Rico

Boyle v. United States, 129 S. Ct. 2237 (2009)

The enterprise element of a RICO allegation may be proven with evidence of an “association-in-fact” enterprise. Though the enterprise must have certain characteristics, such as an ongoing organization” it is not necessary to instruct the jury that the “structure” must be distinct from the pattern of racketeering activity.

Salinas v. United States, 522 U.S. 52 (1997)

In a RICO conspiracy case, if the government proves an agreement on an overall objective, it is not necessary to prove that the defendant agreed personally to commit two predicate acts.

United States v. Robertson, 514 U.S. 669 (1995)

The defendant was convicted of violating RICO by investing the proceeds of narcotics transactions in a gold mine in Alaska. Employees of the mine were recruited from outside the state; some of the gold was sold outside the state; and some of the equipment was purchased out of state. This satisfactorily established that the mine was “engaged in interstate commerce.” The court of appeals improperly focused solely on whether the operations of the mine “affected” interstate commerce. RICO, however, establishes jurisdiction if the enterprise’s activities affect interstate commerce, or if the enterprise is engaged in interstate commerce. The latter was sufficiently shown in this case.

H.J. Inc. v. Northwestern Bell Telephone, 492 U.S. 229 (1989)

It is not necessary to prove that a RICO defendant engaged in multiple criminal schemes in order to establish the requisite pattern of racketeering activity. It is enough to show at least two predicate acts of racketeering activity that are related and that amount to or threaten the likelihood of continued criminal activity.

United States v. Cain, 671 F.3d 271 (2d Cir. 2012)

The district court erred in failing to instruct the jury that, in order to establish a “pattern of racketeering” for the purposes of securing a RICO conviction, the government is required to show that the predicate acts were related to one another and threatened continued criminal activity. This “horizontal relatedness” requirement is essential to proving a “pattern.” See United States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989).

United States v. Warner, 498 F.3d 666 (7th Cir. 2007)

A state may be an enterprise. Former Governor George Ryan’s conviction was affirmed.

United States v. Cummings, 395 F.3d 392 (7th Cir. 2005)

The government alleged that the enterprise in this case was a state agency. Low level employees of the agency were bribed to provide to outsiders confidential personal information from the agency’s databases. The Seventh Circuit held that the low level employees did not satisfy the “operation or management” test of Reves v. Ernst & Young, 507 U.S. 170 (1993). That test requires a showing (with respect to insiders) of some degree of direction, so that a person charged with conducting or participating in the enterprise’s affairs within the meaning of § 1962(c) must have some part in directing those affairs. The same standard applies in a § 1962(d) conspiracy case.

United States v. Bruno, 383 F.3d 65 (2d Cir. 2004)

The evidence was insufficient to support the defendants’ RICO and Murder in Aid of Racketeering convictions. The Murder charge (18 U.S.C. § 1959) requires proof that the murder was committed for the purpose of maintaining or increasing a defendant’s position in an enterprise. See also United States v. Ferguson, 246 F.3d 129 (2d Cir. 2001); United States v. Palanco, 145 F.3d 536 (2d Cir. 1998); United States v. Thai, 29 F.3d 785 (2d Cir. 1994). The government failed to prove that the defendants murdered the victim for the required purpose. One theory, that the defendants wanted to “switch crews” within the organized crime family (and for that reason, murdered the victim) does not qualify as “maintaining or increasing” the defendant’s position in the enterprise. Moreover, there were considerably more motivations (such as avoiding paying a debt). In addition, the shooting violated organized crime protocol. Regarding the RICO conviction, the evidence failed to establish that the murder was “related” to the affairs of the enterprise.

Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004)

The Sixth Circuit concluded in the RICO case that a gang member who kills a member of a rival gang has not engaged in conduct that satisfies the interstate commerce element of the offense, unless the rival gang was involved in economic activity that affected interstate commerce. In this case, the rival gang was affiliated with another gang that was involved in drug dealing, but the Sixth Circuit held that this was an insufficient connection to interstate commerce. Violence, alone, even when considered in the aggregate, does not affect interstate commerce.

United States v. Miller, 116 F.3d 641 (2d Cir. 1997)

Under the "operation and management" test of Reves v. Ernst & Young, 507 U.S. 170 (1993), to be prosecuted for a RICO violation, the defendant must participate in the operation or management of the enterprise itself to be subject to liability. It is not sufficient, therefore, to charge the jury that "to participate in the conduct of an enterprise includes the performance of the acts, functions or duties that are necessary or helpful to the operation of the enterprise." The error in this case was harmless, because the defendants were shown to be managers of the enterprise.

United States v. To, 144 F.3d 737 (2d Cir. 1998)

With regard to one defendant in this RICO conspiracy case, the evidence was insufficient. Even assuming that the defendant participated in at least one robbery, this was insufficient evidence that he agreed to an overall objective of supporting the enterprise through a series of robberies. His association with other members of the enterprise was also insufficient evidence of his guilt of being a member of the RICO conspiracy.

United States v. Polanco, 145 F.3d 536 (2d Cir. 1998)

The defendant was a leader of a substantial criminal enterprise engaged in drug dealing and gun sales. One of the defendant’s other interests was selling guns to another enterprise with which he did not compete. On one occasion, he sold a machine gun to the leader of the other organization, and the other leader, in defendant’s presence, tested the machine gun by killing an innocent bystander. The government charged the defendant with violating 18 U.S.C. § 1959 which makes it a separate crime to commit murder for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity. The indictment alleged that the defendant committed the murder to enhance his position in the other criminal enterprise. The Second Circuit reversed. The defendant was a mere “vendor” with respect to his relationship to the other enterprise and the murder was not committed to enhance his position in that enterprise.

United States v. Goldin Industries, Inc., 219 F.3d 1268 (11th Cir. 2000)

The RICO defendant must be distinct from the enterprise in the indictment. Thus, a corporation named as a defendant in the indictment cannot also be the enterprise. In this case, the panel then decided that the defendants were individual corporations, but the enterprise was the association of these corporations. 219 F.3d 1271.

United States v. Posado-Rios, 158 F.3d 832 (5th Cir. 1998)

The Fifth Circuit reversed one defendant’s RICO conspiracy conviction, 158 F.3d at 858, though his convictions for various drug offenses were affirmed.

United States v. Lopez, 851 F.2d 520 (1st Cir. 1988)

The predicate acts which the defendant allegedly committed in connection with this RICO violation were not committed within the last five years and thus the substantive RICO conviction was time-barred; however, the RICO conspiracy conviction was not barred because the statute of limitations did not begin to run until the accomplishment of, or the abandonment of the objectives of, the conspiracy.

United States v. Viola, 35 F.3d 37 (2d Cir. 1994)

The district court’s charge to the jury did not properly address the issue decided by Reves v. Ernst & Young, 113 S.Ct. 1163 (1993). The court did not explain to the jury that a defendant could only be convicted of violating RICO if he had some part in directing the RICO enterprise’s affairs. Thus, an errand boy, who aided the enterprise, could not be convicted of violating RICO.

United States v. Long, 917 F.2d 691 (2d Cir. 1990)

The Second Circuit requires proof of both horizontal and vertical relatedness between the predicate offenses and the enterprise in order to sustain a RICO conviction. The judge instructed the jury that they had to find relatedness between the offenses and the activities of the enterprise, but failed to instruct them that there had to be relatedness between the predicate offenses themselves.

United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990)

The defendant accepted a bribe and later lied to investigators about taking the money. This does not constitute a “pattern of racketeering activity” under the RICO Act. The act of lying to investigators was pled by the government as a violation of 18 U.S.C. §1503. Though the acceptance of the bribe and the obstruction count were “related,” they lacked the requisite “continuity” which is necessary to establish the pattern requirement.

United States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989)

The Second Circuit substantially revamps its analysis of the “pattern” requirement of a RICO prosecution in a case involving the killing of three Mafia men in a restaurant. The Court concludes that this triple slaying sufficed to establish a pattern of racketeering activity.

United States v. Persico, 832 F.2d 705 (2d Cir. 1987)

The Second Circuit holds that the statute of limitations with regard to RICO conspiracy charges does not begin to run until the objectives of the conspiracy have been accomplished or abandoned, regardless of when the last predicate act occurred. With regard to a substantive RICO violation, the government must prove the defendant committed at least one predicate racketeering act within the period of limitations; it is not enough to show that any member of the illegal enterprise committed an overt act during the period.

United States v. Pelullo, 14 F.3d 881 (3rd Cir. 1994)

Defendant was convicted of wire fraud in his first trial. At his second trial, which included a RICO count, the judge instructed the jury that the wire fraud conviction – one of the predicate offenses – was committed “as a matter of law.” The judge further instructed the jury that they did not have to further consider whether that offense had been committed, because, as a matter of law, it had been committed. This was reversible error. In a criminal trial, the prosecution must prove every element beyond a reasonable doubt, including the predicate offenses. The Third Circuit noted that the goal of collateral estoppel (efficiency and public policy concerns) is not necessarily consistent with the Sixth Amendment’s guarantee of a jury trial in all cases.

United States v. Marcello, 876 F.2d 1147 (5th Cir. 1989)

Among the predicate acts offered to the jury in this RICO prosecution were certain mail and wire fraud counts which were invalid since they were based on an intangible right theory. Because there was no way to determine upon which predicate acts the jury based its decision, the RICO conviction had to be reversed.

United States v. Jennings, 842 F.2d 159 (6th Cir. 1988)

The government failed to prove that the defendant engaged in two predicate offenses thus spoiling his RICO conviction. One of the acts relied on by the government was a telephone call in which the defendant’s name was mentioned, but the defendant was not a party to that telephone conversation.

United States v. Neapolitan, 791 F.2d 489 (7th Cir. 1986)

Defendant was convicted of a RICO offense with predicate acts that were not alleged in the indictment. While these acts would be admissible as circumstantial evidence that the defendant was a member of the conspiracy, they were actions outside the scope of the specific RICO conspiracy charged and could not be used to establish the pattern of racketeering activity defined in the indictment.

United States v. Kragness, 830 F.2d 842 (8th Cir. 1987)

The Eighth Circuit holds that one action that violates two statutes may not be charged as two separate predicate acts under RICO. The pattern of racketeering requirement of the act requires the commission of at least two continuous, related acts of racketeering. Thus, the importation, and subsequent possession of marijuana with the intent to distribute does not represent two predicate acts for a RICO prosecution.

United States v. Weissman, 899 F.2d 1111 (11th Cir. 1990)

The trial court improperly allowed the government to change the “enterprise” from that which was alleged in the indictment. The indictment charged the defendant with participating in a pattern of racketeering activity with the “DeCavalcante Family.” At trial, however, the Court instructed the jury that they could find him guilty if there was proof of any enterprise.

United States v. DeFries, 129 F.3d 1293 (D.C.Cir. 1997)

In the midst of instructing the jury on the elements of a RICO offense, the judge instructed the jury that they should presume that the union was an enterprise. Because the existence of an enterprise is an essential element of the offense, this instruction was erroneous.