informal, and by evidence that the various associ ates function as a continuing unit." Ibid. That focus on the coordinated actions of the group's members (i.e., their functioning as a unit) and the recognition that an enterprise includes an informal organization illustrate that a criminal "enterprise" under RICO need not have any ascertainable structure beyond that implicit in its associates' pursuit of their common goal of engaging in a (criminal) course of conduct.

Indeed, Turkette explained that the proof used to establish a "series of criminal acts * * * of racketeer ing committed by the participants in the enterprise" and the proof needed to establish the existence of a RICO "enterprise" itself "may in particular cases coalesce." 452 U.S. at 583. Proof of a pattern of racketeering activ ity may not always establish an enterprise. Ibid.; see pp. 26-28, infra. But the fact that proof of those two elements may coalesce shows that Turkette, like the statutory text of Section 1961(4), does not contemplate that a RICO "enterprise" is limited by petitioners' extra-textual requirement for an "ascertainable struc ture" beyond that reflected in the coordinated conduct of the enterprise's affairs.

That conclusion comports with the reality of "infor mal" associations of individuals. A group of individuals may constitute an associative "organization"-i.e, be able to assemble and coordinate their activities to carry out common objectives over a period of time-without having any discernible management structure. As sug gested by the Court's use of the phrase "formal or infor mal" in Turkette, an association-in-fact enterprise may have a leader who runs its operations or it may operate by the informal consensus of its members; it may hold group meetings according to a schedule or it may con duct its business informally by telephone as the need arises; it may have an established headquarters or no tangible address; and each member may play a defined role in its operations or its members may alternate roles. The structural make-up of a group of individuals may be strong evidence of the existence of an enterprise. But, as the Court recognized in Turkette, the essence of an association-in-fact enterprise is not its formality or internal configuration, but its ability to pursue a com mon objective on an ongoing basis as a cohesive unit.4 Such an ability may be proved by a wide variety of direct or circumstantial evidence having nothing to do with a group's structure.5

While a "group" composed of a large number of indi viduals might be more likely to possess such structure in order to coordinate the efforts of its members, Section 1961(4) encompasses "any" associative "group," which, in the absence of a textual restriction, may be composed of as few as two members. Cf. Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 452 (1989) (discuss ing "group of two or more persons"). Congress could not have intended that such smaller association-in-fact enterprises must always include structural elements like those suggested by petitioner. Cf. Pet. Br. 33 (listing ascertainable decision-making "protocol," an identifiable chain of command, and "differentiated" roles to imple menting decisions as examples of a "measure of struc ture"). Two-person enterprises do not require such at tributes in order to operate effectively, and they would not necessarily be expected to display them. That con clusion is reinforced by the fact that Congress made it unlawful to participate in the conduct of the affairs of "any enterprise" through a pattern of racketeering ac tivity, 18 U.S.C. 1962(c), and defined "enterprise" to include "any individual," 18 U.S.C. 1961(4). An "individ ual" enterprise inherently cannot have indicia of struc ture. There is no sound reason why Congress would have provided that a RICO enterprise may consist of an individual, but not of a group of individuals who engage in acts with a common criminal purpose as a continuing unit, which like a single individual, lacks an ascertain able structure.

Petitioner's position is further undermined by the fact that Congress explicitly addressed the question of size and structure in the illegal gambling statute, 18 U.S.C. 1955, which it enacted with RICO as part of the Organized Crime Control Act of 1970 (OCCA), Pub. L. No. 91-452, 84 Stat. 922. The gambling statute makes it a crime to conduct an "illegal gambling business." 18 U.S.C. 1955(a). Unlike RICO, however, Section 1955 defines an "illegal gambling business" to mean a gam bling business that, among other things, "involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business." 18 U.S.C. 1955(b)(1)(ii); see also 21 U.S.C. 848(c) (defining size and managerial characteristics of a "continuing criminal en terprise").

Petitioner himself concedes (Br. 51 n.40) that Section 1955 demonstrates that "Congress knows how to impose an express structure requirement when it wants to." If Congress had intended to require a RICO enterprise to have an ascertainable structure, it presumably would have followed a similar course and addressed the subject directly.6 Yet, while Section 1961 contains extensive def initional provisions for the key terms in RICO, it offers no guidance whatever for defining petitioner's proffered concept of "ascertainable structure." The "absence of any reference to * * * [such structure]-much less any definition of the [term]-is strong evidence that Con gress did not intend to make * * * [an ascertainable structure] an element of a * * * [RICO] violation." United States v. Culbert, 435 U.S. 371, 373 (1978).

Petitioner's suggestion (Br. 51 n.40) that "Congress had to paint more broadly" in RICO because Section 1955 targets a much narrower scope of activity, even if accurate, fails to account for RICO's complete textual silence on the subject. In RICO contexts where textual support was similarly unavailable, this Court has "re peatedly refused to adopt narrowing constructions of RICO in order to make it conform to a preconceived no tion of what Congress intended to proscribe." Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131, 2145 (2008) (citing cases); see, e.g., NOW, 510 U.S. at 260-261 (refus ing to adopt economic-motive limitation for a RICO "en terprise" where "Congress has not, either in the defini tional section or in the operative language, required that an 'enterprise' in § 1962(c) have an economic motive"); Turkette, 452 U.S. at 580-581 (declining to "depart[] from and limit[]" the statutory definition of "enter- prise" to legitimate entities because the definition im poses "no restriction upon the associations embraced by [its terms]" and Congress could have, but did not, "nar row[] the sweep of the definition by inserting" text to that effect).

Petitioner's notion of an "ascertainable structure" requirement not only lacks textual foundation, it also reflects an indefinite concept that petitioner himself is unable to define. Petitioner offers several vague formu lations in his brief of an "ascertainable structure" re quirement. See, e.g., Br. 15 ("An identifiable structure requirement * * * contemplat[es] some ongoing direc tional apparatus, though not the reticulation of, say, a corporation or Mafia family."); Br. 29 (jury can some times "infer some independent organization from the nature, frequency and duration of the predicate acts," but, in other cases, "additional evidence of structure will be necessary"). He also offers examples of "[a] measure of structure," including "a protocol for taking decisions; a chain of command for communicating them; and/or differentiated role players to carry them out," which, he asserts "mak[es] the test clear and comprehensible." Br. 33. Those attempts to articulate petitioner's non- textual requirement amply illustrate that "structure" "is hardly a self-defining term" and will only compound con fusion. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 241 n.3 (1989). In contrast, in the district court, petitioner emphasized a requirement of "an ascer tainable structural hierarchy distinct from the charged predicate acts." J.A. 95 (emphasis added). Whatever clarity might be offered by a strict requirement of "structural hierarchy," petitioner no longer seems to espouse that limitation, advocating instead more expan sive descriptions of "structure" that find no support in RICO's text.

Engrafting petitioner's restrictive "structure" re quirement onto Section 1961(4) also would run contrary to this Court's long-standing admonition that "RICO is to be read broadly." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497 (1985) (Sedima). "RICO was an aggres sive initiative to supplement all remedies and develop new methods for fighting crime," id. at 498, and, while Congress intended the Act to be used to combat orga nized crime, "Congress for cogent reasons chose to en act a more general statute, one which, although it had organized crime as its focus, was not limited in applica tion to organized crime." H.J. Inc., 492 U.S. at 248; ac cord NOW, 510 U.S. at 260.

RICO's drafters thus "followed a 'pattern [of] utiliz ing terms and concepts of breadth,'" H.J. Inc., 492 U.S. at 237 (quoting Russello v. United States, 464 U.S. 16, 21 (1983)), and followed that practice in adopting the definition of "enterprise." Russello, 464 U.S. at 21; see NOW, 510 U.S. at 257 ("RICO broadly defines "enter prise."); Turkette, 452 U.S. at 580-581. The statute ac cordingly targets criminal associations that "extend well beyond[] those traditionally grouped under the phrase 'organized crime' " in order to apply to "a wide range of criminal activity, taking many different forms" and in volving "a broad array of perpetrators operating in many different ways." H.J. Inc., 492 U.S. at 243, 248- 249; see NOW, 510 U.S. at 262 ("The fact that RICO has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demon strates breadth.") (quoting Sedima, 473 U.S. at 499). Petitioner's extra-textual "ascertainable structure" re quirement is incompatible with Congress's conception of a RICO enterprise. In short, Congress itself imposed "no restriction upon the associations embraced by" RICO's definition of "enterprise," Turkette, 452 U.S. at 580, and it is not this Court's role to impose such a re striction for Congress.

2. A RICO "enterprise" and a "pattern of racketeering activity" are distinct concepts that do not merge

Notwithstanding the textual breadth of Section 1961(4), petitioner contends that a RICO enterprise must have "some sort of structure beyond that attending the pattern of racketeering activity * * * in which its participants engage" because, without that restriction, the term "enterprise" will merge into the "pattern" and be rendered "wholly 'superfluous.'" Br. 4, 10-11, 39-40. Petitioner is incorrect.

a. This Court in Turkette rejected a similar argu ment. Turkette explained that an enterprise is an "en tity," there, as here, a "group of persons associated to gether for a common purpose of engaging in a course of conduct." 452 U.S. at 583. Even when the enterprise and the related course of conduct are purely criminal, the Court concluded that the "entity" (the enterprise) is necessarily distinct from the "series of criminal acts" committed by its associates (the pattern). Ibid. As a formal matter, the "entity" and the "acts" of its mem bers can never merge: "The 'enterprise' * * * is an entity separate and apart from the pattern of activity." Ibid. Moreover, as Turkette recognized, neither concept is superfluous in practice because it is entirely conceiv able that a requisite "enterprise" or "pattern" will exist without the other. Ibid. ("[P]roof of one does not neces sarily establish the other.").

A criminal association-in-fact "enterprise" exists as an "entity" when a continuing unit of individuals associ ate in order to achieve an illegal end. Turkette, 452 U.S. at 583. The "enterprise may exist even if its member ship changes over time." United States v. Perholtz, 842 F.2d 343, 364 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988).7 A "pattern of racketeering activity," in turn, is present only if several criteria are met. The pattern must, first, involve a series of two or more predicate acts of "racketeering activity," 18 U.S.C. 1961(5), with only a discrete subset of all criminal offenses qualifying as such. See 18 U.S.C. 1961(1) (specifically enumerating the crimes qualifying as "racketeering activity"). In addition, multiple racketeering acts themselves do not constitute a "pattern" of racketeering activity unless those acts are both "related" to each other and "amount to or pose a threat of continued criminal activity." H.J. Inc., 492 U.S. at 239.

The fact a group of individuals may associate in fact and function as an ongoing unit to achieve a particular criminal end (thereby creating an "enterprise") thus will not give rise to a "pattern" of "racketeering activity" if those individuals commit offenses other than those spe cifically enumerated in Section 1961(1) or their offenses are either insufficiently related or insufficiently persis tent to threaten continuing racketeering activity. Con versely, a "pattern of racketeering activity" can exist in the absence of an association-in-fact "enterprise." Sup pose that an individual commits a series of similar bank robberies over several years, in each case using a differ ent cast of associates to carry out the roles of decoy, lookout, and getaway-car driver. The crimes may read ily form a "pattern," by exhibiting both continuity and relationship. But the shifting personnel, with only one common member for each crime, would not constitute an enterprise: the criminals would not form an organiza tion pursuing a common purpose and functioning as a continuing unit. Accordingly, proof establishing a "pat tern" of racketeering activity does not necessarily estab lish an "enterprise."8

b. Of course, if a group of individuals who join to gether formally or informally for the common purpose of engaging in a pattern of racketeering activity and, functioning as a criminal unit, actually achieve that end by jointly completing a pattern of racketeering, those individuals will have created an association-in-fact "en tity" through their actions. In addition, any group mem ber who "participates" in the conduct of such an entity's affairs "through a pattern of racketeering activity" will violate Section 1962(c) if the affairs of the enterprise affect interstate or foreign commerce. See 18 U.S.C. 1962(c). That result, however, simply reflects that the actions of the group as a whole and the criminal defen dant have established the "enterprise" and "pattern" elements of a Section 1962(c) offense. It may well be true that, when a multi-member association-in-fact ex ists to commit crimes and their crimes form a RICO "pattern," a jury could always infer the existence of an enterprise. But that result would not require manipula tion of the definition of enterprise to require some addi tional proof. As the Court recognized in Turkette, in addressing this very point, "[l]anguage in a statute is not rendered superfluous merely because in some contexts that language may not be pertinent." 452 U.S. at 583 n.5. The concept of "enterprise" plays a factually and legally distinct role from "pattern" in many contexts. If the evidence used to prove the two "coalesce" in certain cases, id. at 583, it is no cause for reading new require ments into RICO, as petitioner urges the Court to do here.9

The ability of RICO to reach groups of criminals who operate over time even without formal structure or rela tionships other than their criminal endeavors is critical to achieving RICO's goals. Cf., e.g., United States v. Elliott, 571 F.2d 880, 898 n.19 (5th Cir.) (noting that "the enterprise operated in a manner calculated to mini mize direct evidence of association"), cert. denied, 439 U.S. 953 (1978). This Court has recognized that "Con gress was concerned in RICO with long-term criminal conduct," and that that concern-together with the list of predicate racketeering offenses that Congress has specifically targeted-limits the scope of the statute through "RICO's key requirement of a pattern of racke teering." H.J. Inc., 492 U.S. at 236, 242 (emphasis add ed) (noting that RICO's expansive uses appear primarily to result from "the breadth of the predicate offenses" in Section 1961(1) and the "concept of 'pattern'") (quoting Sedima, 473 U.S. at 500); cf. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 154 (1987) (A "pattern of racketeering" lies at "the heart of any RICO" charge.). "Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy [the pattern] requirement" and lie beyond the reach of the Act. H.J. Inc., 492 U.S. at 242. But where, as here, a pattern of crimes is committed by a group of individuals dedicated to the commission of that activity and operating together to achieve it, RICO's purposes are fully engaged.

c. The government's evidence of a defendant's pat tern of racketeering activity may accordingly lead the jury to infer an "enterprise." Where the defendant's racketeering activities are performed jointly with the same core group of individuals and follow a sufficiently identifiable "pattern," a jury may infer that the group has joined as associates in fact for the very purpose of committing those crimes. In that sense, as Turkette recognizes, "the proof used to establish these separate elements may in particular cases coalesce." 452 U.S. at 583. A particular jury might not make that circumstan tial inference, however, in the absence of additional evi dence to conclude that an enterprise exists. Thus, the government will often produce direct or circumstantial evidence beyond a particular defendant's pattern of racketeering activity to establish the existence of an enterprise and link the defendant's pattern of racketeer ing to the enterprise.

That evidence, for instance, may address activities undertaken by other alleged group members and the relationship of those activities to the defendant's pattern of conduct; the degree of continuity of core participants in such activities; and other factors illustrating ongoing, purposeful, and coordinated conduct.10 Evidence of an "ascertainable structural hierarchy" (J.A. 95), which petitioner would have required the jury to find (J.A. 102), could add to the government's proof but "the exis tence of an association-in-fact is oftentimes more readily proven by "what it does * * * than by abstract analysis of its structure." United States v. Bagaric, 706 F.2d 42, 56 (2d Cir.), cert. denied, 464 U.S. 840, and 464 U.S. 917 (1983). Just as one may deduce the existence of a mari tal or other relationship from observing the related par ties interact, a jury may properly infer the existence of an ongoing criminal association-in-fact from the conduct of its membership.

Many factors that can prove an enterprise would also facilitate the racketeering activity, but those factors are neither identical to the racketeering acts themselves nor essential for the commission of those acts. Indeed, an enterprise's structural make-up would also presumably be designed to facilitate its criminal objectives. It is clear from Turkette's holding that an association-in-fact enterprise may be "wholly criminal," 452 U.S. at 583, that the government is not required to show that a crim inal enterprise has some structure unrelated to its crimi nal objectives in order to demonstrate that the existence of that enterprise. See Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir.) (en banc), cert. denied, 128 S. Ct. 464 (2007); United States v. Kragness, 830 F.2d 842, 857 (8th Cir. 1987); United States v. Riccobene, 709 F.2d 214, 223-224 (3d Cir.), cert. denied, 464 U.S. 849 (1983).

d. In support of his position that RICO requires that an enterprise have an ascertainable structure separate from the "pattern of racketeering activity," petitioner focuses (Br. 5, 10) on the Court's explanation in Turkette that "[t]he 'enterprise' * * * is an entity separate and apart from the pattern of activity in which it engages" and its "existence * * * at all times remains a separate element which must be proved by the government." 452 U.S. at 583. That passage "is merely a statement of the obvious: The enterprise and its activity are two sepa rate things. One is the enterprise. The other is its activ ity." Odom, 486 F.3d at 551. And, while Turkette makes clear that the existence of an enterprise is an element of a RICO offense that, like any element of any offense, must be proved by the government, it plainly "is not a statement that an associated-in-fact enterprise must have some kind of separate structure." Ibid.

Even the approaches adopted by the four courts of appeals that require that an association-in-fact enter prise have an existence separate from the predicate acts of racketeering of its members lend little support to pe titioner. Of those four, only the Eighth Circuit has stated that proof of an ascertainable structure is needed to establish that an enterprise exists separately from such acts. See, e.g., Asa-Brandt, Inc. v. ADM Investor Servs., Inc., 344 F.3d 738, 752 (8th Cir. 2003); United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.), cert. de nied, 459 U.S. 1040 (1982). The other three require proof of some ascertainable structure but do not impose the requirement as a means of showing that the enter prise has an existence separate from its members' rack eteering acts. Those courts instead conclude that sepa rateness is established by other factors. See, e.g., Uni ted States v. Console, 13 F.3d 641, 651-652 (3d Cir. 1993), cert. denied, 511 U.S. 1076, and 513 U.S. 812 (1994); United States v. Sanders, 928 F.2d 940, 944 (10th Cir.), cert. denied, 502 U.S. 845 (1991); United States v. Til lett, 763 F.2d 628, 632 (4th Cir. 1985). Thus, in Console, the court found its "separate existence" requirement to be satisfied where the association-in-fact enterprise "coordinated the commission of multiple predicate of fenses * * * and continued to provide legitimate ser vices during the period in which they were engaged in racketeering activities." 13 F.3d at 652. In Tillett, the requirement was found to be satisfied by evidence that the enterprise set up a legitimate business as a front for its smuggling operation, purchased trucks and equip ment, and formed a corporation to purchase a boat. 763 F.2d at 632. And in Sanders, the requirement was found to be satisfied because "the group continued to exist and thrive on heroin sales without any particular contribu tion of individuals and conducted numerous predicate acts of racketeering." 928 F.2d at 944.

Even the Eighth Circuit, despite stating that an as sociation-in-fact enterprise must have an ascertainable structure distinct from that inherent in the conduct of the predicate acts, routinely considers factors other than the enterprise's structure in determining whether the enterprise satisfies the "separate existence" require ment. See, e.g., United States v. Crenshaw, 359 F.3d 977, 991 (2004) ("patterns of retaliation and intimidation undertaken to protect and defend the enterprise's busi ness and associates"); United States v. Keltner, 147 F.3d 662, 668-669 (use in later robberies of items stolen in earlier robberies), cert. denied, 525 U.S. 1032 (1998); id. at 669 ("several acts of intimidation and solicitation of perjury to protect [members'] identit[ies]"); United States v. Davidson, 122 F.3d 531, 535 ("family and social relationships" between members) (citation omitted), cert. denied, 522 U.S. 1034 (1997), and 523 U.S. 1033 (1998); ibid. ("numerous acts of retaliation and intimida tion" and an "attempt to involve a local sheriff in a murder-for-hire"); United States v. Darden, 70 F.3d 1507, 1521 (1995) ("shar[ing of] information [by mem bers] to protect their drug trade, avoid apprehension, and defeat competitors"), cert. denied, 517 U.S. 1149, and 518 U.S. 1026 (1996); United States v. Leisure, 844 F.2d 1347, 1363 (1987) ("family and social relationships between members of group"), cert. denied, 488 U.S. 932, 960 (1988); ibid. ("concerted attempt to gain control of the local unions, which can be viewed in complete isola tion from the group's pattern of racketeering activity"); Kragness, 830 F.3d at 857 ("activities aside from the commission of the alleged predicate acts"); ibid. (pur chases of property and planes suitable for drug flights, and rental of hangars and a house) id. at 857-858 (use of banking and financial services).

Indeed, the Eighth Circuit has held that the "sepa rate existence" requirement may be satisfied where "a group engaged in a diverse pattern of crimes," notwith standing that the crimes are all charged as predicate racketeering acts. Bledsoe, 674 F.2d at 665. Thus, in United States v. Lemm, 680 F.2d 1193 (8th Cir. 1982), cert. denied, 459 U.S. 1110 (1983), where the predicate acts consisted of arson and mail fraud involving the de livery of insurance claims, the court held that the "sepa rate enterprise" requirement was satisfied in that "[t]he arson ring, through hand-delivery of insurance claims, could have conducted its activities without any predicate acts of mail fraud. In other words, if we eliminate for purposes of argument the predicate acts of mail fraud, the evidence still shows an on-going structure which engaged in legitimate purchases and repairs of property as well as acts of arson." Id. at 1201. In short, peti tioner's notion that any "separate existence" require ment may be satisfied only by proof that the enterprise had an ascertainable structure is not one that appears to be followed in practice by any court of appeals.

3. An independent "ascertainable structure" require ment is not necessary to distinguish between conspir acy and RICO offenses

Petitioner contends (Br. 11-13, 47-49) that, without an "ascertainable structure" requirement, every long- term conspiracy under 18 U.S.C. 371 to commit predi cate racketeering acts listed in Section 1961(1) would give rise to a RICO enterprise, and every participant in such a conspiracy would be a RICO offender. Peti tioner's concern that "vast amounts of conspiracy law" would be "RICO-ize[d]," Br. 48, misunderstands the nature of both conspiracy and a RICO offense under Section 1962(c).

a. First, a conspiracy violating Section 371 will not necessarily give rise to an enterprise. "Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act." Iannelli v. United States, 420 U.S. 770, 777 (1975) (emphasis added). Because a conspiracy is complete under Section 371 once such an agreement is formed with the requisite scienter and an overt act is taken in pursuit of the conspiracy, criminal liability attaches "regardless of whether the crime agreed upon actually is committed." United States v. Feola, 420 U.S. 671, 694 (1975); see Salinas v. United States, 522 U.S. 52, 63 (1997). The offense accordingly has no temporal requirement and may be committed in the brief span it requires for two people to agree on a criminal object and to take a step toward its effectua tion. No actual degree of coordinated effort is required.

By contrast, an association-in-fact enterprise, as Turkette makes clear, is an organization or entity- whether formal or informal-that has an "ongoing" exis tence and whose members "function as a continuing unit." See 452 U.S. at 583 (emphasis added). While the organization need not possess any ascertainable struc ture, its members must actually coordinate their efforts to achieve the raison d'etre of their association in fact: the "common purpose of engaging in a course of con duct." See ibid. Thus, conspiracies to commit predicate racketeering acts have the potential to evolve into asso ciation-in-fact enterprises if their members take coordi nated actions to achieve that end.

b. In any event, petitioner is mistaken in his belief (Br. 11, 47) that a RICO offense carrying a "drastically enhanced penalty" will result from mere conspiracies violating Section 371. A RICO offense under Section 1962(c), requires much more than just the existence of an enterprise; it requires that the defendant participate in the conduct of the enterprise's affairs through an ac tual "pattern of racketeering activity." That pattern, as noted, requires the defendant to commit at least two (or more) actual predicate racketeering offenses listed in Section 1961(1) that are both "related" and amount to or pose a threat of continuing criminal activity. H.J. Inc., 492 U.S. at 237, 239-243. Not every long-term predicate conspiracy will satisfy RICO's pattern element. And if one does, a defendant can hardly complain that his ac tual pattern of racketeering acts triggered a RICO pros ecution.

c. Petitioner contends further (Br. 50) that an "as certainable structure" requirement is needed to main tain a distinction between a Section 1962(c) offense and a RICO conspiracy under Section 1962(d). A RICO con spiracy to violate Section 1962(c) involves an agreement to "further an endeavor which, if completed, would sat isfy all of the elements of a substantive criminal offense" under Section 1962(c). Salinas, 522 U.S. at 65. Where an association-in-fact enterprise is legitimate, the enter prise will obviously be distinct from any agreement to conduct it through a pattern of racketeering. The situa tion is somewhat different, however, for illegitimate association-in-fact enterprises. A criminal association- in-fact enterprise ordinarily may subsume one or more conspiracies to commit substantive crimes, because such an enterprise is defined in part by the common objective of its members to commit such offenses together or to facilitate one another's commission of criminal acts. For this same reason, an illegitimate association-in-fact en terprise (at least where its very purpose is to commit RICO-qualifying offenses) will ordinarily subsume a RICO conspiracy. This Court essentially recognized as much when it observed in Salinas that in such cases it may be "somewhat difficult to determine just where the enterprise ends and the [RICO] conspiracy begins, or, on the other hand, whether the two crimes are coinci dent in their factual circumstances." Ibid. But, con trary to petitioner's view, an illegitimate association-in- fact enterprise would be no less coincident with a RICO conspiracy if the enterprise had an ascertainable struc ture than if it did not; if anything, the existence of such a structure would merely provide additional proof of the RICO conspiracy.

Petitioner's reliance (Br. 13, 47) on United States v. Santos, 128 S. Ct. 2020 (2008), is misplaced for similar reasons. The "merger" concern expressed by the plural ity and Justice Stevens in Santos arose from the view of those Justices that commission of a predicate gambling offense would virtually always be a violation of the money-laundering statute, 18 U.S.C. 1956. Santos, 128 S. Ct. at 2026-2027 (plurality opinion); id. at 2033 (Stevens, J., concurring). But it is certainly not the case that any series of crimes committed by conspirators would almost always violate RICO. And to the extent that RICO conspirators who actually carry out their crimes would also violate RICO's substantive provision, nothing in that conclusion is problematic. See Iannelli, 420 U.S. at 777-778 ("[I]t is well recognized that in most cases separate sentences can be imposed for the conspir acy to do an act and for the subsequent accomplishment of that end.").

4. An independent "ascertainable structure" require ment finds no support in this Court's Turkette, Reves, and H.J. Inc. decisions

Petitioner's leading arguments (Br. 24-37) parse the text of a series of this Court's RICO decisions, using dictionary definitions to construe the "plain language" of those opinions (Br. 24) rather than the plain language of the statute. But "the language of an opinion is not always to be parsed as though we were dealing with lan guage of a statute" and, instead, must properly be "read in context." Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979); accord Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 159 (2002) (Breyer, J., dissenting); CBS v. FCC, 453 U.S. 367, 385 (1981). When read as a whole, neither Turkette, supra, Reves v. Ernst & Young, 507 U.S. 170 (1993), nor H.J. Inc., supra, supports peti tioner's "ascertainable structure" requirement.

a. As previously explained, Turkette recognized that Congress placed "no restriction upon the associations embraced by the definition" of enterprise, which in cludes even "informal" organizations of individuals asso ciated in fact to engage in a criminal course of conduct. 452 U.S. at 580, 583. The fact that Turkette describes an "enterprise" as an "entity" or "organization" (terms that do not appear in RICO's text) simply does not speak to whether the entity or organization must have "a cohe sive structure" beyond that needed to implement the coordinated conduct of its members. Indeed, the district court's instruction that the jury must find "an ongoing organization with some sort of framework, formal or informal, for carrying out its objectives," J.A. 112, more than satisfied Turkette.

b. Reves likewise does not support petitioner's con tention. The "enterprise" in Reves was a farmer's coop erative which, through its board of directors and general manager, hired an accounting firm to conduct its annual audit, and the accounting firm was subsequently sued under RICO's civil remedy provisions for its conduct connected with the audit. The Court concluded that a person may not be liable for a RICO violation under Sec tion 1962(c) unless that person "participate[d] in the operation or management of the enterprise itself." Reves, 507 U.S. at 185. In doing so, the Court expressly declined to decide what degree of direction of an enter prise's affairs is needed to satisfy the so-called "opera tion or management" test, id. at 184 n.9, but explained that "significant control" is unnecessary and noted that "[a]n enterprise is 'operated' not just by upper manage ment but also by lower-rung participants in the enter prise who are under the direction of upper manage ment." Id. at 179 n.4, 184 (citation omitted).

Petitioner seizes upon the Court's use of the words "operate" and "management" to conclude that "Reves plainly contemplates the existence of a structured enter prise," Br. 32-34, but the Court's decision merely re flects unremarkable fact that some RICO enterprises will be structured hierarchically, like the farmer's coop erative in Reves. The Court's "operation and manage ment" test does not presuppose that all RICO enter prises will have ascertainable structures. A group of in dividuals may "operate" a criminal enterprise-i.e., plan and carry out the enterprise's criminal activity-without having a leader or other discernible structural identity. Indeed, even in the context of structured organizations, the courts of appeals have recognized that a person may operate an enterprise without having a supervisory posi tion.11

c. Petitioner's reliance (Br. 34-36) on H.J. Inc. is equally misplaced. H.J. Inc. held that predicate racke teering acts will constitute a "pattern" under RICO only if they are "related" and "themselves amount to, or * * * otherwise constitute a threat of, continuing rack eteering activity," explaining that a "threat of continu ity" is established, for instance, "where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes." 492 U.S. at 239-240, 242-243. The fact that a pattern must involve a threat of or continuing racketeering ac tivity, however, does not support petitioner's conclusion that such a requirement "intrinsically connotes struc ture." Br. 35. A criminal association may enjoy a long life as a cohesive unit while lacking any formalistic structure, and nothing in H.J. Inc. suggests that an in dependent showing of structure is required in order to prove continuity.

5. Petitioner's textual analysis of Section 1961(4), like the title and purpose of RICO, does not support an independent "ascertainable structure" requirement

Petitioner's textual analysis (Br. 38-39, 40-44) fo cuses on two discrete aspects of Section 1961(4)'s defini tion of enterprise and RICO's statutory title, none of which supports petitioner's "ascertainable structure" requirement.

a. Petitioner contends (Br. 41-42) that the conjunc tion "although" in the phrase "group of individuals asso ciated in fact although not a legal entity" reflects that such a group must have an ascertainable structure be cause, in petitioner's view, the text following "although" implies that the group is just "structured without the aid of legally defined structural forms such as the business corporation." Limestone Dev. Corp. v. Village of Le mont, 520 F.3d 797, 804-805 (7th Cir. 2008). But the ca tegory of association-in-fact enterprises that are "not le gal entit[ies]" encompasses both associations-in-fact that have an ascertainable structure and those that do not. The words "although not a legal entity" merely bring within the definition of "enterprise" associative entities that have no independent legal existence. See Turkette, 452 U.S. at 582. The notion that association-in-fact en terprises must in some particular way be like legal enti ties does not follow from the text which applies only to enterprises that are not legal entities.

Petitioner contends that his reading is "reinforced by the fact that before 'any union or group of individuals associated in fact' . . . appears a list of [formally struc tured] legal entities" including partnerships and corpo rations, Br. 44 (quoting Limestone Dev. Corp., 520 F.3d at 805) (brackets in original). But Section 1961(4)'s list of legal entities also includes "any individual" and there fore is not confined to entities displaying a "structural form." Consequently, even if the non-legal entities in Section 1961(4) were limited by traits of the legal enti ties that precede them in that provision, it "would be improper to engraft this characteristic upon the second category of enterprises" because it "is not a universal characteristic of the specifically listed enterprises." Turkette, 452 U.S. at 582 n.4.

Turkette, moreover, rejected the argument that the scope of the association-in-fact clause should be limited by the list of legal entities in Section 1961(4)'s opening clause. The court of appeals in Turkette had reasoned that "because each of the specific enterprises enumer ated in § 1961(4) is a 'legitimate' one, the final catchall phrase-'any union or group of individuals associated in fact'-should also be limited to legitimate enterprises." 452 U.S. at 581. This Court, however, held that the prin cipal flaw in that reasoning was the assumption that an association-in-fact enterprise, as described in the second clause of Section 1961(4), constitutes a "more general" category than the legal entities listed in the opening clause. Id. at 582. "Each category describes a separate type of enterprise to be covered by the statute-those that are recognized as legal entities and those that are not," and therefore that "[t]he latter [category] is not a more general description of the former." Ibid. (empha sis added).

b. Petitioner also relies on the word "union" in the second clause of Section 1961(4). Building from the premise that "union" means "labor union," petitioner argues (Br. 42-44) that, because labor unions have ascer tainable structures, so must association-in-fact enter prises. Even assuming that Congress intended "union" to refer solely to "labor unions" in Section 1961(4), peti tioner incorrectly concludes that the phrase "any * * * group of individuals associated in fact" must, like a labor union, have some formalized structure. Labor unions may have any number of characteristics, including lead ership by election, established headquarters, formal by- laws, and management hierarchy. The simple fact that the phrase "group of individuals" follows "union" in Sec tion 1961(4) is an unsound basis from which to infer that Congress intended such a "group" to share in any one those characteristics.

c. Petitioner contends (Br. 38-39) that the word "or ganizations" in the title of Chapter 96 of Title 18 ("Racketeer Influenced and Corrupt Organizations," 84 Stat. 941) "is synonymous with 'structure.'" The word "organization," however, cannot carry the weight peti tioner would place upon it. See p. 19 & n.4, supra. Even if it could, "[t]he title of a statute . . . cannot limit the plain meaning of the text." Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (citation omitted). Especially where the statutory text is "complicated and prolific," as it is in RICO, it may contain provisions that are "unreflected" in the title. Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528 (1947). Indeed, this Court has previously rejected the view that RICO's "broad language should be read nar rowly" to limit the statute to its purported purpose, "as revealed in the Act's title," of combating organized crime. H.J. Inc., 492 U.S. at 245-246.

6. The purpose of the RICO statute does not support an independent "ascertainable structure" requirement

Petitioner's reliance (Br. 53-58) on the statutory pur poses reflected in RICO's preamble and legislative his tory is misplaced for similar reasons. Petitioner argues that RICO was intended to eradicate organized crime and infers from that objective that the statute's reach must be limited to organized-crime-type enterprises- i.e., enterprises with an independent ascertainable structure. Br. 53-54. Of course, organized crime was Congress's "major target" in enacting RICO. H.J. Inc., 492 U.S. at 245. That fact, however, does not support petitioner's "ascertainable structure" requirement.

a. The "authoritative statement [of Congress] is the statutory text." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). "Extrinsic materi als have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legisla ture's understanding of otherwise ambiguous terms." Ibid. As shown above, the language of RICO's operative text is broad and unambiguous with respect to an "as certainable structure" requirement. Absent any rele vant ambiguity in that text, "th[e] first canon is also the last: 'judicial inquiry is complete.'" Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992) (quoting Ru bin v. United States, 449 U.S. 424, 430 (1981)).

b. In any event, petitioner's contentions are fore closed by this Court's decision in H.J. Inc. The Court there held that a RICO defendant's "pattern of racke teering activity" need not be characteristic of organized crime or an organized-crime-type perpetrator. 492 U.S. at 244-249. The Court's rationale is fatal to petitioner's argument that RICO enterprises must be characteristic of organized crime. First, the Court's rejected an organized-crime limitation because such a limitation "would seem to require proof that the racketeering acts were the work of an association or group, rather than of an individual acting alone," a requirement not imposed by the text of the statute. Id. at 244. Second, the Court rejected the proposed limitation on the ground that RICO is not like other statutes and other titles of the OCCA that are expressly limited to organized-crime contexts. Id. at 244-245.12

Finally, notwithstanding its finding that the legisla tive debates and reports focused on the need to combat organized crime, H.J. Inc., 492 U.S. at 245, the Court concluded that an organized crime limitation on RICO's pattern element would be "at odds with the tenor of [the statute's] legislative history." Id. at 244. That legisla tive history shows that Congress deliberately rejected an organized crime limitation on the statute's scope, opting instead for "language capable of extending be yond organized crime." Id. at 246. The Court explained that, while "[t]he occasion for Congress's action was the perceived need to combat organized crime," Congress "for cogent reasons chose to enact a more general stat ute, one which, although it had organized crime as its focus, was not limited in application to organized crime." Id. at 248; cf. H.R. Rep. No. 1549, 91st Cong., 2d Sess. 56 (1970) (explaining that RICO will reach the "infiltra tion of any associative group by any ['person']" because it "defines 'enterprise' to include associations in fact, as well as legally recognized associative entities") (empha sis added); cf. also 18 U.S.C. 1961(3) (defining "person").

Petitioner does not argue that a RICO enterprise must be an organized crime entity; he argues only that it must possess an attribute characteristic of such an entity. But the Court in H.J. Inc. rejected a similar argument-that "a defendant's racketeering activities form a pattern only if they are characteristic either of organized crime in the traditional sense, or of an organized-crime-type perpetrator." 492 U.S. at 243 (em phasis added). Moreover, the Court in H.J. Inc. con cluded that a RICO pattern need not be indicative of an organized crime perpetrator "in either a traditional or functional sense." Id. at 244 (emphasis added). H.J. Inc. therefore stands for the proposition that the broad scope of the RICO statute may not be limited by refer ence to the statute's overriding purpose of eradicating organized crime.

7. Petitioner's remaining contentions are without merit

Petitioner contends (Br. 44-46, 50-51, 63-69) that two statutory provisions (18 U.S.C. 1955 and 1959) indicate that a RICO enterprise must satisfy petitioner's "ascer tainable structure" requirement and that the rule of lenity and doctrine of constitutional avoidance counsel in favor of that restriction. Each of those contentions is misplaced.

a. First, the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. 1959, makes it unlawful to commit a violent crime in return for anything of pecuniary value from "an enterprise engaged in racketeering activity," or for the purpose of gaining entrance to or maintaining or increasing one's position in such an "enterprise." 18 U.S.C. 1959(a). Borrowing from RICO, the statute de fines "enterprise" as "includ[ing] any partnership, cor poration, association, or other legal entity, and any un ion or group of individuals associated in fact although not a legal entity." 18 U.S.C. 1959(b)(2). Petitioner ar gues that a Section 1959 enterprise must have an ascer tainable structure in order for outsiders to be able to gain entry to it or for its members to be able to maintain or increase their positions in it. He then concludes that, if a Section 1959 enterprise must have an ascertainable structure, so must a RICO enterprise. Br. 44-46.

Petitioner's premise is incorrect. A Section 1959 as sociation-in-fact enterprise need not have an independ ent ascertainable structure in order for the statute to be violated. For example, a member of an enterprise lack ing any such structure may violate the statute by seek ing to take control of the enterprise by violence, thereby imposing structure upon it. Similarly, an outsider may gain admittance to an enterprise, an insider may main tain his membership in an enterprise, and a person may receive something of pecuniary value from an enterprise even if the enterprise is an association-in-fact that lacks an ascertainable structure.13

b. Petitioner argues (Br. 50-51) that, without an "as certainable structure" requirement, RICO "would swal low[,] if not negate," the federal gambling statute, 18 U.S.C. 1955. That statute makes it a crime to operate a gambling business that violates the law of the State in which it is conducted; involves five or more persons who conduct, finance, manage, supervise, direct, or own the business; and remains in continuous operation for more than 30 days or has a gross revenue of $2000 in any sin gle day. According to petitioner (Br. 51), "absent a structured enterprise requirement, prosecutors could evade § 1955's five-or-more-managers threshold * * * simply by charging two months or even two lucrative days of group gambling as a § 1962(c) offense." That is incorrect.

If the government brought a RICO prosecution un der Section 1962(c) alleging a Section 1955 offense as a predicate racketeering act, it would have to prove the defendant violated Section 1955 by establishing every element of that crime, including the "five-or-more-man agers threshold." Alternatively, if the government charged multiple state felony gambling offenses as the relevant predicate acts (see 18 U.S.C. 1961(1)(A)), and those state-law offenses did not include a similar man agement requirement as an element of the crime, the government would not need to prove management par ticipation. By specifically authorizing the use of state gambling offenses as RICO predicates, however, Con gress expressed its intent to allow RICO prosecutions of gambling enterprises that, while meeting RICO's "on going organization" and "continuing unit" requirements, might not satisfy Section 1955's "five-or-more managers threshold." That by no means "negates" the effect of Section 1955. And, even if it did, it would be a congres sionally authorized negation that would not be remedied by petitioner's "ascertainable structure" requirement (which itself would not require a five-or-more-managers rule).

c. Finally, petitioner's reliance (Br. 63-69) on the rule of lenity and the principle of constitutional avoid ance is misplaced.

i. The rule of lenity applies only if, "at the end of the process of construing what Congress has expressed," Callanan v. United States, 364 U.S. 587, 596 (1961), "there is a grievous ambiguity or uncertainty in the stat ute." Muscarello v. United States, 524 U.S. 125, 139 (1998) (internal quotation marks and citation omitted). Neither "[t]he mere possibility of articulating a nar rower construction," Smith v. United States, 508 U.S. 223, 239 (1993), nor the "existence of some statutory am biguity" is "sufficient to warrant application of th[e] rule." Muscarello, 524 U.S. at 138. Instead, the rule of lenity applies "only if, after seizing everything from which aid can be derived, [the Court] can make no more than a guess as to what Congress intended." Ibid. (in ternal quotation marks and citation omitted).

There is no need to resort to the rule of lenity be cause the statute is not ambiguous; it is simply-and unambiguously-broad. Sedima, 473 U.S. at 499. And there is no textual warrant for the courts to add an "as certainable structure" gloss that is itself an ambiguous and "amorphous concept." See H.J. Inc., 492 U.S. at 241 n.3 (citation omitted).

ii. While statutes should be construed, where possi ble, to avoid constitutional questions, see Salinas, 522 U.S. at 59-60, that interpretive cannon has no applica tion here. Petitioner contends (Br. 64-66) that, without an "ascertainable structure" requirement, the RICO statute would unconstitutionally remove the enterprise element from the jury's consideration and render RICO unconstitutionally vague. Both arguments rest on the premise that a structural requirement is necessary to prevent RICO's enterprise and "pattern of racketeering activity" elements from merging. But, as shown above, the absence of such a requirement presents no "merger" problem.14


In this case, the district court properly denied peti tioner's request for an "ascertainable structure" instruc tion and correctly charged the jury that an enterprise need not have any "particular or formal structure." J.A. 112. The evidence, moreover, was sufficient to establish that the charged association-in-fact qualified as a RICO enterprise. Regardless of whether it lacked an ascer tainable structure, petitioner's enterprise had a common purpose and functioned as a continuing unit.

The enterprise, as established by the evidence, con sisted of an association informally organized for the pur pose of committing bank theft. The organization en gaged in dozens of successful and attempted bank thefts in several States over a nine-year period, reflecting a degree of sophistication and experience typical of ongo ing criminal organizations. The enterprise maintained a consistent core of members throughout its existence, while also having the ability to recruit new members as older ones were incarcerated or moved away. Tr. 664. The members gathered together at a social club in Brooklyn run by one of their own, Tommy Dono, Tr. 308, 501, and they were bound together by their mutual trust in one another's competence and loyalty, Tr. 213-214, 664-665.

Although the enterprise lacked a distinct manage ment structure, it operated in an organized fashion. Members of the group would scout for opportunities to commit night-deposit-box theft based on settled criteria: The targeted boxes were a particular type that the mem bers had developed an expertise in dismounting, Tr. 45, 304-305, 434, 437, and were situated in areas where there was a high volume of cash deposits, such as shop ping malls, Tr. 304, 343, 366-373, 439-441. Once a satis factory opportunity was located, a member of the orga nization would assume the role of "organizer" and as semble the participants for the operation. Tr. 500-503. Those members participating in a theft would then meet to plan the operation, Tr. 501-502, 679, 929, and deci sions were made by agreement rather than dictated by a leader. Tr. 929. The operations would ordinarily take place early in the week, when the boxes still contained weekend deposits. Tr. 45. Each participant played a distinct role in the operations. Some acted as lookouts, equipped with police scanners and walkie-talkies. Tr. 43-44, 47, 48, 212, 317, 337-338, 782. Others, usually two or three, were charged with prying the night-deposit box from the wall and removing the deposit bags. Tr. 43, 299, 317, 334, 359-360, 443-447. On each operation, the members brought along a set of tools: hammers, screw drivers, ratchet sets, crowbars, chains, and fishing gaffs, as well as the police scanners and walkie-talkies. Tr. 43, 48, 312-313, 317, 320, 337-338, 349-350, 383, 443-445, 666. Following a theft, the participating members would split the proceeds according to a settled arrangement. The group conducted the bank vault burglaries and bank robberies in a similarly coordinated manner. Tr. 323, 455, 528-529.

As the above discussion demonstrates, the organiza tion had a tangible existence beyond the bare minimum necessary to commit the related predicate acts of inter state transportation of bank-theft funds. Its members associated together independent of their racketeering activity; had a meeting place; recruited new members; retained tools of their illicit trade, Tr. 213; had a routine for developing new bank theft opportunities, for plan ning operations, and for making decisions; retained the ability to assemble and coordinate their members to conduct bank thefts as opportunities arose; and had an arrangement for dividing the proceeds of their opera tions. Petitioner's characterization of the group's opera tions as "ad hoc and impromptu," Br. 18, does not com port with the evidence in this case. And on the record evidence, there is no basis for overturning the jury's conclusion that the prosecution established a RICO en terprise.


The judgment of the court of appeals should be af firmed.

Respectfully submitted.

Solicitor General
Acting Assistant Attorney
Deputy Solicitor General
Assistant to the Solicitor




1 While petitioner asserts (Br. 16) that the jury "hung" on the Nat West bank robbery, the record reflects that district court instructed the jury that it need not reach a decision on that predicate act if it found two or more other racketeering predicates warranting petitioner's con viction on RICO charges. Tr. 1484. The jury found petitioner guilty on the RICO counts, leaving the verdict form blank with respect to the NatWest predicate. Tr. 1491; cf. J.A. 15-18; Tr. 1520-1521 (assessing RICO forfeiture). The NatWest evidence was available for the jury to use in finding the existence of an enterprise.

2 Dono and Petrino entered guilty pleas shortly thereafter. See Dist. Ct. Docket entry (Jan. 25, 2005).

3 This Court has read the term "any" narrowly in circumstances where the statutory context included a term of art that "compelled that result," where another statutory term "made sense only under [such] a narrow reading," and where the "clear statement rule" required for waivers of sovereign immunity made a more limited reading appropri ate. Ali, 128 S. Ct. at 836 n.4. This Court's recognition that RICO's text imposes "no restriction" upon the associations included in the in the definition of "enterprise" (Turkette, 452 U.S. at 580), however, re flects that no such consideration here warrants departing from the nor mal, expansive meaning of "any."

4 Petitioner argues that, as used in Turkette, the word "organization" (which does not appear in RICO's operative text) denotes a structured entity. See Br. 27-28. But that definition does not account for Tur kette's characterization of an association-in-fact enterprise as an "or ganization" that may be either "formal or informal." And, while the word "organization" may be defined with reference to the structure of an association of individuals, it may also be defined with reference to the association's common purpose. See The Random House Dictionary of the English Language 1364 (2d ed. 1987) (defining "organization" as "a group of persons organized for some end or work; association"); The American Heritage Dictionary of the English Language 1239 (4th ed. 2006) (defining "organization" as "[a] group of persons organized for a particular purpose; an association"). That understanding, rather that petitioner's, parallels Turkette's focus on the "common purpose" of an association's members rather than its structure. 452 U.S. at 583.

5 See, e.g., United States v. Nascimento, 491 F.3d 25, 33 (1st Cir. 2007) (street gang "exhibited group cohesion over time; its membership pooled and shared resources; the individuals involved had a sense of belonging and self-identified as [gang] members; and the group had a well-honed set of goals"), cert. denied, 128 S. Ct. 1738 (2008); United States v. Owens, 167 F.3d 739, 751 (1st Cir.) (members of drug traffick ing organization provided other members with financial assistance and coordinated transportation of drugs), cert. denied, 528 U.S. 894 (1999); United States v. Richardson, 167 F.3d 621, 625 (D.C. Cir.) ("Additional evidence of [the enterprise's] organization and continuity comes from the robberies' consistent pattern."), cert. denied, 528 U.S. 895 (1999); United States v. Davidson, 122 F.3d 531, 535 (8th Cir.) ("The length of these associations, the number and variety of crimes the group jointly committed, and Davidson's financial support of his underlings demon strates an ongoing association with a common purpose to reap the eco nomic rewards flowing from the crimes, rather than a series of ad hoc relationships."), cert. denied, 522 U.S. 1034 (1997), and 523 U.S. 1033 (1998); United States v. Doherty, 867 F.2d 47, 68 (1st Cir.) (Breyer, J.) ("The number of acts, their relationship, their having taken place over several years, and the consistent participation of the central figures in the scheme show a 'group of persons associated together for a common purpose of engaging in a [criminal] course of conduct.'") (brackets in original), cert. denied, 492 U.S. 918 (1989); United States v. Perholtz, 842 F.2d 343, 355 (D.C. Cir.) ("The interlocking nature of the schemes and the overlapping nature of the wrongdoing provides sufficient evidence for the jury to conclude that this was a single enterprise."), cert. denied, 488 U.S. 821 (1988); United States v. Qaoud, 777 F.2d 1105, 1117 (6th Cir. 1985) (finding existence of enterprise established by "[t]he coordinated nature of the defendants' activity"), cert. denied, 475 U.S. 1098 (1986).

6 Cf. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 244 (1989) (if Congress had intended to limit RICO's coverage to organized crime, it would have "explicitly [so] stated"); NOW, 510 U.S. at 261 (similar; rejecting "economic motive" requirement for "enterprise"); Turkette, 452 U.S. at 581 (similar; declining to restrict "enterprise" to legitimate entities).

7 See also, e.g., United States v. Smith, 413 F.3d 1253, 1267 (10th Cir. 2005) (ruling that an enterprise may exist as a continuing unit "even if some individuals left [it] and were replaced by new members at a later date"), cert. denied, 546 U.S. 1120 (2006); United States v. Nabors, 45 F.3d 238, 241 (8th Cir. 1995) ("[T]he personnel of an enterprise may un dergo alteration without loss of the enterprise's identity as an enter prise."); United States v. Hewes, 729 F.2d 1302, 1317 (11th Cir. 1984) ("The law does not require all members of the RICO enterprise to have maintained their association with it throughout the enterprise's life."), cert. denied, 469 U.S. 1110 (1985).

8 In contrast, if a core group of associates carries out similar crimes over time, with certain personnel changing during the life of their activ ities, the existence of that core group pursuing a common purpose can be strong evidence of the existence of an enterprise. Such evidence un derscores the common purpose of the associates and their ability to function as a continuing unit, even as individual members come and go.

9 In Turkette, the government argued that "[w]e do not suggest that any two sporadic and isolated offenses by the same actor or actors ipso facto constitute an 'illegitimate' enterprise; rather the existence of the enterprise as an independent entity must also be shown." 452 U.S. at 583 n.5. The Court's response was that, even if "that were not the case," it would not matter because the "enterprise" element need not add something in all contexts in order to avoid superfluity. Ibid. And the "enterprise" element indisputably adds a unique requirement where the enterprise is a legal entity or an entity with mixed lawful and un lawful functions. Notably, the government's analysis in Turkette pre ceded this Court's holding in H.J. Inc. that a RICO pattern requires continuity plus relationship. The evidence establishing those additional features of a "pattern," in most cases, does provide sufficient proof of an enterprise when the enterprise is wholly illegal.

10 Numerous factors may be relevant, for example: the purchase or retention of tools used by members in their criminal activity; patterns of financial transactions or possession of property; the maintenance of records associated with criminal activities; efforts to develop new opportunities to engage in crime or to solicit customers for criminal ser vices; the manner in which members maintain lines of communication; processes used to plan operations and make group decisions; profit sharing from criminal activity; post-racketeering-act efforts to avoid detection or to intimidate witnesses; members' joint participation in lawful activities or in crimes other than acts of racketeering; and the association of its members apart from the criminal activities in which they engage.

11 See, e.g., United States v. Posada-Rios, 158 F.3d 832, 856 (5th Cir. 1998) (Reves does not require that a defendant have "'decision-making' power," but only that he "'take part in' the operation of the enter prise.") (citation omitted), cert. denied, 526 U.S. 1031, 1080, 1137 (1999); United States v. Houlihan, 92 F.3d 1271, 1298-1299 (1st Cir. 1996) (upholding instruction that jury could find that the defendant partici pated in the conduct of the enterprise even though he had no part in the management or control of the enterprise where defendant was an "insider[]" who was "integral to carrying out the enterprise's racketeer ing activities"), cert. denied, 519 U.S. 1118 (1997); United States v. Starrett, 55 F.3d 1525, 1548 (11th Cir. 1995) (Those who "implement[]" decisions made by others are liable under the "operation or manage ment" test.), cert. denied, 517 U.S. 1111, 1127 (1996).

12 The Court cited two provisions of the OCCA: Section 501, 84 Stat. 933 (repealed 1984) (stating that the Attorney General may provide for the security of witnesses "in legal proceedings against any person alleged to have participated in organized criminal activity"), and Section 601(a), 84 Stat. 934 (18 U.S.C. 3503(a) (2000)) (repealed 2002) (permit ting the deposition of a witness to preserve testimony for a legal proceeding upon motion by the Attorney General certifying that "the legal proceeding is against a person who is believed to have participated in an organized criminal activity"). H.J. Inc., 492 U.S. at 244-245. The Court also referred to the Omnibus Crime Control and Safe Streets Act of 1968, § 601(b), Pub. L. No. 90-351, 82 Stat. 209 (defining "organized crime" as the "unlawful activities of the members of a highly organized, disciplined association engaged in supplying illegal goods and services, including but not limited to gambling, prostitution, loan sharking, narcotics, labor racketeering, and other unlawful activities of members of such organizations"). 492 U.S. at 245.

13 Even if the Congress that enacted Section 1959 in 1984 had as sumed that RICO's definition of "enterprise" contemplated that an en terprise must always possess an ascertainable structure, that post- enactment understanding of RICO's provisions would be "beside the point," Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998), because a subsequent Congress cannot "supplant the contemporaneous intent" of the Congress that enacted RICO in 1970. Waterman S.S.


Corp. v. United States, 381 U.S. 252, 269 (1965); see Russello, 464 U.S. at 26.

The internal policies reflected in the U.S. Attorneys' Manual like wise cannot alter the meaning of the statute. Those policies, in any ev ent, recognize that "the statutory definition of 'enterprise' [in Section 1959] is very broad," but, as matter of prosecutorial discretion, provide that "[n]o prosecution under [S]ection 1959 will be approved unless the enterprise has an identifiable structure and purpose apart from the racketeering activity and crimes of violence it is engaged in." Executive Office for U.S. Attorneys, U.S. Dep't of Justice, United States Attor neys' Manual § 9.110-812(C) (1997) (emphasis added). That policy, by its own terms, contemplates that not all enterprises will have an iden tifiable structure and purpose apart from an associated pattern of rack eteering.

14 One of petitioner's amici contends that the Court should adopt petitioner's interpretation of "enterprise" in order to avoid the federal prosecution of traditionally local crimes. Center on Admin. of Crim. Law Amicus Br. 17-28. This Court, however, rejected such an interpre tive approach in Turkette, concluding that, even if a disputed interpre tation of RICO would "substantially alter the balance between federal and state enforcement of criminal law," Congress was "well aware that it was entering a new domain of federal involvement" when it enacted RICO and "the courts are without authority to restrict the application of the statute" where Congress acts within its legislative power. 452 U.S. at 586-587. This Court has repeatedly revisited RICO's text and has never adopted a narrowing construction to accommodate such con cerns. See, e.g., Bridge, 128 S. Ct. at 2145 (addressing RICO's purport ed "'over-federalization' of traditional state-law claims").




1. The Racketeer Influenced and Corrupt Organiza tions Act, 18 U.S.C. 1961 et seq., as amended, provides in pertinent part:

§ 1961. Definitions

As used in this chapter-

(1) ''racketeering activity'' means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punish able by imprisonment for more than one year; (B) any act which is indictable under any of the following provi sions of title 18, United States Code: Section 201 (relat ing to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, sec tion 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1028 (relating to fraud and related activity in connection with identification docu ments), section 1029 (relating to fraud and related activ ity in connection with access devices), section 1084 (re lating to the transmission of gambling information), sec tion 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to financial institu tion fraud), section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizen ship papers), section 1427 (relating to the sale of naturalization or citizenship papers), sections 1461-1465 (re lating to obscene matter), section 1503 (relating to ob struction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), section 1542 (relat ing to false statement in application and use of pass port), section 1543 (relating to forgery or false use of passport), section 1544 (relating to misuse of passport), section 1546 (relating to fraud and misuse of visas, per mits, and other documents), sections 1581-1592 (relating to peonage, slavery, and trafficking in persons), section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to un lawful welfare fund payments), section 1955 (relating to the prohibition of illegal gambling businesses), section 1956 (relating to the laundering of monetary instru ments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity), section 1958 (relating to use of interstate com merce facilities in the commission of murder-for-hire), section 1960 (relating to illegal money transmitters), sections 2251, 2251A, 2252, and 2260 (relating to sexual exploitation of children), sections 2312 and 2313 (relat ing to interstate transportation of stolen motor vehi cles), sections 2314 and 2315 (relating to interstate transportation of stolen property), section 2318 (relating to trafficking in counterfeit labels for phonorecords, computer programs or computer program documenta tion or packaging and copies of motion pictures or other audiovisual works), section 2319 (relating to criminal infringement of a copyright), section 2319A (relating to unauthorized fixation of and trafficking in sound record ings and music videos of live musical performances), section 2320 (relating to trafficking in goods or services bearing counterfeit marks), section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts), sections 2341-2346 (relating to trafficking in con traband cigarettes), sections 2421-24 (relating to white slave traffic), sections 175-178 (relating to biological weapons), sections 229-229F (relating to chemical weap ons), section 831 (relating to nuclear materials), (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relat ing to embezzlement from union funds), (D) any offense involving fraud connected with a case under title 11 (ex cept a case under section 157 of this title), fraud in the sale of securities, or the felonious manufacture, importa tion, receiving, concealment, buying, selling, or other wise dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), punishable under any law of the United States, (E) any act which is indictable under the Currency and For eign Transactions Reporting Act, (F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring cer tain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain, or (G) any act that is indictable under any provision listed in sec tion 2332b(g)(5)(B);

(2) ''State'' means * * * ;

(3) ''person'' includes any individual or entity capable of holding a legal or beneficial interest in property;

(4) ''enterprise'' includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity;

(5) ''pattern of racketeering activity'' requires at least two acts of racketeering activity, one of which oc curred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity;

(6) ''unlawful debt'' means * * * ;

(7) ''racketeering investigator'' means * * * ;

(8) ''racketeering investigation'' means * * * ;

(9) ''documentary material'' includes * * * ;

(10) ''Attorney General'' includes * * * .

§ 1962. Prohibited activities

(a) It shall be unlawful for any person who has re ceived any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has partici pated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indi rectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establish ment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeer ing activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.

(b) It shall be unlawful for any person through a pat tern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indi rectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the ac tivities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.


§ 1963. Criminal penalties

(a) Whoever violates any provision of section 1962 of this chapter shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment), or both, and shall forfeit to the United States, irrespective of any provision of State law-

(1) any interest the person has acquired or main tained in violation of section 1962;

(2) any-

(A) interest in;

(B) security of;

(C) claim against; or

(D) property or contractual right of any kind affording a source of influence over;

any enterprise which the person has established, op erated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and

(3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962.

The court, in imposing sentence on such person shall order, in addition to any other sentence imposed pursu ant to this section, that the person forfeit to the United States all property described in this subsection. In lieu of a fine otherwise authorized by this section, a defen dant who derives profits or other proceeds from an of fense may be fined not more than twice the gross profits or other proceeds.

* * * * *



2. 18 U.S.C. 371 provides:

Conspiracy to commit offense or to defraud United States

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.


3. 18 U.S.C. 1955 provides in pertinent part:

Prohibition of illegal gambling businesses

(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling busi ness shall be fined under this title or imprisoned not more than five years, or both.

(b) As used in this section-

(1) ''illegal gambling business" means a gambling business which-

(i) is a violation of the law of a State or political subdivision in which it is conducted;

(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and

(iii) has been or remains in substantially con tinuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any sin gle day.

* * * * *


4. 18 U.S.C. 1959 provides in pertinent part:

Violent crimes in aid of racketeering activity

(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, any thing of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining en trance to or maintaining or increasing position in an en terprise engaged in racketeering activity, murders, kid naps, maims, assaults with a dangerous weapon, com mits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any indi vidual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be pun ished-

* * * * *

(b) As used in this section-

(1) ''racketeering activity'' has the meaning set forth in section 1961 of this title; and

(2) ''enterprise'' includes any partnership, corpo ration, association, or other legal entity, and any un ion or group of individuals associated in fact although not a legal entity, which is engaged in, or the activi ties of which affect, interstate or foreign commerce.


Merits Stage Brief
Updated October 21, 2014