RICO: A Brief Sketch

November 3, 2004 – August 3, 2021 96-950

RICO: A Brief Sketch
Updated August 3, 2021
Congressional Research Service
https://crsreports.congress.gov
96-950

RICO: A Brief Sketch

Summary
Congress enacted the federal Racketeer Influenced and Corrupt Organization (RICO) provisions
as part of the Organized Crime Control Act of 1970. Despite its name and origin, RICO is not
limited to “mobsters” or members of “organized crime” as those terms are popularly understood.
Rather, it covers those activities that Congress felt characterized the conduct of organized crime,
no matter who actually engages in them.
RICO proscribes no conduct that is not otherwise criminal. Instead, under certain circumstances,
it enlarges the civil and criminal consequences of a list of state and federal crimes.
In simple terms, RICO condemns
(1) any person
(2) who
(a) uses for or invests in, or
(b) acquires or maintains an interest in, or
(c) conducts or participates in the affairs of, or
(d) conspires to invest in, acquire, or conduct the affairs of
(3) an enterprise
(4) which
(a) engages in, or
(b) whose activities affect, interstate or foreign commerce
(5) through
(a) the collection of an unlawful debt, or
(b) the patterned commission of various state and federal crimes.
Violations are punishable by (a) the forfeiture of any property acquired through a RICO violation
and of any property interest in the enterprise involved in the violation, (b) imprisonment for not
more than 20 years, or for life if one of the predicate offenses carries such a penalty, and/or (c) a
fine of not more than the greater of twice the amount of gain or loss associated with the offense or
$250,000 for individuals ($500,000 for organizations). RICO has generally survived
constitutional challenges, although its forfeiture provisions are subject to an excessive fines
clause analysis and perhaps a cruel and unusual punishment disproportionality analysis.
RICO violations also subject the offender to civil liability. The courts may award anyone injured
in their business or property by a RICO violation treble damages, costs and attorneys’ fees, and
may enjoin RICO violations, order divestiture, dissolution or reorganization, or restrict an
offender’s future professional or investment activities. Civil RICO has been often criticized and,
at one time, commentators urged Congress to amend its provisions. Congress found little
consensus on the questions raised by proposed revisions, however, and the issue seems to have
been put aside at least for the time being.
The text of the RICO sections, citations to state RICO statutes, and a selected bibliography are
appended.
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RICO: A Brief Sketch

I. Introduction
Congress enacted the federal Racketeer Influenced and Corrupt Organization (RICO) provisions1
as part of the Organized Crime Control Act of 1970.2 Despite its name and origin, RICO is not
limited to “mobsters” or members of “organized crime,” as those terms are popularly understood.3
Rather, it covers those activities which Congress felt characterized the conduct of organized
crime, no matter who actually engages in them.4
RICO builds on other crimes.5 It enlarges the civil and criminal consequences of the patterned
commission of other state and federal offenses (otherwise known as predicate offenses or
racketeering activity), making it a crime to be a criminal, under certain circumstances.6
In simple terms, RICO condemns
(1) any person
(2) who
(a) invests in, or
(b) acquires or maintains an interest in, or
(c) conducts or participates in the affairs of, or
(d) conspires to invest in, acquire, or conduct the affairs of
(3) an enterprise
(4) which
(a) engages in, or
(b) whose activities affect, interstate or foreign commerce

1 18 U.S.C. §§ 1961 -1968 (text is appended). This report appears in an abridged form, without footnotes, full citations,
or appendixes, as CRS Report RS20376, RICO: An Abridged Sketch, by Charles Doyle.
2 84 Stat. 941 (1970).
3 Boyle v. United States, 556 U.S. 938, 950-51 (2009) (“‘We have repeatedly refused to adopt narrowing constructions
of RICO in order to make it conform to a preconceived notion of what Congress intended to proscribe[]’. . . declining
to read ‘an organized crime limitation into RICO’s pattern concept’ . . . [and] rejecting the view that RICO provides a
private right of action ‘only against defendants who had been convicted on criminal charges, and only where there had
occurred a racketeering injury.’.” (quoting Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 660 (2008); Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 481 (1985); and H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 244 (1989))).
4 “To avoid classifying defendants according to such ancillary characteristics as group association and national origin,
the Act basically says ‘racketeer is as racketeer does’ and then tries to define what a racketeer does indeed do.” Andrew
P. Bridges, Private RICO Litigation Based Upon “Fraud” in the Sale of Securities, 18 GA. L. REV. 43, 49 (1983); see
also, Gerard E. Lynch, RICO: The Crime of Being a Criminal: Parts I & II, 87 COLUM. L. REV. 661, 686-88 (1987).
5 Gerard E. Lynch, RICO: The Crime of Being a Criminal, Parts III & IV, 87 COLUM. L. REV. 920, 938-39 (1987); G.
Robert Blakey & Brian Gettings, Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts—Criminal
and Civil Remedies, 53 TEMP. L. Q. 1009, 1021 n.71 (1980) (“RICO is not a criminal statute: it does not make criminal
conduct that before its enactment was not already prohibited, since its application depends on the existence of
‘racketeering activity’ that violates an independent criminal statute.”).
6 The statute describes these underlying offenses as “racketeering activities.” See 18 U.S.C. § 1961(1) (defining
“racketeering activity” to mean “any act of threat involving” specified state offenses, any “act which is indictable
under” specified federal statutes, and certain federal “offenses”). They are often referred to as “predicate offenses.”
RJR Nabisco, Inc. v. Eur. Cmty, 136 S. Ct. 2090, 2096 (2016) (“RICO is founded on the concept of racketeering
activity. The statute defines racketeering activity to encompass dozens of state and federal offenses known in RICO
parlance as predicates.”); Eller v. EquiTrust Life Ins. Co., 778 F.3d 1089, 1092 (9th Cir. 2015) (“A RICO claim
requires a racketeering activity (known as predicate acts).”).
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(5) through
(a) the collection of an unlawful debt, or
(b) the patterned commission of various state and federal crimes.7
RICO violations subject the offender to a range of criminal penalties: (a) forfeiture of any
property acquired through a RICO violation and of any property interest in the enterprise
involved in the violation, and (b) imprisonment for not more than 20 years, or life if one of the
predicate offenses carries such a penalty, and/or a fine of not more than the greater of twice of
amount of gain or loss associated with the offense or $250,000 for individuals and $500,000 for
organizations.8 RICO shares predicate offenses with the federal money laundering statute9 and to
a limited extent with the Travel Act,10 so that conduct constituting a RICO violation or a RICO
predicate offense violation may also trigger criminal liability under the Travel Act and money
laundering provisions. Federal law also features a kind of RICO-enterprise’s “hitman” offense
that outlaws committing various crimes of violence at the behest of a RICO enterprise.11
RICO violations may also subject the offender to civil liability. The courts may award anyone
injured in his business or property by a RICO violation treble damages, costs and attorneys’

7 In exact terms, 18 U.S.C. § 1962 declares the following:
“(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of
racketeering activity or through collection of an unlawful debt in which such person has participated as a principal
within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such
income, or the proceeds of such income, in acquisition of any interest in, or the establishment 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
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 of
racketeering 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 pattern of racketeering activity or through collection of an unlawful
debt to acquire or maintain, directly or indirectly, 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 activities 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.”
8 Id. §§ 1963, 3571.
9 Id. § 1956(c)(7)(A) (“the term ‘specified unlawful activity’ means – (A) any act or activity constituting an offense
listed in section 1961(1) of this title . . .”); id. § 1957(f)(3) (“the term[] ‘specified unlawful activity’ . . . shall have the
meaning given th[is] term[] in section 1956 of this title.”).
10 Id. § 1952(b) (“As used in this section (i) ‘Unlawful activity’ means (1) ant business enterprise involving gambling
… narcotics or controlled substances … (2) extortion, bribery, or arson … or (3) any act which is indictable … under
section 1956 or 1957 of this title ….”).
11 Id. § 1959(a) (“Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay,
anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance
to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims,
assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a
crime of violence against any individual in violation of the laws of any State or the United States, or attempts or
conspires so to do, shall be punished . . .”). The full text of 18 U.S.C. § 1959, with accompanying penalties, appears in
Appendix A).
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fees,12 and may enjoin RICO violations, order divestiture, dissolution or reorganization, or restrict
an offender’s future professional or investment activities.13
The RICO provisions also provide (1) for service of process in RICO criminal and civil cases,
and for venue in civil cases;14 (2) for expedited judicial action in certain RICO civil cases brought
by the United States;15 (3) for in camera proceedings in RICO civil cases initiated by the United
States;16 and (4) for the Department of Justice’s use of RICO civil investigative demands.17 RICO
prosecutions and civil actions have been attacked on a host constitutional grounds and have
generally survived.18
II. A Closer Look at the Elements
A. Any person
Any person may violate RICO.19 The “person” need not be a mobster or even a human being;
“any individual or entity capable of holding a legal or beneficial interest in property” will do.20
Although the “person” and the “enterprise” must be distinct in the case of a subsection 1962(c)
violation (a person, employed by an enterprise, conducting the enterprise’s activities through
racketeering activity),21 a corporate entity and its sole shareholder are sufficiently distinct to
satisfy the enterprise and person elements of a subsection (c) violation.22 Conversely, the “person”
and “enterprise” need not be distinct for purposes of subsection 1962(a) (investing the
racketeering activity proceeds in an enterprise) or subsection 1962(b) (acquiring or maintaining
an enterprise through racketeering activity) violations.23

12 Id. § 1963(c).
13 Id. § 1964(a).
14 Id. § 1965.
15 Id. § 1966.
16 “In any proceeding ancillary to or in any civil action instituted by the United States under this chapter the
proceedings may be open or closed to the public at the discretion of the court after consideration of the rights of
affected persons.” Id. § 1967.
17 Id. §1968. The civil investigative demand process, borrowed from antitrust law like so many of the other features of
RICO, permits the Attorney General to demand the production of documentary evidence from anyone prior to the
initiation of civil or criminal RICO investigation.
18 The challenges, ranging from Article III forfeiture issues to questions of Eighth Amendment cruel and unusual
punishment questions, are discussed toward the end of this report.
19 Id. § 1962(a), (b), (c), (d).
20 Id. § 1961(3).
21 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001) (“[U]nder § 1962(c) one must allege and prove
the existence of two distinct entities: (1) a ‘person’ and (2) an enterprise. . . . The Act says it applies to ‘person[s]’ who
are ‘employed by . . . the enterprise.’ In ordinary English one speaks of . . . being employed by . . . others not
oneself.”); CGC Holding Co., LLC v. Hutchens, 974 F.3d 1201, 1212 (10th Cir. 2020); Cisneros v. Petland, Inc., 972
F.3d 1204, 1215 (11th Cir. 2020); U1it4less, Inc. v. Fedex, Inc., 871 F.3d 199, 205 (2d Cir. 2017); United States v.
Bergrin, 650 F.3d 257, 266 (3d Cir. 2011); Abraham v. Singh, 480 F.3d 351, 357 (5th Cir. 2007); Living Designs, Inc.
v. E.I. DuPont de Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005); United States v. London, 66 F.3d 1227, 1244-
45 (1st Cir. 1995).
22 Cedric Kushner Promotions, Ltd., 533 U.S. at 163; CGC Holding Co., LLC, 974 F.3d at 1212; Ray v. Spirit Airlines,
Inc., 836 F.3d 1340, 1345 (11th Cir. 2016).
23 Churchill Village, L.L.C. v. General Electric, 361 F.3d 566, 574 (9th Cir. 2004) (“Churchill has pleaded non-
frivolous claims under § 1962(a) and (b). We have not required that the RICO ‘person’ and ‘enterprise’ be distinct in
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Even though governmental entities may constitute a corrupted RICO enterprise24 or in some
instances the victims of a RICO offense,25 they are not considered “persons” capable of
committing a RICO violation either because a governmental entity does not have mens rea
capacity or by virtue of sovereign immunity.26
B. Conduct
1. Invest or Use
RICO addresses four forms of illicit activity reflected in the four subsections of section 1962: (a)
acquiring or operating an enterprise using racketeering proceeds; (b) controlling an enterprise
using racketeering activities; (c) conducting the affairs of an enterprise using racketeering
activities; and (d) conspiring to so acquire, control, or conduct.
The first, 18 U.S.C. 1962(a), was designed as something of a money laundering provision.27 “The
essence of a violation of §1962(a) is not commission of predicate acts but investment of
racketeering income.”28 Section 1962(a), which has been described as the most difficult to
prove,29 has several elements. Under its provisions, it is unlawful for
(1) any person

actions under these subsections.”); Gentry v. Resolution Trust Corp., 937 F.2d 899, 907 (3d Cir. 1991); In re Managed
Care Litig., 150 F. Supp. 2d 1330, 1351 (S.D. Fla. 2001).
24 United States v. Shamah, 624 F.3d 449, 454-55 (7th Cir. 2010) (police department); United States v. Urban, 404 F.3d
754, 770-71 (3d Cir. 2005) (city department); United States v. Cianci, 378 F.3d 71, 83 (1st Cir. 2004) (mayor’s office);
Michalowski v. Rutherford, 82 F. Supp. 3d 775, 785 (E.D. Ill. 2015) (state agency); Ferluga v. Eickhoff, 408 F. Supp.
2d. 1153, 1162 (D. Kan. 2006) (municipality).
25 County of Oakland v. City of Detroit, 866 F.2d 839, 851 (6th Cir. 1989); Illinois Department of Revenue v. Phillips,
771 F.2d 312, 316-17 (7th Cir. 1985). The United States, however, is not a “person” who may bring a suit for treble
damages under 18 U.S.C. § 1964(c). Chevron Corp. v. Donziger, 833 F.3d 74, 138 (2d Cir. 2016).
26 Ivanenko v. Yanukovich, 995 F.3d 232, 240 (D.C Cir. 2021) (Foreign Sovereign Immunities Act precludes suit);
Abcarian v. Levine, 972 F.3d 1019, 1027 (9th Cir. 2020) (“[G]overnment entities are incapable of forming a malicious
intent.”); Gil Ramirez Group, LLC v. Houston Independent School District, 786 F.3d 400, 411-12 (5th Cir. 2015)
(“RICO requires demonstrating an underlying criminal act, which entails a mens rea requirement that a government
entity cannot form.”); Brown v. Nationsbank Corp., 188 F.3d 579, 587 (5th Cir. 1999) (Federal Bureau of
Investigation) (“[A] federal agency is not chargeable, indictable, or punishable for violations of state or federal criminal
provisions.”); Gentry, 937 F.2d at 914 (municipal corporation); Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991)
(Federal Insurance Administration); Bloch v. Executive Office of the President, 164 F. Supp. 3d 841, 856 (E.D. Va.
2016) (federal agency); BEG Investments, LLC v. Alberti, 85 F. Supp. 3d 13, 28-30 (D.D.C. 2015) (D.C. Alcohol
Beverage Control Bd.); Naples v. Stefanelli, 972 F. Supp. 2d 373, 389 (E.D.N.Y. 2013) (Suffolk Cty, N.Y.).
27 Brittingham v. Mobil Corp., 943 F.2d 297, 303 (3d Cir. 1991) (citing 116 Cong. Rec. 35199 (1970) (remarks of Rep.
St. Germain), 116 Cong. Rec. 607 (1970) (remarks of Sen. Byrd), and 115 Cong. Rec. 6993 (1969) (remarks of Sen.
Hruska)), abrogated on other grounds, Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., Inc., 46 F.3d 258 (3d Cir.
1995) (en banc); Sadighi v. Daghighfekr, 36 F. Supp. 2d 279, 286 (D.S.C. 1999). RICO predates 18 U.S.C. §§ 1956,
1957, the principal federal money laundering statutes, by close to a decade and a half.
28 Gristede’s Foods, Inc. v. Unkechauge Nation, 532 F. Supp. 2d 439, 446 (E.D.N.Y. 2007) (quoting, Ouaknine v.
MacFarlane, 897 F.2d 75, 83 (2d Cir. 1990)); see also, Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 321 (2d Cir.
2011) (“Subsection (a), in contrast, focuses the inquiry on conduct different from the conduct constituting the pattern of
racketeering activity. After there have been sufficient predicate acts to constitute such a pattern, what is forbidden by
subsection (a) is the investment or use of the proceeds of that activity to establish or operate a commerce-affecting
enterprise.”).
29 BCCI Holdings (Lux.) S.A. v. Khalil, 56 F. Supp. 2d 14, 63 (D.D.C. 1999), aff’d in part, rev’d in part, 214 F.3d 168
(D.C. Cir. 2000); G. Robert Blakey & Ronald Goldstock, On the Waterfront: RICO and Labor Racketeering, 17 AM.
CRIM. L. REV. 341, 356 (1980).
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(2) who is liable as a principal
(a) in the collection of an unlawful debt or
(b) in a pattern of predicate offenses
(3) to use or invest
(4) the income from such misconduct
(5) to acquire, establish or operate
(6) an enterprise in or affecting commerce.30
The “person,” the pattern of predicate offenses, and the enterprise elements are common to all of
the subsections. For purposes of 1962(a), however, a legal entity that benefits from the offense
may be both the “person” and the “enterprise.”31 The person must have committed usury or a
pattern of predicate offenses or aided and abetted in their commission,32 have received income
that would not otherwise have been received as a result, and used those proceeds to acquire or
operate an enterprise in or whose activities have an impact on interstate or foreign commerce.33
That is, “[t]o state a claim under 18 U.S.C. § 1962(a), Plaintiffs must allege that: (1) ‘the
Defendants derived income [through the collection of an unlawful debt; [and] (2) the income was
used or invested, directly or indirectly, in the establishment or operation; (3) of an enterprise; (4)
which is engaged in or the activities of which affect interstate or foreign commerce.’”34
2. Acquire or Maintain
The second proscription, 18 U.S.C. 1962(b), is much the same, except that it forbids acquisition
or control of an enterprise through the predicates themselves rather than through the income
derived from the predicates. It makes it unlawful for
(1) any person

30 18 U.S.C. § 1962(a); N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 202 (5th Cir. 2015);
United States v. Vogt, 910 F.2d 1184, 1194 (4th Cir. 1990); Brice v. Plain Green, LLC, 372 F. Supp. 3d 955, 984 (N.D.
Cal. 2019).
More precisely, the subsection declares, “(a) It shall be unlawful for any person who has received any income derived,
directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such
person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest,
directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the
establishment 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 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 of racketeering 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.” 18 U.S.C. § 1962(a).
31 Churchill Village, L.L.C. v. General Electric, 361 F.3d 566, 574 (9th Cir. 2004) (“Where a corporation engages in
racketeering activities and is the direct or indirect beneficiary of the pattern of racketeering activity, it can be both the
‘person’ and the ‘enterprise’ under section 1962(a)”); Gentry v. Resolution Trust Corp., 937 F.2d 899, 907 (3d Cir.
1991); Downing v. Halliburton & Associates, Inc., 812 F. Supp. 1175, 1178 (M.D. Ala. 1993), aff’d without written
op., 13 F.3d 410 (11th Cir. 1995).
32 Brady v. Dairy Fresh Products Co., 974 F.2d 1149, 1152 (9th Cir. 1992); United States v. Wyatt, 807 F.2d 1480,
1482 (9th Cir. 1987).
33 National Organization for Women, Inc. v. Scheidler, 968 F.2d 612, 625 (7th Cir. 1992), rev’d on other grounds, 510
U.S. 249 (1994); In re Burzynski, 989 F.2d 733, 744 (5th Cir. 1993); Ideal Steel Supply Corp. v. Anza, 373 F.3d 251,
264 (2d Cir. 2004), rev’d on other grounds, 547 U.S. 451 (2006); Kerrigan v. ViSalus, Inc., 112 F. Supp. 3d 580, 610-
11 (E.D. Mich. 2015); Johnson v. GEICO Cas. Co., 516 F. Supp. 2d 351, 361 (D. Del. 2007).
34 Gibbs v. Haynes Inv., LLC, 368 F. Supp. 3d 901, 929-30 (E.D. Va. 2019) (quoting Smithfield Foods, Inc. v. United
Food & Commercial Workers Int’l Union et al., 633 F. Supp. 2d 214, 222 (E.D. Va. 2008)).
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(2) to acquire or maintain an interest in or control of
(3) a commercial enterprise
(4) through
(a) the collection of an unlawful debt or
(b) a pattern of predicate offenses.35
As in the case of subsection 1962(a), the “person” and the “enterprise” may be one and the
same.36 There must be a nexus between the predicate offenses and the acquisition of control.37
Exactly what constitutes “interest” or “control” is a case-by-case determination. The defendant
must be shown to have played some significant role in the management of the enterprise, but a
showing of complete control is unnecessary.38 In summary as one court explained, “To establish a
violation of § 1962(b), Plaintiffs musts allege that: ‘(1) the Defendants engaged in [collection of
an unlawful debt]; (2) in order to acquire or maintain, directly or indirectly; (3) any interest or
control over an enterprise; (4) which is engaged in, or the activities of which affect interstate or
foreign commerce.’”39
3. Conduct of Affairs
Subsection 1962(c) makes it unlawful for
(1) any person,
(2) employed by or associated with,
(3) a commercial enterprise
(4) to conduct or participate in the conduct of the enterprise’s affairs
(5) through
(a) the collection of an unlawful debt or
(b) a pattern of predicate offenses.40

35 18 U.S.C. § 1962(b) (“It shall be unlawful for any person through a pattern of racketeering activity or through
collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise
which is engaged in, or the activities of which affect, interstate or foreign commerce.”); Tal v. Hogan, 453 F.3d 1244,
1268 (10th Cir. 2006); Advocacy Organization for Patients and Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 321-
22 (6th Cir. 1999).
36 Churchill Village, L.L.C., 361 F.3d 566, 574 (9th Cir. 2004); Landry v. Air Line Pilots Ass’n, 901 F.2d 404, 425 (5th
Cir.1990); Gentry v. Resolution Trust Corp., 937 F.2d 899, 907 (3d Cir. 1991); Whaley v. Auto Club Ins. Ass’n, 891 F.
Supp. 1237, 1241-242 (E.D. Mich. 1995).
37 Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003), rev’d on other grounds, Odom v. Microsoft Corp.,
486 F.3d 541, 551 (9th Cir. 2007) (en banc); Advocacy, 176 F.3d at 329; Banks v. Wolk, 918 F.2d 418, 421 (3d Cir.
1990); Andrews Farms v. Calcot, Ltd., 527 F. Supp. 2d 1239, 1256 (E.D. Cal. 2007).
38 Tal, 453 F.3d at 1268-269 (“‘Interest in or control of’ requires more than a general interest in the results of its
actions, or the ability to influence the enterprise through deceit ... Rather, it requires some ownership of the enterprise
or an ability to exercise dominion over it”); Ikuno v. Yip, 912 F.2d 306, 310 (9th Cir. 1990) (citing Sutliff, Inc. v.
Donovan Co., 727 F.2d 648, 653 (7th Cir. 1984), and Cincinnati Gas & Elec. Co. v. Gen. Elec. Co., 656 F. Supp. 49, 85
(S.D. Ohio 1986)); Nafta v. Feniks Intern’l House of Trade (USA), Inc., 932 F. Supp. 422, 428 (E.D.N.Y.1996); Griffin
v. NBD Bank, 43 F. Supp. 2d 780, 791-92 (W.D. Mich. 1999) (includes the control evidenced by the ability to select
one or more of members of a corporation’s board of directors). Control may also be indirect as for example where the
defendant exercises a measure of control over a subsidiary by virtue of his control over its parent organization. BCCI
Holding (Lux.) S.A. v. Khalil, 56 F. Supp. 2d 14, 51 (D.D.C. 1999), aff’d in part, rev’d in part, 214 F.3d 168 (D.C. Cir.
2000).
39 Gibbs v. Stinson, 421 F. Supp. 3d 267, 311 (E.D. Va. 2019) (quoting Smithfield Foods, Inc. v. United Food &
Commercial Workers Int’l Union et al., 633 F. Supp. 2d 214, 222 (E.D. Va. 2008)); see also Sarpolis v. Tereshko, 26 F.
Supp. 3d 407, 429-30 (E.D. Pa. 2014).
40 “(c) 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 commerce, to conduct, or participate, directly or indirectly, in the conduct of such
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Subsection 1962(c) is the most common substantive basis for RICO prosecution or civil action.41
Although on its face subsection 1962(c) might appear to be less demanding than subsections
1962(a) and (b), the courts have not always read it broadly. Thus, in any charge of a breach of its
provisions, the “person” and the “enterprise” must ordinarily be distinct.42 A corporate entity and
its sole shareholder, however, are sufficiently distinct for purposes of subsection 1962(c).43
The Supreme Court has identified a managerial stripe in the “conduct or participate in the
conduct” element of subsection 1962(c) under which only those who direct the operation or
management of the enterprise itself satisfy the “conduct” element.44 Liability is not limited to the
“upper management” of an enterprise, but extends as well to those within the enterprise who
exercise broad discretion in carrying out the instructions of upper management.45 Conviction
requires neither an economic predicate offense nor a predicate offense committed with an
economic motive.46

enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c).
Muskegan Hotels, LLC v. Patel, 986 F.3d 692, 698 (7th Cir. 2021) (“To state a claim under § 1962(c), the complaint
must allege that [the defendant] engaged in the (1) conduct (2) of an enterprise (3) through a pattern of racketeering
activity or collection of an unlawful debt.” (citing Salinas v. United States, 522 U.S. 52, 62 (1997))); Molina-Aranda v.
Black Magic Enterprises, L.L.C., 983 F.3d 779, 785 (5th Cir. 2020) (quoting Sedima, S.P.R.L. v. Imrex Co.473 U.S.
479, 496 (1985)) (“To state a claim under § 1962(c), a plaintiff must adequately plead that the defendant engaged in
‘(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.’”); United States v. Fowler, 535 F.3d
408, 418 (6th Cir. 2008) (“A substantive RICO charge requires the Government to prove: (1) the existence of an
enterprise which affects interstate or foreign commerce; (2) the defendant’s association with the enterprise; (3) the
defendant’s participation in the conduct of enterprise’s affairs; and (4) that the participation was through a pattern of
racketeering activity.”); see also CGC Holding Co., LLC v. Hutchens, 974 F.3d 1201, 1212 (10th Cir. 2020); United
States v. Godwin, 765 F.3d 1306, 1320 (11th Cir. 2014); Crest Const. II, Inc. v. Doe, 660 F.3d 346, 353 (8th Cir.
2011); United States v. Brandao, 539 F.3d 44, 50-1 (1st Cir. 2008); Cordero v. TransAmerica Annuity Service Corp.,
452 F. Supp. 3d 1292, 1303 (S.D. Fla. 2020); Brown v. Knoxville HMA Holding, LLC, 447 F. Supp. 3d 639, 645
(M.D. Tenn. 2020).
41 Randy D. Gordon, Crimes That Count Twice: A Reexamination of RICO’s Nexus Requirements Under 18 U.S.C.
§§1962(c) and 1964(c), 32 VT. L. REV. 171, 173 (2007).
42 RJR Nabisco, Inc. v. Eur. Cmty, 136 S. Ct. 2090, 2104 (2016) (citing Cedric Kushner Promotions, Ltd. v. King, 533
U.S. 158, 161 (2001)); Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 883 (10th Cir. 2019); Bible v. United
Student Aid Funds, Inc., 799 F.3d 633, 655 (7th Cir. 2015); N. Cypress Med. Ctr. v. Cigna Healthcare, 781 F.3d 182,
202 (5th Cir. 2015); In re ClassicStar Mare Lease Litig., 727 F.3d 473, 490 (6th Cir. 2013); City of New York v.
Smokes-Spirits.Com, Inc., 541 F.3d 425, 446-47 (2d Cir. 2008), rev’d on other grounds sub nom., Hemi Group v. City
of New York, 559 U.S. 1, 11 (2010); Myers v. Provident Life and Accident Ins. Co., 472 F. Supp. 3d 1149, 1172 (M.D.
Fla. 2020); Compound Property Management LLC v. Build Realty, Inc., 462 F. Supp. 3d 839, 856 (S.D. Ohio 2020).
43 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001).
44 Reves v. Ernst & Young, 507 U.S. 170, 184-85 (1993); see also Muskegan Hotels, LLC v. Patel, 986 F.3d 692, 698
(7th Cir. 2021); United States v. Rodriguez-Torres, 939 F.3d 16, 28 (1st Cir. 2019) (“Prosecutors also had to prove that
the defendant had some part in directing [the enterprise]. . . .’” (quoting Reves, 507 U. S. at 184)); D’Addario v.
D’Addario, 901 F.3d 80, 103 (2d Cir. 2018).
45 Muskegan Hotels, 986 F.3d at 698 (“This operation-or-management requirement does not necessarily limit the scope
of liability to an enterprise’s upper management. Lower-rung participants and even third-party outsiders can be liable,
provided they play a part in operating or managing the enterprise. . . . But the law is equally clear that the operation-or-
management requirement is not met through the mere provision of professional services to the alleged racketeering
enterprise.”); Rodriguez-Torres, 939 F.3d at 28; Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 674-75 (5th Cir. 2015):
United States v. Godwin, 765 F.3d 1306, 1320 (11th Cir. 2014); Ouwinga v. Benistar 419 Plan Services, Inc., 694 F.3d
783, 791-92 (6th Cir. 2012).
46 National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256-61 (1994).
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4. Conspiracy
Conspiracy under subsection 1962(d) is
(1) the agreement of
(2) two or more
(3) to invest in, acquire, or conduct the affairs of
(4) a commercial enterprise
(5) in a manner which violates 18 U.S.C. 1962(a), (b), or (c).47
The heart of the crime lies in the agreement rather than any completed, concerted violation of the
other three RICO subsections.48 Unlike the general conspiracy statute, RICO conspiracy is
complete upon the agreement, even if none of the conspirators ever commit an overt act toward
the accomplishment of its criminal purpose.49 Contrary to the view once held by some of the
lower courts, there is no requirement that a defendant commit or agree to commit two or more
predicate offenses himself.50 It is enough that the defendant, in agreement with another, intended
to further an endeavor which, if completed, would satisfy all of the elements of a RICO
violation.51 In some circuits, both the government and private litigants may be required to prove
the existence of a RICO qualified enterprise.52

47 18 U.S.C. § 1962(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”); United States v. Onyeri, 998 F.3d 274, 280 (5th Cir. 2021) (“The elements of a RICO
conspiracy are: (1) an agreement between two or more people to commit a substantive RICO offense; and (2)
Knowledge of and agreement to the overall objective of the RICO offense.”); United States v. Brown, 973 F.3d 667,
682 (7th Cir. 2020) (“To prove a RICO conspiracy [to violate §1962(c)], ‘the government must show (1) an agreement
to conduct or participate in the affairs (2) of an enterprise (3) through a pattern of racketeering activity.’” (quoting
United States v. Olson, 450 F.3d 655, 664 (7th Cir. 2006))); United Sates v. Williams, 974 F.3d 320, 369-70 (3d Cir.
2020).
48 United States v. Tisdale, 980 F.3d 1089, 1096 (6th Cir. 2020) (quoting Salinas v. United States, 522 U.S. 52, 63
(1997)) (“To prove guilt of a RICO conspiracy like this one, the government had to show that [the defendant]
‘adopt[ed] the goal of furthering or facilitating the criminal endeavor.’”); United States v. Delgado, 972 F.3d 63, 79 (2d
Cir. 2020) (“Importantly, the crime of RICO conspiracy ‘centers on the act of agreement. . . . [T]he government ‘need
only prove that the defendant knew of, and agreed to, the general criminal objective of a jointly undertaken scheme.’”
(quoting United States v. Arrington, 941 F.3d 24, 36-7 (2d Cir. 2019))).
49 Salinas v. United States, 522 U.S. 52, 63 (1997); Williams, 974 F.3d at 368; United States v. Wilkerson, 966 F.3d
828, 841 (D. C. Cir. 2020); United States v. Ruan, 966 F.3d 1101, 1147 (11th Cir. 2020); United States v. Leoner-
Aguirre, 939 F.3d 310, 317 (1st Cir. 2019); see also Salinas, 522 U.S. at 65 (“[A] conspiracy may exist and be
punished whether or not the substantive crime ensures, for the conspiracy is a distinct evil, dangerous to the public, and
so punishable in itself.”).
50 Id., 522 U.S. at 65-6; United States v. Millán-Machuca, 991 F.3d 7, 18 1st Cir. 2021); Williams, 974 F.3d at 369;
Brown, 973 F.3d at 684.
51 Salinas, 522 U.S. at 65; Millán-Machuca, 991 F.3d at 18 (quoting Salinas, 522 U.S. at 65); United States v.
Rosenthal, 805 F.3d 523, 530 (5th Cir. 2015) (“The elements of a conspiracy under §1962(d) are simply (1) that two or
more people agreed to commit a substantive RICO offense and (2) that the defendant knew of and agreed to the overall
objective of the RICO offense.”); United States v. Cornell, 780 F.3d 616, 621 (4th Cir. 2015); United States v. Lawson,
535 F.3d 434, 445 (6th Cir. 2008); United States v. Fernandez, 388 F.3d 1119, 1228 (9th Cir. 2004); United States v.
Warneke, 310 F.3d 542, 547-48 (7th Cir. 2003).
52 Bucher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020) (“To state a claim for RICO conspiracy under § 1962(d), the
plaintiff must also allege the existence of an agreement to violate RCO’s substantive provisions.”) (quotation marks
omitted); Williams, 974 F.3d at 367-68 (“The fountainhead of any criminal conspiracy is the agreement . . . .”); United
States v. Arrington, 941 F.3d 24, 36-7 (2d Cir. 2019) (“To prove a RICO conspiracy, the Government need not
establish the existence of an enterprise, or that the defendant committed any predicate act. It need only prove that the
defendant knew of, and agreed to, the general criminal objective of a jointly undertaken scheme.”); United States v.
Cornelius, 696 F.3d 1307, 1317 (10th Cir. 2012); United States v. Ramirez-Rivera, 800 F.3d 1, 18 (1st Cir. 2015) (“For
a defendant to be found guilty of conspiring to violate RICO, the government prove (1) the existence of an enterprise
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A conspirator is liable not only for the conspiracy but for any foreseeable substantive offenses
committed by any of the conspirators in furtherance of the common scheme, until the objectives
of the plot are achieved, abandoned, or the conspirator withdraws.53 The statute of limitations for
a RICO conspiracy runs until the scheme’s objectives are accomplished or abandoned, or until the
defendant withdraws.54 As a general rule, “[t]o withdraw from a conspiracy, an individual must
take some affirmative action either by reporting to authorities or communicating his intentions to
his coconspirators.”55 The individual bears the burden of showing he has done so.56
C. Pattern of Racketeering Activity
1. Predicate Offenses
The heart of most RICO violations is a pattern of racketeering activities, that is, the patterned
commission of two or more designated state or federal crimes. The list of state and federal crimes
upon which a RICO violation may be predicated includes the following:
(A) any act or threat, chargeable under state law and punishable by imprisonment for more
than one year, involving—
murder
arson
kidnapping
bribery
gambling
extortion
robbery

dealing in obscene material, or
dealing in controlled substances or listed chemicals;

(B) any violation of—
18 U.S.C. § 201 (bribery of federal officials)
18 U.S.C. § 224 (bribery in sporting contests)
18 U.S.C. §§ 471, 472, 473 (counterfeiting)
18 U.S.C. § 659 (theft from interstate shipments) (if felonious)
18 U.S.C. § 664 (theft from employee benefit plan)

18 U.S.C. §§ 891-894 (loansharking)
18 U.S.C. § 1028 (fraudulent identification documents) (if for profit)
18 U.S.C. § 1029 (computer fraud)
18 U.S.C. § 1084 (transmission of gambling information)
18 U.S.C. § 1341 (mail fraud)

affecting interstate or foreign commerce. . . .”); United States v. Cornell, 780 F.3d 616, 621 (4th Cir. 2015) (“To satisfy
§1962(d), the government must prove that an enterprise affecting interstate commerce existed. . . .”).
53 Pinkerton v. United States, 328 U.S. 640, 646-47 (1946); Williams, 974 F.3d at 368; United States v. Portillo, 969
F.3d 144, 166 (5th Cir. 2020); United States v. McGill, 815 F.3d 917-18 (D.C. Cir. 2016); United States v. Christensen,
801 F.3d 970, 999-1000 (9th Cir. 2015); United States v. Garcia, 754 F.3d 460, 470-71 (7th Cir. 2014); see also, Smith
v. United States, 568 U.S. 106, 111 (2013) (“Withdrawal terminates the defendant’s liability for postwithdrawal acts of
his co-conspirators, but he remains guilty of conspiracy.”).
54 United States v. Wilkerson, 966 F.3d 828, 840 (D.C. Cir. 2020) (“As the Supreme Court has explained, however, ‘the
offense in … conspiracy … continues until termination of the conspiracy or, as to a particular defendant, until the
defendant’s withdrawal.’ Put simply, ‘a defendant who has joined a conspiracy continues to violate the law through
every moment of the conspiracy’s existence.’” (quoting Smith, 568 U.S. at 113, 111)).
55 United States v. Bostick, 791 F.3d 127, 143-44 (D.C. Cir. 2015); United States v. Ilarraza, 963 F.3d 1, 10 (1st Cir.
2020); United States v. Harris, 695 F.3d 1125, 1136-137 (10th Cir. 2012).
56 Smith, 568 U.S. at 111; Williams, 974 F.3d at 368.
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18 U.S.C. § 1343 (wire fraud)
18 U.S.C. § 1344 (bank fraud)
18 U.S.C. § 1351 (fraud in foreign labor contracting),
18 U.S.C. § 1425 (procuring nationalization unlawfully)
18 U.S.C. § 1426 (reproduction of naturalization papers)
18 U.S.C. § 1427 (sale of naturalization papers)

18 U.S.C. §§ 1461-1465 (obscene matter)
18 U.S.C. § 1503 (obstruction of justice)
18 U.S.C. § 1510 (obstruction of criminal investigation)
18 U.S.C. § 1511 (obstruction of state law enforcement)
18 U.S.C. § 1512 (witness tampering)
18 U.S.C. § 1513 (witness retaliation)

18 U.S.C. §§ 1542, 1543, 1544, 1546 (passport or similar document fraud)
18 U.S.C. §§ 1581-1592 (peonage & slavery)
18 U.S.C. § 1831 (economic espionage)
18 U.S.C. § 1832 (theft of trade secrets)
18 U.S.C. § 1951 (Hobbs Act (interference with commerce by threat or violence)
18 U.S.C. § 1952 (Travel Act (interstate travel in aid of racketeering)
18 U.S.C. § 1953 (transportation of gambling paraphernalia)

18 U.S.C. § 1954 (bribery to influence employee benefit plan)
18 U.S.C. § 1955 (illegal gambling business)
18 U.S.C. §§ 1956, 1957 (money laundering)
18 U.S.C. § 1958 (murder for hire)
18 U.S.C. § 1960 (illegal money transmitters)

18 U.S.C. §§ 2251, 2251A, 2252, 2260 (sexual exploitation of children)
18 U.S.C. §§ 2312, 2313 (interstate transportation of stolen cars)
18 U.S.C. §§ 2314, 2315 (interstate transportation of stolen property)
18 U.S.C. §§ 2318-2320 (copyright infringement)
18 U.S.C. § 2321 (trafficking in certain motor vehicles or motor vehicle parts)
18 U.S.C. §§ 2341-2346 (contraband cigarettes)
18 U.S.C. §§ 2421-2424 (Mann Act)

(C) indictable violations of—
29 U.S.C. § 186 (payments and loans to labor organizations)
29 U.S.C. § 501(c) (embezzlement of union funds)

(D) any offense involving—
fraud connected with a case under title 11 (bankruptcy)
fraud in the sale of securities
felonious violations of federal drug law
(E) violation of the Currency and Foreign Transactions Reporting Act [31 U.S.C. §§ 5311-
5332]
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(F) violation (for profit) of the Immigration and Nationality Act, section 274 (bringing in and
harboring aliens), section 277 (helping aliens enter the U.S. unlawfully), or section 278
(importing aliens for immoral purposes), and
(G) violation of [a statute identified as a federal crime of terrorism in 18 U.S.C.
§ 2332b(g)(5)(B)]—
18 U.S.C. § 32 (destruction of aircraft or aircraft facilities)
18 U.S.C. § 37 (violence at international airports)
18 U.S.C. § 81 (arson within special maritime and territorial jurisdiction)
18 U.S.C. § 175 or 175b (biological weapons)
18 U.S.C. § 175c (variola virus)

18 U.S.C. § 229 (chemical weapons)
18 U.S.C. § 351(a), (b), (c), or (d) (congressional, cabinet, and Supreme Court
assassination and kidnaping)
18 U.S.C. § 831 (nuclear materials)
18 U.S.C. § 832 (participating in foreign nuclear program)
18 U.S.C. § 842(m) or (n) (plastic explosives)

18 U.S.C. § 844(f)(2) or (3) (arson and bombing of Government property risking or
causing death)
18 U.S.C. § 844(i) (arson and bombing of property used in interstate commerce)
18 U.S.C. § 930(c) (killing or attempted killing during an attack on a Federal facility with
a dangerous weapon)
18 U.S.C. § 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad)
18 U.S.C. § 1030(a)(1) (protection of computers)

18 U.S.C. § 1030(a)(5)(A)(damage to protected computers under § 1030(a)(4)(A)(i)(II)
through (VI))
18 U.S.C. § 1114 (killing or attempted killing of officers and employees of the United
States)
18 U.S.C. § 1116 (murder or manslaughter of foreign officials, official guests, or
internationally protected persons)
18 U.S.C. § 1203 (hostage taking)
18 U.S.C. § 1361 (destruction of government property)

18 U.S.C. § 1362 (destruction of communication lines, stations, or systems)
18 U.S.C. § 1363 (injury to buildings or property within special maritime and territorial
jurisdiction of the United States)
18 U.S.C. § 1366(a) (destruction of an energy facility)
18 U.S.C. § 1751(a), (b), (c), or (d) (presidential and presidential staff assassination and
kidnaping)
18 U.S.C. § 1992 (attacks on trains or mass transit)

18 U.S.C. §§ 2155-2156 (destruction of national defense materials, premises, or utilities)
18 U.S.C. § 2280 (violence against maritime navigation)
18 U.S.C. § 2280a (maritime safety)
18 U.S.C. § 2281 (violence against maritime fixed platforms)
18 U.S.C. § 2281 (additional offenses against maritime fixed platforms)
18 U.S.C. § 2332 (homicide and other violence against United States nationals occurring
outside of the United States)
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18 U.S.C. § 2332a (use of weapons of mass destruction)

18 U.S.C. § 2332b (acts of terrorism transcending national boundaries)
18 U.S.C. § 2332f (bombing public places and facilities)
18 U.S.C. § 2332g (anti-aircraft missiles)
18 U.S.C. § 2332h (radiological dispersal devices)
18 U.S.C. § 2332i (nuclear terrorism)
18 U.S.C. § 2339 (harboring terrorists)

18 U.S.C. § 2339A (providing material support to terrorists)
18 U.S.C. § 2339B (providing material support to terrorist organizations)
18 U.S.C. § 2339C (financing terrorism)
18 U.S.C. § 2339D (receipt of training from foreign terrorist organization)
18 U.S.C. § 2340A (torture)

21 U.S.C. § 960A (narco-terrorism)
42 U.S.C. § 2122 (atomic weapons)
42 U.S.C. § 2284 (sabotage of nuclear facilities or fuel)
49 U.S.C. § 46502 (aircraft piracy)
49 U.S.C. § 46504 (2d sentence) (assault on a flight crew with a dangerous weapon)

49 U.S.C. § 46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of
human life by means of weapons, on aircraft)
49 U.S.C. § 46506 (if homicide or attempted homicide is involved, application of certain
criminal laws to acts on aircraft)
49 U.S.C. § 60123(b) (destruction of interstate gas or hazardous liquid pipeline facility).57
Offenses “involving” controlled substance felonies are predicate offenses under 18 U.S.C. §
1961(1)(D). The Controlled Substances Act outlaws attempt and conspiracies to violate its felon
proscriptions.58 As a general rule, “predicate racketeering acts that are themselves conspiracies
may form the basis for a charge and eventual conviction under §1962(d).” 59 Consequently,
conspiracy to commit a controlled substance felony constitutes a RICO predicate offense even
under the RICO conspiracy provision. 60
To constitute “racketeering activity,” the predicate offense need only be committed; there is no
requirement that the defendant or anyone else have been convicted of a predicate offense before a
RICO prosecution or action may be brought.61 Conviction of a predicate offense, on the other

57 18 U.S.C. § 1961(1). Paragraph 1961(1)(G) simply states that the crimes listed in 18 U.S.C. § 2332b(g)(5)(B) (i.e.,
federal crimes of terrorism) are predicate offenses; thus, whenever a crime is added to subparagraph 2332b(g)(5)(B) it
becomes a RICO predicate offense, sub silentio.
58 21 U.S.C. § 846.
59 United States v. Rodriguez, 971 F.3d 1005, 1013-14 (9th Cir. 2020) (citing in accord First, Second, Third, Fifth,
Sixth, and Seventh Circuit decisions).
60 United States v. Wilkerson, 966 F.3d 828, 839 (D.C. Cir. 2020) (Several circuits have thus held that section
1961(1)(D) encompasses related conspiracy offenses. … We agree and now hold that a narcotics conspiracy offense
constitutes racketeering activity under section 1961(1)(D).”).
61 Sedima, S.P.L.R. v. Imrex Co., 473 U.S. 479, 488 (1985); American Chiropractic v. Trigon Healthcare, 367 F.3d
212, 233 (4th Cir. 2004). A civil RICO cause of action based on fraud in the purchase or sale of securities requires a
prior conviction, 18 U.S.C. 1964(c) (“… [E]xcept that no person upon any conduct that would have been actionable as
fraud in in the purchase or sale of securities to establish a violation of section 1962…”); Menzies v. Seyfarth Shaw LLP
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hand, does not preclude a subsequent RICO prosecution, nor is either conviction or acquittal a bar
to a subsequent RICO civil action.62
2. Pattern
The pattern of racketeering activities element of RICO requires (1) the commission of two or
more predicate offenses, (2) that the predicate offenses be related and not simply isolated events,
and (3) that they are committed under circumstances that suggest either a continuity of criminal
activity or the threat of such continuity.63
i. Predicates: The first element is explicit in section 1961(5): “‘Pattern of racketeering activity’
requires at least two acts of racketeering activity.” The two remaining elements, relationship and
continuity, flow from the legislative history of RICO. That history “shows that Congress indeed
had a fairly flexible concept of a pattern in mind. A pattern is not formed by sporadic activity. . . .
[A] person cannot be subjected to the sanctions [of RICO] simply for committing two widely
separate and isolated criminal offenses. Instead, the term ‘pattern’ itself requires the showing of a
relationship between the predicates and of the threat of continuing activity. It is this factor of
continuity plus relationship which combines to produce a pattern.”64
ii. Related predicates: The commission of predicate offenses forms the requisite related pattern if
the “criminal acts . . . have the same or similar purposes, results, participants, victims, or methods
of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated
events.”65

943 F.3d 328, 334 (7th Cir. 2019) (“[T]he bar in 1964(c) . . . requires asking whether the fraud Menzies alleged in his
complaint would be actionable under the securities laws.”); Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1249
(11th Cir. 2016); Lerner v. Coleman, 485 F. Supp. 3d 319, 333 (D. Mass. 2020) (“When it passed the Private Securities
Litigation Reform Act in 1995, ‘Congress meant not only to eliminate securities fraud as a predicate offense in a civil
RICO action, but also to prevent a plaintiff from pleading other specified offenses, such as mail or wire fraud, as
predicate acts under civil RICO if such offenses are based on conduct that would have been actionable as securities
fraud.’”).
62 McCarthy v. Pacific Loan, Inc., 629 F. Supp. 1102, 1108 (D. Haw. 1986); cf. Appley v. West, 832 F.2d 1021, 1024-
25 (7th Cir. 1987); see discussion of double jeopardy constitutional issue infra at 20.
63 H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 (1989); RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090, 2096-97
(2016); United States v. Millán-Machuca, 991 F.3d 7, 18 (1st Cir. 2021); United States v. Williams, 974 F.3d 320, 369
(3d Cir. 2020); Cisneros v. Petland, Inc., 972 F.3d 1204, 1216 (11th Cir. 2020); United States v. Vernace, 811 F.3d
609, 615 (2d Cir. 2016).
64 H.J., Inc., 492 U.S. at 239 (1989) (emphasis of the Court) (citing S. Rep. No. 617, 91st Cong., 1st Sess. at 158 (1969)
and 116 Cong. Rec. 18940 (1970) (remarks of Sen. McClellan)); Grubbs v. Sheakley Group, Inc., 807 F.3d 785, 804
(6th Cir. 2015); Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 659 (7th Cir. 2015); Stonebridge Collection,
Inc. v. Carmichael, 791 F.3d 811, 823 (8th Cir. 2015).
65 H.J., Inc., 492 U.S. at 240 (quoting, 18 U.S.C. 3575(e)); see also United States v. Stepanets, 989 F.3d 88, 107 (1st
Cir. 2021); Menzies v. Seyfarth Shaw, LLP, 943 F.3d 328, 337 (7th Cir. 2019); United States v. Pinson, 860 F.3d 152,
161 (4th Cir. 2017); United States v. Vernace, 811 F.3d 609, 615 (2d Cir. 2016); United States v. Henley, 766 F.3d
893, 907 (8th Cir. 2014); United States v. Godwin, 765 F.3d 1306, 1321 (11th Cir. 2014). There may be some question
whether the predicate offenses must relate to each other as well as to the enterprise. Compare United States v. Vernace,
811 F.3d at 615-16 (internal citations omitted) (“[P]redicate acts must be related to each other (‘horizontal’
relatedness), and they must be related to the enterprise (‘vertical relatedness’). Vertical relatedness requires that the
defendant was enabled to commit the offense solely because of his position in the enterprise or his involvement in or
control over the enterprise’s affairs, or because the offense related to the activities of the enterprise. It is not necessary,
however, that the offense be in furtherance of the enterprise’s activities for the offense to be relate the activities of the
enterprise. Further, the same or similar proof that establishes vertical relatedness may also establish horizontal
relatedness, because the requirements of horizontal relatedness can be established by linking each predicates act to
enterprise”); United States v. Henley, 766 F.3d at 907 with United States v. Fowler, 535 F.3d 408, 420 (6th Cir. 2008)
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iii. Continuity: The law recognizes continuity in two forms, pre-existing (“closed-ended”) and
anticipated (“open-ended”).66 The first is characterized by “a series of related predicates,
extending over a substantial period of time. Predicate acts extending over a few weeks or months
and threatening no future criminal conduct do not satisfy this requirement.”67 The second exists
when a series of related predicates has begun and, but for intervention, would be a threat to
continue in the future.68 The Supreme Court has characterized a pattern extending over a period of
time but which posed no threat of reoccurrence as a pattern with “closed-ended” continuity; and a
pattern marked by a threat of reoccurrence as a pattern with “open-ended continuity.”69
In the case of a “closed-ended” pattern, the lower courts have been reluctant to find predicate
activity extending over less than a year sufficient for the “substantial period[s] of time” required
to demonstrate continuity.70
Whether the threat of future predicate activity is sufficient to recognize an “open-ended” pattern
of continuity depends upon the nature of the predicate offenses and the nature of the enterprise.
“Though the number of related predicates involved may be small and they may occur close
together in time, the racketeering acts themselves include a specific threat of repetition extending
indefinitely into the future, and thus supply the requisite continuity. In other cases, the threat of
continuity may be established by showing that the predicate acts or offenses are part of an

(“It may be true that Fowler’s predicate acts are not directly interrelated with each other, but that is not required.
Instead, the predicate acts must be connected to the affairs and operations of the criminal enterprise”).
66 H.J., Inc., 492 U.S. at 242; see also Chin, 965 F.3d 41, 48 (1st Cir. 2020); Grubbs v. Sheakley Group, Inc., 807 F.3d
at 804; Stonebridge Collection, Inc. v. Carmichael, 791 F.3d at 823; United States v. Pierce, 785 F.3d 832, 838 (2d Cir.
2015).
67 H.J., Inc., 492 U.S. at 242.
68 Id. (emphasis added); United States v. Richardson, 167 F.3d 621, 626 (D.C. Cir. 1999) (“fortuitous interruption of
racketeering activity such as by arrest does not grant defendants a free pass to evade RICO charges.”).
69 H.J., Inc., 492 U.S. at 242; Chin, 965 F.3d at 48.
70 United States v. Stepanets, 989 F.3d 88, 108 (1st Cir. 2021) (“While the Supreme Court has made clear that it is not
enough to show that the acts extended over a few weeks or months, we have previously recognized that a twenty-one
month period is longer than what the Supreme Court has required.” (citing H.J., Inc. 492 U.S. at 242, and Efron v
Embassy Suites (P.R.), Inc., 223 F.3d 12, 17 (1st Cir. 2000)); Cisneros v. Petland, Inc., 972 F.3d 1204, 1216 (11th Cir.
2020) (“We measure a ‘substantial period of time’ in years, not in weeks. . . . ‘The overwhelming weight of case
authority suggest that nine months is not an adequate substantial period of time.’” (quoting Jackson v. BellSouth
Telecomm., 372 F.3d 1250, 1267 (11th Cir. 2004))); United States v. Pinson, 860 F.3d 152 163 (“These fragmented
schemes do not reveal a scope and persistence that poses a special threat to social wellbeing. . . . Indeed, we have
required much greater closed-ended time periods to establish a pattern of racketeering activity. See, e.g., GE Inv.
Private Placement Partners II v. Parker, 247 F.3d 543, 550-51 (4th Cir. 2001) (holding fraudulent conduct lasting 17
months did not establish closed-ended continuity); Flip Mortg. Corp. v. McElhone, 841 F.2d 531, 528 (4th Cir. 1988)
(holding fraudulent acts lasting seven years by single entity against single victim did not establish racketeering
pattern).”); Reich v. Lopez, 858 F.3d 55, 60 (2d Cir. 2017) (“As such, closed-ended continuity is primarily a temporal
concept, and it requires that the predicate acts extend over a substantial period of time. Predicate acts separated by only
a few months will not do; this Circuit generally requires that the crimes extend over at least two years.”); Grubbs v.
Sheakley Group, Inc., 807 F.3d 785, 804-5 (6th Cir. 2015) (predicate offenses over an 8-month period were not
sufficient to show closed-ended continuity); Stonebridge Collection, Inc. v. Carmichael, 791 F.3d 811, 823 (8th Cir.
2015) (emphasis added) (“Continuity can be shown by related acts continuing over a period of time last at least one
year (closed ended continuity), or by acts which by their very nature threaten repetition (open ended continuity)”);
United States v. Wilson, 605 F.3d 985, 1021 (D.C. Cir. 2010) (15 months, sufficient); Spool v. World Child
International Adoption Agency, 520 F.3d 178, 184 (2d Cir. 2008) (16 months, insufficient); Jennings v. Auto Meter
Products, Inc., 495 F.3d 466, 474-75 (7th Cir. 2007) (10 months, insufficient); North Bridge Associates, Inc. v. Boldt,
274 F.3d 38, 43 (1st Cir. 2001) (4 months, insufficient).
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ongoing entity’s regular way of doing business.”71 The threat “is generally presumed when the
enterprise’s business is primarily or inherently unlawful.”72
D. Collection of an Unlawful Debt
Collection of an unlawful debt may trigger RICO criminal and civil liability in either of two
ways. First, each of the substantive RICO offenses is predicated on either “a pattern of
racketeering activity” or upon the “collection of an unlawful debt.”73 Collection of an unlawful
debt appears to be the only instance in which the commission of a single predicate offense will
support a RICO prosecution or cause of action. No proof of pattern seems to be necessary.74
The predicate covers only the collection of usurious debts or unlawful gambling debts:
“[U]nlawful debt” means a debt (A) incurred or contracted in gambling activity which was
in violation of the law of the United States, a State or political subdivision thereof, or which
is unenforceable under State or Federal law in whole or in part as to principal or interest
because of the laws relating to usury, and (B) which was incurred in connection with the
business of gambling in violation of the law of the United States, a State or political
subdivision thereof, or the business of lending money or a thing of value at a rate usurious
under State or Federal law, where the usurious rate is at least twice the enforceable rate.75
Second, the collection of an unlawful debt, when coupled with the threat of harm, constitutes an
extortionate credit transaction (loan sharking), a separate criminal offense.76 This criminal offense
falls within the definition of racketeering activity77 and thus as a predicate offense may trigger
RICO liability when part of a “pattern of racketeering activity.”78

71 H.J., Inc., 492 U.S. at 242; Cisneros, 972 F.3d at 1216; United States v. Cadden, 965 F.3d 1, 16 (1st Cir. 2020)
(“There are at least two types of racketeering enterprises that, by their nature, extend into the future and therefore
demonstrate open-ended continuity: those that ‘involve a distinct threat of long-term racketeering activity, either
implicit or explicit’ and those where ‘the predicate acts or offenses are part of an ongoing entity’s regular way of doing
business.’” (quoting H.J., Inc., 492 U.S. at 242)); Menzies v. Seyfarth Shaw LLP, 943 F.3d 328, 337 (7th Cir. 2019);
Reich v. Lopez, 858 F.3d 55, 60 (2d Cir. 2017); Heinrich v. Waiting Angels Adoption Services, Inc., 668 F.3d 393, 411
n.2 (6th Cir. 2012); Abraham v. Singh, 480 F.3d 351, 355(5th Cir. 2007); GE Investment Private Placement Partners II
v. Parker, 247 F.3d 543, 549 (4th Cir. 2001).
72 Spool v. World Child International Adoption Agency, 520 F.3d at 185; cf., United States v. Burden, 600 F.3d 204,
219 (2d Cr. 2010).
73 E.g., 18 U.S.C. § 1962(a) (“It shall be unlawful for any person who has received any income derived . . . from a
pattern of racketeering activity or through collection of an unlawful debt . . . to use . . . any part of such income . . . in
acquisition of any enterprise. . . .”); subsections 1962(b) and (c) are similarly worded.
74 United States v. Grote, 961 F.3d 105, 119 (2d Cir. 2020); Goldenstein v. Repossessors Inc., 815 F.3d 142, 147-48 n.5
(3d Cir. 2016); United States v. Oreto, 37 F.3d 739, 751 (1st Cir. 1994); United States v. Aucoin, 964 F.2d 1492, 1495-
497 (5th Cir. 1992) (quoting dicta in H.J., Inc., 492 U.S. at 232 (1989)); Dillon v. BMO Harris Bank, N.A., 16 F. Supp.
3d 605, 618 (M.D.N.C. 2014); but see, Wright v. Shepard, 919 F.2d 665, 673 (11th Cir. 1990).
Oreto also rejected the argument to the effect that the equal protection clause precludes requiring proof of only a single
loansharking violation while demanding proof of the patterned commission of at least two violations for every other
predicate offense, 37 F.3d at 751-52 (“Congress could rationally have decided that collections of unlawful debt were
central to the evils at which RICO was directed. Accordingly, it could rationally have chosen to make guilt more easily
provable in unlawful debt cases than in cases involving other forms of racketeering activity.”).
75 18 U.S.C. 1961(6); e.g., United States v. Moseley, 980 F.3d 9, 17-26 (2d Cir. 2020); Home Orthopedics Corp. v.
Rodriguez, 781 F.3d 521, 528 n.8 (1st Cir. 2015); United States v. Lyons, 740 F.3d 702, 730 (1st Cir. 2014);
Community State Bank v. Strong, 651 F.3d 1241, 1259 (11th Cir. 2011) (usurious non-gambling debt).
76 18 U.S.C. §§ 891-896.
77 Id. § 1961.
78 E.g., United States v. Gjeli, 867 F.3d 418, 420 & n. 2 (3d Cir. 2017); Mitchell v. First Call Bail and Surety, Inc., 412
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E. Enterprise in or Affecting Interstate or Foreign Commerce
1. Enterprise
The statute defines “enterprise” to include “any individual, partnership, corporation, association,
or other legal entity, and any union or group of individuals associated in fact although not a legal
entity.”79 The enterprise may be devoted to entirely legitimate ends or to totally corrupt
objectives.80 It may be governmental as well as nongovernmental.81 As noted earlier, an entity
may not serve as both the “person” and the “enterprise” whose activities are conducted through a
pattern of racketeering activity for a prosecution under subsection 1962(c).82 No such distinction
is required, however, for a prosecution under either subsection 1962(a) (investing the racketeering
activity proceeds in an enterprise) or subsection 1962(b) (acquiring or maintaining an enterprise
through racketeering activity) violations.83 Even under subsection 1962(c), a corporate entity and
its sole shareholder are sufficiently distinct to satisfy the “enterprise” and “person” elements of a
subsection (c) violation.84
As for “associated in fact” enterprises, the Supreme Court in Boyle rejected the suggestion that
such enterprises must be “business-like” creatures, having discernible hierarchical structures,
unique modus operandi, chains of command, internal rules and regulations, regular meetings
regarding enterprise activities, or even a separate enterprise name or title.85 The statute demands
only “that an association-in-fact enterprise must have at least three structural features: a purpose,
relationships among those associated with the enterprise, and longevity sufficient to permit these
associates to pursue the enterprise’s purpose.”86

F. Supp. 3d 1208, 1226 (D. Mont. 2019).
79 18 U.S.C. § 1961(4); Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020).
80 United States v. Turkette, 452 U.S. 575, 580-93 (1981); United States v. Palacios, 677 F.3d 234, 248 (4th Cir. 2012);
United States v. Cianci, 378 F.3d 71, 83 (1st Cir. 2004).
81 United States v. Warner, 498 F.3d 666, 694 (7th Cir. 2007) (state); Cianci, 378 F.3d at 83 (mayor’s office); DeFalco
v. Bernas, 244 F.3d 286, 307-8 (2d Cir. 2001) (town); United States v. Massey, 89 F.3d 1433, 1440 (11th Cir. 1995)
(state court); Pelfresne v. Village of Rosemont, 22 F. Supp. 2d 756, 761-62 (N.D. Ill. 1998) (mayor’s office); cf. Salinas
v. United States, 522 U.S. 52 (1997) (sheriff’s office).
82 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001); Bible v. United Student Aid Funds, Inc., 799
F.3d 633, 655 (7th Cir. 2015); Abraham v. Singh, 480 F.3d 351, 357 (5th Cir. 2007); Living Designs, Inc. v. E.I.
Dupont de Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005); Branon v. Boatmen’s First National Bank, 153 F.3d
1144, 1146 (10th Cir. 1998); United States v. London, 66 F.3d 1227, 1244 (1st Cir. 1995).
83 Gentry v. Resolution Trust Corp., 937 F.2d 899, 907 (3d Cir. 1991); Crowe v. Henry, 43 F.3d 198, 205 (5th Cir.
1995); In re Managed Care Litigation, 150 F. Supp. 2d 1330, 1351 (S.D. Fla. 2001); cf., Churchill Village v. General
Electric, 361 F.3d 566, 574-75 (9th Cir. 2004).
84 Cedric Kushner Promotions, Ltd., 533 U.S. at 161; Living Designs, Inc., 431 F.3d at 361; First Capital Asset
Management v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir. 2004).
85 Boyle v. United States, 556 U.S. 938, 948 (2009); see also United States v. McClaren, 998 F.3d 203, 217 (5th Cir.
2021); United States v. Brown, 973 F.3d 667, 682 (7th Cir. 2020).
86 Boyle, 556 U.S. at 946; see also McClaren, 998 F.3d at 217; United States v. Cruz-Ramos, 987 F.3d 27, 36 (1st Cir.
2020); United States v. Williams, 974 F.3d 320, 368-69 (3d Cir. 2020); Brown, 973 F.3d at 682; Cisneros v. Petland,
972 F.3d 1204, 1211 (11th Cir. 2020); United States v. Mathis, 932 F.3d 242, 259 (4th Cir. 2019); Plambeck, 802 F3d.
665, 673 (5th Cir. 2015); Ouwinga v. Benistar 419 Plan Services, Inc., 694 F.3d 783, 794 (6th Cir. 2012); Crest
Construction II v. Doe, 660 F.3d 346, 354 (8th Cir. 2011).
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“Although the evidence establishing an enterprise and a pattern of racketeering activity ‘may in
particular cases coalesce,’ the two elements themselves remain ‘at all times’ distinct.87
2. In or Affecting Interstate or Foreign Commerce
To satisfy RICO’s jurisdictional element, the corrupt or corrupted enterprise must either engage in
interstate or foreign commerce or engage in activities that affect interstate or foreign commerce.88
An enterprise that orders supplies and transports its employees and products in interstate
commerce is “engaged in interstate commerce” for purposes of RICO,89 as is an enterprise that
uses telephones, the mail, or internet communications.90 Generally, the impact of the enterprise on
interstate or foreign commerce need only be minimal to satisfy RICO requirements.91 Where the
predicate offenses associated with an enterprise have an effect on interstate commerce, the
enterprise is likely to have an effect on interstate commerce.92 However, “where the enterprise
itself [does] not engage in economic activity, a minimal effect on commerce” may not be
enough.93
III. RICO Abroad
Generally, “[a]bsent clearly expressed congressional intent to the contrary, federal laws will be
construed to have only domestic application. … When a statute gives no clear indication of an
extraterritorial application, it has none.”94 The Supreme Court in RJR Nabisco, Inc. provided
guidance on the application of this general presumption to RICO. The Court held that RICO’s
criminal prohibitions apply abroad when they are grounded on a predicate offense that has

87 Williams, 974 F.3d at 369 (quoting United States v. Turkette, 452 U.S. 576, 583 (1981)).
88 18 U.S.C. § 1962(a), (b), (c).
89 United States v. Robertson, 514 U.S. 669, 671-72 (1995); see also United States v. Velasquez, 881 F.3d 314, 329
(5th Cir. 2018); United States v. Keltner, 147 F.3d 662, 669 (8th Cir. 1998) (multistate travel by the participants in
furtherance of the enterprise’s activities with RICO predicates committed in more than one state).
90 Velasquez, 881 F.3d at 329 (“Use of instrumentalities of interstate commerce such as telephones, the U.S. Postal
Service, and pagers to communicate in furtherance of the enterprise’s criminal purposes can also constitute the
enterprise affecting interstate commerce.”).
91 McClaren, 998 F.3d at 217; United States v. Millán-Machuca, 991 F.3d 7, 18 (1st Cir. 2021) (“The enterprise must
be one affecting interstate or foreign commerce, but it need only have a de minimis effect on interstate or foreign
commerce to demonstrate the required nexus”); United States v. Zelaya, 908 F.3d 920, 926 (4th Cir. 2018) (“MS-13 is
an enterprise with at least a de minimis effect on interstate commerce.”); United States v. Garcia, 793 F.3d 1194, 1210
(10th Cir. 2015) (“Most other circuits, however, have held that RICO requires only a minimal effect on interstate
commerce.”); United States v. Flores, 572 F.3d 1254, 1267 (11th Cir. 2009); United States v. Gardiner, 463 F.3d 445,
458 (6th Cir. 2006); United States v. Johnson, 440 F.3d 832, 841 (7th Cir. 2006); United States v. Rodriguez, 360 F.3d
949, 955 (9th Cir. 2004); United States v. Miller, 116 F.3d 641, 673-74 (2d Cir. 1997).
92 United States v. White, 116 F.3d 903, 925-26 (D.C. Cir. 1997); United States v. Miller, 116 F.3d 641, 673-74 (2d
Cir. 1997).
93 Waucaush v. United States, 380 F.3d 251, 256 (6th Cir. 2004).
94 RJR Nabisco, Inc. v. Eur. Cmty, 136 S Ct. 2090, 2100 (2016) (quoting Morrison v. National Australia Bank Ltd., 561
U.S. 247, 255 (2010)).
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extraterritorial application,95 but that RICO’s civil liability provision applies only to injuries
suffered domestically.96
IV. Consequences
The commission of a RICO violation exposes offenders to a wide range of criminal and civil
consequences: imprisonment, fines, restitution, forfeiture, treble damages, attorneys’ fees, and a
wide range of equitable restrictions.
A. Criminal Liability
RICO violations are punishable by fine or by imprisonment for life in cases where the predicate
offense carries a life sentence, or by imprisonment for not more than 20 years in all other cases.97
Although an offender may be sentenced to either a fine or a term of imprisonment under the strict
terms of the statute, the operation of the applicable sentencing guidelines makes it highly likely
that offenders will face both fine and imprisonment.98 The maximum amount of the fine for a

95 Id. at 2012 (“Congress’s incorporation of these (and other) extraterritorial predicates into RICO gives a clear,
affirmative indication that §1962 applies to foreign racketeering activity – but only to the extent that the predicates
allege in a particular case themselves apply extraterritorially.”); see also United States v. Perez, 962 F.3d 420, 440 (9th
Cir. 2020) (overturning a RICO conspiracy conviction because of an erroneous jury instruction stating that RICO
applied extraterritorially and failing to note the requirement that the underlying predicate offense must apply abroad).
The Supreme Court’s endorsement was not without reservation, RJR Nabisco, 136 S. Ct. at 2103, 2105-106 (“[W]e
assume without deciding that respondents have pleaded a domestic investment of racketeering income in violation of §
1962(a) … and assume without deciding that § 1962(d)’s extraterritoriality tracks that of the [predicate] provision
underlying the alleged conspiracy. … [We] assume without deciding that the alleged pattern of racketeering activity
consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country
in violation of a predicate statute that applies extraterritorially. … On these premises respondents’ allegations that RJR
violated §§ 1962(b) and (c) do not involve an impermissible extraterritorial application of RICO.” (emphasis added)).
96 Id. at 2106 (“Irrespective of any extraterritorial application of § 1962, we conclude that § 1964(c) does not overcome
the presumption against extraterritoriality. A private RICO plaintiff therefore must allege and prove a domestic injury
to its business or property.”); see also Bascuñán v. Elsaca, 927 F.3d 108, 117 (2d Cir. 2019) (“Whether an injury is
domestic will, as a general matter, depend on the particular facts alleged in each case. Absent extraordinary
circumstances, when a foreign plaintiff maintains tangible property in the United States, the misappropriation of that
property constitutes a domestic injury.” (internal quotation marks and citations omitted)); Humphrey v.
GlaxoSmithKline PLC, 905 F.3d 694, 706-707 (3d Cir. 2018) (“[T]he analysis of whether a plaintiff has alleged a
domestic injury must focus principally on where the plaintiff has suffered the alleged injury. … Whether an alleged
injury to an intangible interest was suffered domestically is a particular fact-sensitive question requiring consideration
of multiple factors. These include, but are not limited to, where the injury itself arose, the location of the plaintiffs
residence or principal place of business; where the alleged services were provided; where the plaintiff received or
expected to receive the benefits associated with providing such services; where any relevant business agreements were
entered into and the laws binding such agreements; and the location of the activities giving rise to the underlying
dispute.”).
97 18 U.S.C. § 1963(a).
98 U.S.S.G. § 2E1.1. Federal courts were at one time required to sentence an offender within the range provided by the
United States Sentencing Guidelines, unless the court found that the case involved factors not sufficiently considered in
the Guidelines, 18 U.S.C. § 3553(b)(2000 ed.). The once-mandatory Guidelines are now advisory, but continue to carry
considerable weight, United States v. Booker, 543 U.S. 220, 264 (2005) (“The district courts, while not bound by the
Guidelines, must consult those Guidelines and take them into account when sentencing”); Gall v. United States, 552
U.S. 38, 50-53 (2007) (holding that district courts must begin the sentencing process by calculating the sentencing
range recommended by the Guidelines and justify a deviation from the recommended range); United States v.
Christensen, 801 F.3d 970, 1019-20 (9th Cir. 2015) (“A sentence may be set aside if substantively unreasonable or if
procedurally erroneous in a way that is not harmless. Procedural error includes failing to calculate or calculating
incorrectly the proper Guidelines range, failing to consider the factors outlined in 18 U.S.C. § 3553(a), choosing a
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RICO violation is the greater of twice the amount of the gain or loss associated with the crime, or
$250,000 for an individual, $500,000 for an organization.99 Offenders sentenced to prison are also
sentenced to a term of supervised release of not more than three years to be served following their
release from incarceration.100 Most RICO violations also trigger mandatory federal restitution
provisions, that is, one of the RICO predicate offenses will be a crime of violence, drug
trafficking, or a crime with respect to which a victim suffers physical injury or pecuniary loss.101
Finally, property related to a RICO violation is subject to confiscation.102
Even without a completed RICO violation, committing any crime designated a RICO predicate
offense opens the door to additional criminal liability. It is a 20-year felony to launder the
proceeds from any predicate offense (including any RICO predicate offense) or to use them to
finance further criminal activity.103 The proceeds of any RICO predicate offense are subject to
civil forfeiture (confiscation without the necessity of a criminal conviction) by virtue of the RICO
predicate’s status as a money laundering predicate.104
B. Civil Liability
RICO violations may result in civil as well as criminal liability. “Any person injured in his
business or property by reason” of a RICO violation has a cause of action for treble damages and

sentence based on clearly erroneous facts, or failing to explain the sentence selected”).
99 18 U.S.C. §§ 1963(a), 3571.
100 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor
may include as part of the sentence a requirement that the defendant be placed on a term of supervised release after
imprisonment ... ”); § 3559(a)(3). Although the language of the statute is discretionary, the Sentencing Guidelines
require a term of supervised release in cases in which the term of imprisonment imposed is more than a year, U.S.S.G.
§ 5D1.1(a).
101 18 U.S.C. § 3663A. Restitution in other cases is discretionary, 18 U.S.C. § 3663.
102 18 U.S.C. § 1963(a) (“Whoever violates any provision of section 1962 . . . shall forfeit to the United States,
irrespective of any provision of State law – (1) any interest the person has acquired or maintained 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, operated, 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. . . .”).
103 18 U.S.C. § 1956 (“(a)(1) Whoever, knowing that the property involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity - (A)(i) with the intent to promote the carrying on of specified
unlawful activity; or . . . (B) knowing that the transaction is designed in whole or in part - (i) to conceal or disguise the
nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity . . . shall be
sentenced to a fine . . . or imprisonment for not more than twenty years, or both. . . . (c) As used in this section . . . (7)
the term ‘specified unlawful activity’ means - (A) any act or activity constituting an offense listed in section 1961(1) of
this title except an act which is indictable under subchapter II of chapter 53 of title 31 [relating to financial transaction
reporting requirements]. . . .”).
104 18 U.S.C. § 981(“(a)(1) The following property is subject to forfeiture to the United States . . . (C) Any property,
real or personal, which constitutes or is derived from proceeds traceable to a violation of . . . any offense constituting
‘specified unlawful activity (as defined in section 1956(c)(7) of this title). . . .”). For a general overview of federal
forfeiture law, see CRS Report 97-139, Crime and Forfeiture, by Charles Doyle.
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attorneys’ fees.105 No prior criminal conviction is required, except in the case of certain security
fraud based causes of action.106
Liability begins with a RICO violation under subsections 1962(a), (b), (c), or (d). If the
underlying violation involves subsection 1962(a) (use of predicate-offense-tainted proceeds to
acquire an interest in an enterprise), it is the use or investment of the income rather than the
predicate offenses that must have caused the injury.107
If the underlying violation involves subsection 1962(b) (use of predicate offenses to acquire an
enterprise), it is the access or control of the RICO enterprise rather than the predicate offenses
that must have caused the injury.108
If the underlying violation involves subsection 1962(c) (use of the patterned commission of
predicate offenses to conduct the activities of an enterprise), it is the use of the patterned
commission of the predicate offenses to operate the enterprises’ activities that must have caused
the injury.109

105 18 U.S.C. § 1964(c) (“Any person injured in his business or property by reason of a violation of section 1962 of this
chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he
sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon any conduct
that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.
The exception contained in the preceding sentence does not apply to an action against any person that is criminally
convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which
the conviction becomes final.”).
106 Sedima S.P.R.L. v. Imrex Co, Inc., 473 U.S. 479, 493 (1985); Smith v. Husband, 376 F. Supp. 2d 603, 613 (E.D.
Va. 2005).
107 N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 202 (5th Cir. 2015) (“To state a claim under
§ 1962(a), North Cypress had to plead: (1) the existence of an enterprise, (2) the defendant’s derivation of income from
a pattern of racketeering activity, and (3) the use of any part of that income in acquiring an interest in or operating the
enterprise. Additionally, North Cypress had to show a nexus between the claimed violations and the injury. The injury
must flow from the use or investment of racketeering income. Alleging an injury solely from the predicate racketeering
acts themselves is not sufficient . . . .” (internal quotation marks omitted)); Eur. Cmty v. RJR Nabisco, Inc., 764 F.3d
129, 138 n.5 (2d Cir. 2014), rev’d on other grounds, 136 S. Ct. 2090, 2111 (2016); Rao v. BP Products North America,
Inc., 589 F.3d 389, 398 (7th Cir. 2009); Myers v. Provident Life and Accident Ins. Co., 472 F. Supp. 3d 1149, 1174
(M.D. Fla. 2020) (“[T]he majority of courts that have addressed the issue have determined that a claimant under §
1962(a) must plead an injury that stems not from the racketeering predicate acts themselves but from the use or
investment of racketeering income.” (internal quotation marks omitted)); In re National Prescription Opiate Litigation,
452 F. Supp. 3d 745, 772 (N.D. Ohio 2020); In re Honey Transshipping Litigation, 87 F. Supp. 3d 855, 865-66 (N.D.
Ill. 2015); Macauley v. Estate of Nicholas, 7 F. Supp. 3d 468, 484-85 (E.D. Pa. 2014).
108 D’Addario v. D’Addario, 901 F.3d 80, 97 (2d Cir. 2018) (“Our Circuit, like many others, requires a plaintiff who
brings a civil RICO claim for a 1962(b) violation to demonstrate an injury arising from the defendants’ acquisition of
an interest in, or maintenance of control over, an alleged enterprise.”); N. Cypress, 781 F.3d at 202 (“To state a claim
under § 1962(b), North Cyrus had to show that its injuries were proximately caused by a RICO person gaining an
interest in, or control of, the enterprise through a pattern of racketeering activity -- a nexus requirement. The district
court found that North Cyprus did not successfully plead a nexus between its injuries and Cigna’s acquisition or
maintenance of an interest in the enterprise. . . . The district court was correct in dismissing the claim.”); Puerto Rico
Medical Emergency Grp., Inc. v. Iglesia Episcopal Puertorriqueña, Inc., 118 F. Supp. 3d 447, 459 (D.P.R. 2015) (“[T]o
state a section 1962(b) claim, a plaintiff must allege that it was injured ‘by reason of [the defendant’s] acquisition or
maintenance of control of an enterprise through a pattern of racketeering activity.’ . . . It is not enough for a plaintiff to
allege an injury caused by defendant’s predicate acts of racketeering.” (quoting Compagnie De Reassurnce D’ll de
France v. N.E. Reinsurance Corp., 57 F.3d 56, 92 (1st Cir. 1995))).
109 Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 647 (2008) (“RICO provides a private right of action for
treble damages to any person injured in his business or property by reason of the conduct of a qualifying enterprise’s
affairs through a pattern of [predicate] acts ... ”); see also Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir.
2020) (“A private plaintiff suing under the civil provisions of RICO must plausibly allege six elements: that the
defendants: (1) operated or managed (2) an enterprise (3) through a pattern (4) of racketeering activity that included at
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If the underlying violation involves subsection 1962(d) (conspiracy to violate subsections
1962(a), (b), or (c)), the injury must flow from the conspiracy. Although a criminal conspiracy
prosecution under subsection 1962(d) requires no overt act, RICO plaintiffs whose claim is based
on a conspiracy under subsection 1962(d) must prove an overt act that is a predicate offense or
one of the substantive RICO offenses, since a mere agreement cannot be the direct or proximate
cause of an injury.110
To recover, a plaintiff must establish an injury to his or her business or property directly and
proximately caused by the defendant’s RICO violation.111 The presence of an intervening victim
or cause of the harm is fatal.112 A couple of lower federal appellate courts “have identified in
[Holmes, Anza, and Hemi] three functional factors” that may foretell the absence of proximate
cause under RICO. “These are (1) ‘concerns about proof’ because the less direct an injury is the
more difficult it becomes to ascertain the amount of the plaintiff’s damages attributable to the
violation, as distinct from other independent factors; (2) concerns about admissibility and the
avoidance of multiple recoveries; and (3) a societal interest in deterring illegal conduct and
whether that interest would be served in a particular case.”113 Thus, “a link between the RICO

least two predicate acts of racketeering, which (5) caused (6) injury to the business or property of the plaintiff.”);
Abcarian v. Levine, 972 F.3d 1019, 1028 (9th Cir. 2020); Sergeants Benevolent Ass’n Health and Welfare v. Sanofi-
Aventis U.S., 806 F3d 71, 86 (2d Cir. 2015); CGC Holding Co., LLC v. Broad and Cassel, 773 F.3d 1076, 1088 (10th
Cir. 2014).
110 Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 552 (5th Cir. 2012) (“Injury caused by acts that are not racketeering
activities or otherwise wrongful under RICO will not establish a viable civil RICO claim”); Morganroth & Morganroth
v. Norris, McLaughlin & Marcus, 331 F.3d 406, 415 (3d Cir. 2003); Bowman v. Western Auto Supply Co., 985 F.2d
383, 387-88 (8th Cir. 1993); cf., Beck v. Prupis, 529 U.S. 494, 507 (2000); Domanus v. Locke Lord, LLP, 847 F.3d
469, 479 (7th Cir. 2017).
111 18 U.S.C. § 1964(c); Molina-Aranda v. Black Magic Enterprises, L.L.C., 983 F.3d 779, 784 (5th Cir. 2020) (citing
Holmes v. Secs. Inv. Prot. Corp., 503 U.S. 258, 28 (1992); Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006);
and Hemi Grp, LLC v. City of New York, 559 U.S. 1, 110, 12 (2010)) (“A RICO plaintiff must also plausibly allege
that the RICO violation proximately caused the plaintiff’s injuries. The proximate causation standard in this context is
not one of foreseeability; instead, the plaintiff must demonstrate that the alleged violation led directly to the injuries. If
some other conduct directly caused the harm, the plaintiff cannot sustain a RICO claim.”); CGC Holding Co., LLC v.
Hutchens, 974 F.3d 1201, 1213 (10th Cir. 2020) (“RICO requires that a plaintiff prove both but-for and proximate
cause.”).
112 Hemi Grp v. City of New York, 559 U.S. 1, 11 (2010) (the City, claiming that Hemi sold untaxed cigarettes to City
residents but fraudulently failed to report the sale to state authorities who then would have passed the information on to
City tax authorities, did not suffer a direct RICO injury: “the disconnect between the asserted injury and the alleged
fraud in this case is even sharper than in Anza. There, we viewed the point as important because the same party –
National Steel – had both engaged in the harmful conduct and committed the fraudulent act. We nevertheless found the
distinction between the relevant acts sufficient to defeat Ideal’s RICO claim. Here, the City’s theory of liability rests
not just on separate actions, but separate actions carried out by separate parties”) (emphasis of the Court); Anza v.
Ideal Steel Supply Corp., 547 U.S. 451, 460-61 (2006) (competitors, claiming that Anza could lower prices because he
failed to collect sales tax from cash customers and then used mail and wire fraud to cover his tax evasion, did not suffer
a direct or proximate RICO injury); Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 265-68 (1992) (the
Corporation, that reimbursed the customers of defaulting brokers following the defendant’s alleged stock manipulation,
did not suffer a direct or proximate RICO injury); Molina-Aranda, 983 F.3d at 784; see generally CRS Report
RS22470, Civil RICO and Standing: Anza v. Ideal Steel Supply Corporation (available to congressional clients upon
request).
113 Sterling Suffolk Racecourse, LLC v. Wynn Resorts, Ltd., 990 F.3d 31, 35-36 (1st Cir. 2021) (“This court has
identified in [Holmes, Anza, and Hemi] three functional factors with which to assess whether proximate cause exist
under RICO. These are (1) ‘concerns about proof’ because the less direct an injury is the more difficult it becomes to
ascertain the amount of the plaintiff’s damages attributable to the violation, as distinct from other independent factors;
(2) concerns about admissibility and the avoidance of multiple recoveries; and (3) a societal interest in deterring illegal
conduct and whether that interest would be served in a particular case.” (quoting Hemi, 559 U.S. at 9 and Holmes, 503
U.S. at 271)); St. Luke’s Health Network, Inc. v. Lancaster Gen. Hosp., 967 F.3d 295, 300-301 (3d Cir. 2020) (“The
Supreme Court has also articulated three judicially practicable reasons for requiring directness of injury. First, ‘the
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predicate acts and plaintiff’s injuries that is ‘too remote,’ ‘purely continent,’ or ‘indirect’ is
insufficient to show proximate cause.”114 The courts agree generally that personal injuries may
not form the basis for recovery, since they are not injuries to “business or property.”115
“Fraud in the sale of securities” is a RICO predicate offense.116 However, the Private Securities
Litigation Reform Act amended the civil RICO cause of action to bar suits based on allegations of
fraud in the purchase or sale of securities.117 In other private civil RICO cases, Rule 9(b) of the
Federal Rules of Civil Procedure demands that plaintiffs plead allegations of fraud with
particularity.118
Although the United States is apparently not a “person” that may sue for treble damages under
RICO,119 the term does include state and local governmental entities.120 On the other hand, private
parties have enjoyed scant success when they have sought to bring a RICO suit for damages
against the United States or other governmental entities.121 Nor in most instances have the courts

indirect injuries make it difficult to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct
from other, independent factors.’ Second, and relatedly, indirect injuries risk double recovery so the ‘courts would have
to adopt complicated rules apportioning damages to guard against this risk.’ Third, directly injured victims can be
counted on and are best positioned to ‘vindicate the law as private attorneys general,’ so there is no need to extend civil
RICO’s private right to those whose injuries are more remote.’” (quoting Holmes, 503 U.S. at 269-70)).
114 Sterling Suffolk Racecourse, LLC, 990 F.3d at 35 (quoting Hemi, 559 U.S. at 9); St. Luke’s Health Network, Inc.,
967 F.3d at 301 (“To demonstrate ‘some direct relation between the injury asserted and the injurious conduct alleged,’
the manipulation alleged must not be ‘purely contingent’ o another event or action. . . . [T]he cause of an injury that is
‘entirely distinct from the alleged RICO violation ‘may be too attenuated to meet the proximate cause requirement.
Relatedly, a more direct victim of the purported violation or independent intervening factors may also break the chain
of causation.” (quoting Holmes, 503 U.S. at 271 and Anza, 547 U.S. at 458)).
115 RJR Nabisco. Inc. v. Eur. Cmty, 136 S. Ct. 2090, 2108 (2016); Bascuñán v. Elsaca, 874 F.3d 806, 817 (2d Cir.
2017); Sabrina Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 590 (7th Cir. 2017); Safe Streets Alliance v.
Hickenlooper, 859 F.3d 865, 888-89 (10th Cir. 2017); Blevins v. Aksut, 849 F.3d 1016, 1021 (11th Cir. 2017).
116 18 U.S.C. § 1961(1)(D).
117 18 U.S.C. § 1964(c) (“Any person injured in his business or property by reason of a violation of section 1962 of this
chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he
sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon any conduct
that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.
The exception contained in the preceding sentence does not apply to an action against any person that is criminally
convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which
the conviction becomes final” (emphasis added)).
118 Muskegan Hotels, LLC v, Patel, 986 F.3d 692, 698 (7th Cir. 2021) (“Where, as here, the alleged predicate acts of
racketeering involve fraud, the complaint must describe the ‘who, what, where, and how’ of the fraudulent activity to
meet the heightened pleading standard demanded by Rule (b)); Molina-Aranda v. Black Magic Enterprises, L.L.C., 983
F.3d 779, 784 (5th Cir. 2020); Cisneros, 972 F.3d at 1215 (“Like any allegation of fraud, Cisneros’s alleged [mail and
wire fraud] predicate acts must satisfy the heightened pleading standards embodied in Federal Rule of Civil Procedure
9(b), which requires the plaintiff to ‘state with particularity the circumstances constituting fraud.’”).
119 United States v. Bonanno Organized Crime Family, 879 F.2d 20, 21-7 (2d Cir. 1989); Peia v. United States, 152 F.
Supp. 2d 226, 234 (D. Conn. 2001).
120 City of New York v. Smokes-Spirits.Com, Inc., 541 F.3d 425, 444-45 (2d Cir. 2008), rev’d on other grounds sub
nom., Hemi Group v. City of New York, 559 U.S. 1, 11 (2010); County of Oakland v. City of Detroit, 866 F.2d 839,
851 (6th Cir. 1989); Illinois Department of Revenue v. Phillips, 771 F.2d 312, 316-17 (7th Cir. 1985). Some courts,
however, believe that a governmental entity may only sue under RICO for injuries related to a commercial transactions,
Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 976 (9th Cir. 2008); Township of Marlboro v. Scannapuieco,
545 F. Supp. 2d 452, 458 (D.N.J. 2008) (citing dicta subsequently repudiated in Smokes-Spirits.Com, Inc.).
121 Ivanenko v. Yanukovich, 995 F.3d 232, 234-35 (D.C. Cir. 2021) (foreign government); Pedrina v. Chun, 97 F.3d
1296, 1300 (9th Cir. 1996) (municipality); McNeily v. United States, 6 F.3d 343, 350 (5th Cir. 1993) (Federal Deposit
Insurance Corp.); Genty v. Resolution Trust Corp., 937 F.2d 899, 908-14 (3d Cir. 1991) (municipality); Berger v.
Pierce, 933 F.2d 393, 397 (6th Cir. 1991) (Federal Insurance Administration); Smith v. Babbitt, 875 F. Supp. 1353,
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been receptive to RICO claims based solely on allegations that the defendant aided and abetted
commission of the underlying RICO violation.122
Notwithstanding the inability of the United States to sue for treble damages under RICO, the
Attorney General may seek to prevent and restrain RICO violations under the broad equitable
powers vested in the courts to order disgorgement, divestiture, restitution, or the creation of
receiverships or trusteeships.123 The government has invoked this authority relatively
infrequently, primarily to rid various unions of organized crime elements and other forms of

1365 (D. Minn. 1995), aff’d, 100 F.3d 556 (8th Cir. 1996) (Indian tribal government); McMaster v. State of Minnesota,
819 F. Supp. 1429, 1434 (D. Minn. 1993), aff’d, 30 F.3d 976 (8th Cir. 1994) (state); Keller v. Central Bank of Nigeria,
277 F.3d 811, 820 (6th Cir. 2002) (foreign governmental entity); Donahue v. Federal Bureau of Investigation, 204 F.
Supp. 2d 169, 173-74 (D. Mass. 2002); Banks v. Dept. of Motor Vehicles, 419 F. Supp. 2d 1186, 1192 (C.D. Cal.
2006).
122 Eliahu v. Jewish Agency for Israel, 919 F.3d 709, 714 (2d Cir. 2019) (“There is no private cause of action . . . for
aiding and abetting a civil RICO violation.”); see also Pennsylvania Association of Edwards Heirs v. Rightenour, 235
F.3d 839, 843 (3d Cir. 2000); Cobbs v. Sheahan, 385 F. Supp. 2d 731, 738 (N.D. Ill. 2005) (“Many courts have applied
the logic of Central Bank [v. First Interstate Bank, 511 U.S. 164 (1994)] to RICO and concluded that §1962(c) does not
provide for [civil] aiding and abetting liability.”); In re Chrysler-Dodge-Jeep Ecodiesel Marketing Sales Practices and
Product Liability Litigation, 295 F. Supp. 3d 927, 984 (N.D. Cal. 2018) (“Plaintiffs also seek to hold the Bosch
defendant liable for violating RICO under an aiding and abetting theory. Such a theory of liability is not available under
RICO.”); In re Trilegiant Corp. Inc., 11 F. Supp. 3d 132, 139 (D. Conn. 2014); In re Countrywide Financial Corp.
Mortgage Marketing and Sales Practice, 601 F. Supp. 2d 1201, 1219 (S.D. Cal. 2009); In re MasterCard International
Inc., Internet Gambling Litigation, 132 F.Supp.2d 468, 493-95 (E.D.La. 2001), aff’d, 313 F.3d 257 (5th Cir. 2002);
contra, In re Managed Care Litigation, 298 F.Supp.2d at 1272; First American Corp. v. Al-Nahyan, 17 F.Supp.2d 10,
23-4 (D.D.C. 1998)(preliminarily finding Central Bank distinguishable, but finding it unnecessary to resolve the issue
in light of the prospect of the defendants’ RICO liability on other grounds); American Automotive Accessories, Inc. v.
Fishman, 991 F. Supp. 987, 993 (N.D. Ill. 1998) (noting that the Seventh Circuit has yet to “comment on the possibility
of aiding and abetting liability in civil RICO actions”).
123 18 U.S.C. § 1964 (“(a) The district courts of the United States shall have jurisdiction to prevent and restrain
violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any
person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the
future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the
same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or
ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons. (b)
The Attorney General may institute proceedings under this section. Pending final determination thereof, the court may
at any time enter such restraining orders or prohibitions, or take such other actions, including the acceptance of
satisfactory performance bonds, as it shall deem proper.”); e.g., United States v. Local 560, 780 F.2d 267, 295-96 (3d
Cir. 1985) (equitable remedies available under RICO include court authority to remove union officials and place the
union in trusteeship); United States v. Sasso, 215 F.3d 283, 292 (2d Cir. 2000) (RICO grants the court authority to
order a defendant to contribute to cost of monitoring a previously corrupted union).
The courts have treated RICO requests to order disgorgement cautiously. United States v. Carson, 52 F.3d 1173, 1182
(2d Cir. 1995) (“Ordinarily, the disgorgement of gains ill-gotten long in the past will not serve the goal of ‘preventing
and restraining future violations’ unless there is a finding that the gains are being used to fund or promote the illegal
conduct, or constitute capital available for that purpose.”); Richard v. Hoechst Celanese Chemical Grp., Inc., 355 F.3d
345, 354-55(5th Cir. 2003) (emphasis of the court) (quoting Carson, 52 F.3d at 1182) (internal citations omitted) (“This
Court has not decided whether equitable relief is available to a private civil RICO plaintiff. . . . The circumstances
before us do not necessitate that we reach this question today. . . . The Second Circuit interpreted § 1964(a) to mean
that equitable remedies are only proper to ‘prevent and restrain future conduct rather than to punish past conduct.’. . .
With respect to the disgorgement remedy sought, the Second Circuit noted that disgorgement is generally available
under §1964. However, when disgorgement is sought for the purpose of compensating a party for past injuries, the
court held that the plain language of § 1964 bars relief. We agree with the Second Circuit’s reasoning in Carson.”).
One circuit has concluded that disgorgement is not a remedy available under RICO under any circumstances, United
States v. Philip Morris USA, Inc., 396 F.3d 1190, 1199 (D.C. Cir. 2005) (The order of disgorgement is not within the
terms of that statutory grant (i.e., § 19634(a)], nor any necessary implication of the language of the [IROCO] statute.”);
see, Christopher L. McCall. Comment. Equity Up in Smoke: Civil RICO, Disgorgement, and United States v. Philip
Morris, 74 FORDHAM L. REV. 2461 (2006).
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corruption.124 There is some question whether private plaintiffs, in addition to the Attorney
General, may seek injunctive and other forms of equitable relief for RICO violations.125
On the procedural side, RICO’s long-arm jurisdictional provisions authorize nationwide service
of process.126 In addition, the Supreme Court has held that: (1) state trial courts of general
jurisdiction have concurrent jurisdiction over federal civil RICO claims;127 (2) under the
appropriate circumstances, parties may agree to make potential civil RICO claims subject to
arbitration;128 (3) in the absence of an impediment to state regulation, the McCarran-Ferguson Act

124 E.g., Sasso, 215 F.3d 283 (2d Cir. 2000); United States v. Private Sanitation Industry Association, 995 F.2d 375 (2d
Cir. 1993); United States v. Local 560, 974 F.2d 315 (3d Cir. 1992); United States v. International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers (IBT), 931 F.2d 177 (2d Cir. 1991); United States v. Local 30, 871
F.2d 401 (3d Cir. 1989); United States v. Dougherty, 98 F. Supp. 3d 721 (E.D. Pa. 2015).
The Teamsters cases, perhaps the best known and most heavily litigated of these instances, arose by and large under a
consent decree negotiated to settle the government’s RICO suit, rather than issues as to the government’s prerogatives
under civil RICO, United States v. IBT, 172 F.3d 217, 219 (2d Cir. 1999); United States v. IBT, 170 F.3d 136, 140 (2d
Cir. 1999); United States v. IBT, 168 F.3d 645, 647 (2d Cir. 1999); United States v. Boggia, 167 F.3d 113, 113 (2d Cir.
1999); United States v. IBT, 156 F.3d 354, 356 (2d Cir. 1998); United States v. IBT, 141 F.3d 405, 407 (2d Cir. 1998);
United States v. IBT, 120 F.3d 341, 343 (2d Cir. 1997); United States v. IBT, 86 F.3d 271, 273 (2d Cir. 1996); United
States v. IBT, 19 F.3d 816, 818-19 (2d Cir. 1994); United States v. IBT, 12 F.3d 360, 361 (2d Cir. 1993); United States
v. IBT, 3 F.3d 634, 636 (2d Cir. 1993); United States v. IBT, 998 F.2d 1101, 1104 (2d Cir. 1993); United States v. IBT,
998 F.2d 120, 121 (2d Cir. 1993); United States v. IBT, 986 F.2d 15, 17 (2d Cir. 1993); United States v. IBT, 981 F.2d
1362, 1364 (2d Cir. 1992); United States v. IBT, 970 F.2d 1132, 1134 (2d Cir. 1996); United States v. IBT, 968 F.2d
1506, 1508 (2d Cir. 1992); United States v. IBT, 968 F.2d 1472, 1474 (2d Cir. 1992); United States v. IBT, 964 F.2d
180, 181 (2d Cir. 1992); United States v. IBT, 955 F.2d 171, 173 (2d Cir. 1992); United States v. IBT, 950 F.2d 94, 95
(2d Cir. 1991); United States v. IBT, 931 F.2d 177, 179 (2d Cir. 1991).
The United States also called upon the authority under Section 1964(a) in its RICO litigation against various tobacco
companies, United States v. Philip Morris Inc., 396 F.3d 1190, 1191 (D.C. Cir. 2005).
125 Chevron Corp. v. Donziger, 833 F.3d 74, 137 (2d Cir. 2016) (We conclude that a federal court is authorized to grant
equitable relief to a private plaintiff who has proven injury to its business or property by reason of a defendant’s
violation of § 1962 largely for the reasons stated by the Seventh Circuit opinion in NOW 1.” (citing National
Organization for Women, Inc. v. Scheidler, 267 F.3d 687, 695-700 (7th Cir. 2001) (concluding that private RICO
plaintiffs are entitle to equitable relief), rev’d on other grounds, 537 U.S. 393 (2003)); In re Managed Care Litigation,
298 F. Supp. 2d 1259, 1281-283 (S.D. Fla. 2003); contra, Religious Technology Center v. Wollersheim, 796 F.2d
1076, 1088 (9th Cir. 1986) (“Taken together, the legislative history and statutory language suggest overwhelmingly that
no private equitable action should be implied under civil RICO.”); Dan River v. Icahn, 701 F.2d 278, 290 (4th Cir.
1983) (“While we do not undertake to resolve the question, nevertheless, the probability of success is affected
adversely by the very existence of the uncertainty.”); Minter v. Wells Fargo Bank, 593 F. Supp. 2d 788, 794-95 (D.
Md. 2009) (“Faced with such a split, this Court finds that the Ninth Circuit [in Wollersheim] provides a more well-
reasoned and convincing argument.”).
126 18 U.S.C. § 1965. Laurel Gardens, LLC v. McKenna, 948 F.3d 105, 116-17 (3d Cir. 2020) (“There is a circuit split
regarding which specific subsection of the RICO provision governs the exercise of personal jurisdiction in this case.
Plaintiffs recognize that two circuits (the Fourth and the Eleventh Circuits) have looked to § 1965(d) [service of process
in any district in which the person resides, is found, has an agent, or does business]. . . . Five circuits (the Second,
Seventh, Ninth, Tenth, and D.C. Circuits) have stated that subsection (b) [nation-wide service when the ‘ends of justice
require’] governs nation-wide service of process and personal jurisdiction over ‘other parties.’. . . We agree with the
majority approach.” (citing Republic of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 942 (11th Cir. 1997)));
ESAB Grp. v. IFX Markets, Ltd., 126 F.3d 617, 626 (4th Cir. 1997); FC Inv. Grp. v. IFX Markets, Ldt., 529 F.3d 1087,
1098-1100 (D.C. Cir. 2008); Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226, 1229-233 (10th Cir. 2006); PT United Can
Co. v. Crown Cork & Seal Co., 138 F.3d 65, 71 (2d Cir. 1998); Lisak v. Merchantile Bancorp, Inc., 834 F.2d 668, 671-
72 (7th Cir. 1987); Butchers’ Union Local 498 v. SDC Inv., Inc., 788 F.2d 535, 538-39 (9th Cir. 1986)).
127 Tafflin v. Lavitt, 493 U.S. 455, 458 (1990). An injured party may also have a cause of action under an applicable
state RICO statute, citations for which are appended.
128 Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 242 (1987); cf., Pacificare Health Systems, Inc. v.
Book, 538 U.S. 401, 406-407 (2003); e.g., Miccosukee Tribe of Indians of Florida v. Cypress, 814 F.3d 1202, 1206-
207 (11th Cir. 2015); Uthe Technology Corp. v. Aetrium, 808 F.3d 755, 756 (9th Cir. 2015).
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does not bar civil RICO claims based on insurance fraud allegations;129 and (4) the Clayton Act’s
four-year period of limitation applies to civil RICO claims as well,130 and that the period begins
when the victim discovers or should have discovered the injury.131
V. Violent Crimes in Aid of Racketeering (VICAR)
Violence in aid of racketeering (VICAR), under 18 US.C. §1959 is a series of RICO-related
federal proscriptions that ban committing, attempting to commit, or conspiring to commit, any of
several specific violent state or federal predicate offenses with an eye to a reward from a RICO
enterprise.132 “To support a VICAR conviction, the government must show: ‘(1) that the criminal
organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendants
committed [or attempted or conspired to commit] a violent crime; and (4) that they acted for the
purpose of promoting their position in [or gaining entrance to] the racketeering enterprise.’”133

129 Humana, Inc. v. Forsyth, 525 U.S. 299, 302-03 (1999) (“Under the McCarren-Ferguson Act, the federal legislation
may be applied if it does not invalidate, impair, or supersede the State’s regulation. The federal law at issue, RICO,
does not proscribe conduct that the State’s laws governing insurance permit. . . . When federal law is applied in aid or
enhancement of state regulation, and does not frustrate any declared state policy or disturb the State’s administrative
regime, the McCarran-Ferguson Act does not bar the federal action”); Ludwick v. Harbinger Group, Inc., 854 F.3d 400,
403-07 (8th Cir. 2017); Riverview Health Inst. LLC v. Medical Mut. of Ohio, 601 F.3d 505, 513-19 (6th Cir. 2010);
American Chiropractic Ass’n, Inc. v. Trigon Healthcare, Inc., 367 F.3d 212, 230-32 (4th Cir. 2004); Bancoklahoma
Mortgage Corp. v. Capital Title Co., Inc., 194 F.3d 1089, 1198-1100 (10th Cir. 1999); Myers v. Provident Life and
Accident Ins. Co., 472 F. Supp. 3d 1149, 1169-70 (M.D. Fla. 2020); Flores v. United Airlines, 426 F. Supp. 3d 520,
537-39 (N.D. Ill. 2019); Mitchell v. First Call Bail and Surety, Inc., 412 F. Supp. 3d 1208, 1221-22 (D. Mont. 2019);
The William Powell Co. v. National Indemnity Co., 141 F. Supp. 3d 773, 781-82 (S.D Ohio 2015) (“Determining
whether the McCarran-Ferguson Act reverse preempts a federal statute is a three-step process. First, the court must
determine whether the federal statute at issue relates specifically to the business of insurance. If it does, then the
McCarran-Ferguson Act does not apply and the federal statute will not be reverse preempted. Second, the court must
determine whether the state law at issue was enacted for the purpose of regulating the business of insurance. If the state
law was not enacted for the purpose of regulating the business of insurance, then reverse preemption does not apply.
Third, the court must determine whether application of the statute would invalidate, supersede or impair the state
statute. If application of the federal statute would not invalidate, supersede or impair the state statute, then reverse
preemption does not apply. . . . NICO and Resolute point out that: 1) RICO does not specifically relate to the business
of insurance; 2) Ohio has enacted a complex statutory and administrative scheme to regulate unfair insurance practices,
including unfair claims handling; and 3) because Ohio does not provide a private cause of action to insureds for unfair
insurance practices, a statute like RICO, which permits recovery of treble damages against the defendant in the event of
a violation, would invalidate, impair or superseded Ohio’s ability to regulate the business of insurance. . . .
Consequently, Powell’s RICO claim is reverse preempted by state law pursuant to the McCarran-Ferguson Act.”).
130 Agency Holding Corp. v. Malley-Duff & Associates, 483 U.S. 143, 156 (1987); Klehr v. A.O.Smith Corp., 521 U.S.
179, 183 (1997). The Court also held that a plaintiff must have exercised due diligence to discover the violation before
statute of limitations will be tolled because of the defendant’s fraudulent concealment, id. at 194, and that unlike the
statute of limitations in criminal cases, a civil cause of action does not date from the “last predicate act” of the RICO
violation, id. at 186-87; see also Álvarez-Maurás v. Banco Popular of Puerto Rico, 919 F.3 617, 625 (1st Cir. 2019);
CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 476 (4th Cir. 2015); Evans v. Arizona Cardinals Football
Club, LLC, 231 F. Supp. 3d 342, 346 (N.D. Cal. 2017); State Farm Mut. Auto. Ins. Co. v. Grafman, 655 F. Supp. 2d
212, 225 (E.D.N.Y. 2009). The statute of limitations for a RICO criminal prosecution is five years, 18 U.S.C. § 3282;
United States v. Schiro, 679 F.3d 521, 528 (7th Cir. 2012).
131 Rotella v. Wood, 528 U.S. 549, 552-53 (2000); Álvarez-Maurás, 919 F.3d at 625; CVLR Performance Horses, Inc.,
792 F.3d at 476; Mathews v. Kidder, Peabody & Co., Inc., 260 F.3d 239, 244-45 (3d Cir. 2001); Evans, 231 F. Supp.
3d at 346; Grafman, 655 F. Supp. 2d at 225.
132 The text of 18 U.S.C. § 1959 is attached.
133 United States v. Rodriguez, 971 F.3d 1005, 1009 (9th Cir. 2020) (parentheticals of the court) (quoting United States
v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995); see also United States v. Millán-Machuca, 991 F.3d 7, 19 (1st Cir. 2021);
United States v, Portillo, 969 F.3d 144, 164 (5th Cir. 2020) (“In order to establish a violation of this statute, the
government must prove: ‘(1) an enterprise engaged in racketeering; (2) the activities affected interstate commerce; (3) a
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The list of predicate state and federal offenses consists of:
 Murder;
 Kidnapping;
 Maiming;
 Assault with a deadly weapon;
 Assault resulting in serious bodily injury;
 Threat to commit a crime of violence;
 Attempt or conspiracy to commit a predicate offense.134
The penalties for a VICAR violation turn upon the nature of the predicate offense:
 Murder—death or life imprisonment;
 Kidnapping—any term of years or life;
 Maiming—not more than 30 years’ imprisonment;
 Assault with a deadly weapon—not more than 20 years’ imprisonment;
 Assault resulting in serious bodily injury—not more than 20 years’
imprisonment;
 Threat to commit a crime of violence—not more than 5 years’ imprisonment;
 Attempt or conspiracy to commit a predicate offense (other than a threat)—not
more than 10 years’ imprisonment (murder or kidnapping); not more than 3
years’ imprisonment (maiming or assault).135
Accomplices face the same sanctions.136

murder [or other predicate offense of violence]; and (4) the murder was committed for payment by the enterprise or for
the purpose of gaining entrance to or maintaining or increasing position in an enterprise.’” (parenthetical added)
(quoting United States v. Owens, 724 F. App’x 289, 296 (5th Cir. 2018) (“cleaned up”))); United States v. Keene, 955
F.3d 391, 394 (4th Cir. 2020) (“Accordingly, to establish that a defendant violated the VICAR statute, the government
must prove: (1) the existence of a RICO enterprise; (2) that the enterprise was engaged in racketeering activity; (3) that
the defendant ‘had a position in the enterprise;’ (4) that the defendant committed one of the crimes specified in the
VICAR statute. . . ; and (5) that the defendant’s purpose was ‘to maintain or increase his position in the enterprise.’”
(quoting United States v. Zelaya, 908 F.3d 20, 926-27 (4th Cir. 2018))); United States v. Arrington, 941 F.3d 24, 37 (2d
Cir. 2019) .
134 18 U.S.C. §1959(a).
135 Id. § 1959(a)(1)-(6). Offenders are also subject to a fine of the greater of $250,000 ($500,000 for organizations) or
twice the pecuniary loss or gain associated with the offense. Id. § 3571.
136 18 U.S.C. § 2; see, e.g., United States v. Cruz-Ramos, 987 F.3d 27, 38 (1st Cir. 2020) (“Cruz-Ramos contests his
VICAR conviction for aiding and abetting Pekeke’s murder. . . . He is wrong,”); United States v. Portillo, 969 F.3d
144, 164-65 (5th Cir. 2020) (“Count Three charged Pike with aiding and abetting Anthony Benesh’s murder in support
of a racketeering enterprise, a crime under the [VICAR] Act. . . .There was sufficient evidence presented at trial for the
jury to find Pike guilty of Count Three.”); cf. United States v. Brown, 973 F.3d 667, 689-90 (7th Cir. 2020) (“Council,
Bush, and Ford join Derrick in arguing that the evidence was insufficient to support the jury’s special findings that their
racketeering activity included the commission, or aiding and abetting, of Bluitt’s and Neeley’s murders. . . . The jury .
. . could reasonably find that Derrick participated in the murders, without shooting, on an accountability theory. . . .
Derrick took affirmative steps in furtherance of the murders by conducting surveillance before the murders and serving
as backup.” (emphasis added)). Mere association with murderers is not enough to establish accomplice liability. United
States v. Delgado, 972 F.3d 63, 78-9 (2d Cir. 2020).
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VICAR uses the RICO definition of “racketeering activity”137 and the RICO description of
“enterprise,”138 but VICAR does not define murder or any of the other predicate offenses. The
omission introduces uncertainty as to whether the predicate offenses should be defined by
reference to federal law, the law of jurisdiction that provides the predicate offense, the common
law, or some generic definition reflecting the consensus of U.S jurisdictions.139
VICAR “‘requires that an animating purpose of the defendant’s action was to maintain or
increase his position’ in the gang,” a requirement that may be satisfied by a defendant’s position
of “shooter” in the gang,140 by obligations imposed by virtue of membership in gang,141or by

137 Id. §§ 1959(b)(1), 1961(1).
138 RICO defines “enterprise” broadly in section 1961(4), but waits until the description of RICO’s substantive offenses
before introducing the commercial feature of a RICO enterprises. See, e.g., 18 U.S.C. 1962(c) (“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 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” (emphasis added)). VICAR incorporates RICO’s
commercial feature within its definition of “enterprise.” Id. § 1959(b)(2) (“‘[E]nterprise’ includes any partnership,
corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a
legal entity, which is engaged in, or the activities of which affect, interstate or foreign commerce.” (language in italics
is unique to section 1959(b)(2) which is otherwise identical to section 1961(4)). See also United States v. Millán-
Machuca, 991 F3.d 7, 20 (1st Cir. 2021) (“[N]othing in the statutory definition of enterprise requires that the enterprise
be defined solely by a criminal purpose. Indeed, the Supreme Court has recognized that RICO, and, thus also VICAR,
extends to ‘both legitimate and illegitimate enterprises.’” (quoting United States v, Turkette, 452 U.S. 576, 580-81
(1981))). United States v. Aquart, 912 F.3d 1, 17 (2d Cir. 2018) (finding that the jurisdictional requirement “‘can be
satisfied by even a de minimis effect on interstate commerce.’” (quoting United States v, Mejia, 545 F.3d 179, 203 (2d
Cir. 2008))).
139 United States v. Savage, 970 F.3d 217, 274 (3d Cir. 2020) (“Some jurisdictions view generic definitions as
appropriate in RICO cases. . . . But the VICAR statute requires a predicate act that is chargeable under state or federal
law. . . . So as the Second Circuit has observed, trial courts frequently instruct juries on the elements of the specific
state or federal offense that is charged as the predicate act rather than outlining a ‘generic’ version of the crime.” (citing
United States v. Carrillo, 229 F.3d 177, 184-85 (2d Cir. 2000)); see also Keene, 955 F.3d at 398-99 (“Reading the
language of the VICAR statute under which the defendants were charged, we conclude that Congress intended for
individuals to be convicted of VICAR assault with a dangerous weapon by engaging in conduct that violated both that
enumerated federal offense as well as a state law offense, regardless whether the two offenses are a categorical ‘match.’
Here, before convicting a defendant, a jury must find he engaged in the conduct alleged in the indictment, namely,
assaulting the named victim with a dangerous weapon in violation of the Virginia brandishing statute.”).
140 United States v. Tisdale, 980 F.3d 1089, 1095-96 (6th Cir. 2020) (quoting United States v. Ledbetter, 929 F.3d 338,
358 (6th Cir. 2019)); id. at 1096 (“Did [Tisdale] commit the assault to maintain or increase his position in the gang?
Remember that Tisdale was a ‘shooter’ in the gang, which meant that, if something happened, he was expected to
protect other gang members. According to his colleagues in the gang, he fired back at the Stout Street house to do just
that. That’s what someone of his rank was expected to do, and the statute applies to actions designed to ‘maintain’
status.” (citing Ledbetter, 929 F.3d at 358)).
141 United States v. Brown, 973 F.3d 667, 686 (7th Cir. 2020) (“Next, the defendants argue that even if they actually
committed the murder, the government failed to present sufficient evidence that it was ‘for the purpose of maintaining
or increasing position in’ the Hobos enterprise, as required under 18 U.S.C. § 1959(a)(1). The question here is whether
there was evidence permitting the jury to ‘infer that the defendant committed his violent crime because he knew it was
expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that
membership.’”) (quoting United States v. DeSilva, 505 F.3d 711, 715 (7th Cir. 2007)); United States v. Arrington, 941
F.3d 24, 38 (2d Cir. 2019) (“This motive requirement is ‘satisfied if the jury could properly infer that Arrington
committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or
that he committed it in furtherance of that membership,’” (quoting United States v. Thai, 29 F.3d 785, 817 (2d Cir.
1994))).
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expectations of a leader of an enterprise.142 That purpose, however, need not be the sole purpose
or even the main purpose.143
Juveniles convicted of murder in aid of racketeering have sometimes challenged their sentences
on grounds of Eighth Amendment limitations.144 In Miller, the Supreme Court held that the
Eighth Amendment’s ban on cruel and unusual punishments precludes a mandatory sentence of
life imprisonment without any possibility of parole for an offense the defendant committed while
a juvenile.145 However, Congress has largely abolished parole, and the VICAR provision states
that murder “shall be” punished by one of two sentences -- death or life imprisonment.146 The
Fifth Circuit resolved the issue under a similarly worded statute by concluded that in the case of
juveniles the language establishes alternative maximum penalties and “provides discretion to the
sentencing judge to sentence anywhere between no penalty and the maximum penalty.”147 Most
recently, the Supreme Court in Jones v. Mississippi148observed that a juvenile who commits a
homicide when under the age of 18 may be sentenced to life imprisonment without the possibility
of parole as long as the sentencing authority did so as a matter of discretion and might have
imposed a less severe sentence.149 A number of other lower federal courts have rejected Miller
protection claims from over-aged VICAR murder defendants.150

142 United States v. Aquart, 912 F.3d 1, 20 (2d Cir. 2018) (“[The defendant] was the leader of the charged enterprise,
and the evidence was sufficient to allow a reasonable jury to infer that he was ‘expected to act based on the threat posed
to the enterprise’ by [the murdered victim’s] drug sales, ‘and failure to do so would have undermined his position
within that enterprise.’’) (quoting United States v. Dhinsa, 243 F.3d 635, 671 (2d Cir. 2001)).
143 United States v. Millán-Machuca, 991 F.3d 7, 22 (1st Cir. 2021) (“To meet the elements of a murder in aid of
racketeering conviction, the government must show that the defendant acted with such a purpose, and we have
previously recognized that the statute does not require that the government prove this was ‘the sole purpose,’”) (quoting
United States v. Brandao, 539 F.3d 44, 56 (1st Cir. 2008)); United States v. Rodriguez, 971 F.3d 1005, 1009-10 (9th
Cir. 2020) (“[T]he VICAR statute is limited ‘to those cases in which the jury finds that one of the defendant’s general
or dominant purposes was to enhance his status or that the violent act was committed as an integral aspect of gang
membership.’ Recognizing that ‘[p]eople often act with mixed motives,’ we rejected a more stringent reading of
VICAR that would require the gang or racketeering enterprise purpose to be the only purpose or the main purpose
behind the violent conduct.”) (emphasis added) (quoting United States v. Banks, 514 F.3d 959, 969-70 (9th Cir. 2008)).
144United States v. Gonzalez, 981 F.3d 11, 18-21(1st Cir. 2020); United States v. Sierra, 933 F3d 95, 97 (2d Cir. 2019);
United States v. Chavez, 894 F.3d 593, 609 (4th Cir. 2018).
145 Miller v. Alabama, 567 U.S. 460, 479 (2012).
146 See 18 U.S.C. §1959(a)(1)
147 United States v. Bonilla-Romero, 984 F.3d 414, 417 (5th Cir. 2020) (affirming a sentence of 460 months’
imprisonment for first degree murder under 18 U.S.C. §1111 (which carries a maximum sentence of death or
imprisonment for life), for a defendant who committed the offense when he was 17 years old).
148 141 S. Ct. 1307 (2021).
149 Id. at 1311 (citing Miller). The Court held in Jones that there is no requirement that the sentencing authority first
determine that the accused is permanently incorrigible. Id. at 1318-19.
150 Gonzalez, 981 F.3d at 19 (“[T]he defendant fails adequately to explain why the multitude of factors comprising the
Eighth Amendment inquiry compel an extension of Eighth Amendment protections to a defendant who was twenty
years old when he committed the offense conviction.”); Sierra, 933 F3d at 97 (“Each defendant was between 18 and 22
years of age at the time of the murders in aid of racketeering. . . . Since the Supreme Court has chosen to draw the
constitutional line at the age of 18 for mandatory sentences, the defendants’ age-based Eighth Amendment challenges
to their sentences must fail.”) (citing Miller, 567 U.S. at 465); Chavez, 894 F.3d at 609 (At the time of the crimes of
conviction, Cerna was 18 years old and Guevara was 19. The Supreme Court has held that mandatory life sentences are
unconstitutional as to defendants who committed their crimes as juveniles. But this is no help to the defendants, both of
whom were adults at the time they committed murder in aid of racketeering.”).
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The Eighth Amendment also cabins sentencing authority in capital cases. It forbids imposing the
death penalty upon juveniles;151 execution of the mentally “retarded”;152 and forbids sentencing to
death those convicted of felony-murder who neither killed, attempted to kill, nor intended to
kill.153 In United States v. Savage, the Third Circuit upheld a sentence of death for a drug dealer
convicted of RICO conspiracy, twelve counts of murder in aid of racketeering, conspiracy to
commit murder in aid of racketeering, witness retaliation, and fire bombing.154 Savage, who
ordered the firebombing that killed his intended victim and five other occupants of the house,
argued unsuccessfully that the Enmund felony-murder limitation should be extended to
accomplices who incur liability by operation of the transferred intent doctrine.155
VI. Constitutional Questions
Over the years, various aspects of RICO have been challenged on a number of constitutional
grounds. Most either attack the RICO scheme generally or its forfeiture component. The general
challenges have been based on vagueness, ex post facto, and double jeopardy. Attacks on the
constitutionality of RICO forfeiture have been grounded in the right to counsel, excessive fines,
cruel and unusual punishment, and forfeiture of estate. While the challenges have been
unsuccessful by and large, some have helped to define RICO’s outer reaches.
A. General
1. Legislative Authority Under the Commerce Clause
The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes,” and “to make all Laws which shall be necessary
and proper for carrying to Execution” that authority.156 The powers which the Constitution does
not confer upon the federal government, it reserves to the states and the people, U.S. CONST.
amend. X. Although RICO deals only with enterprises “engaged in, or the activities of which
affect, interstate or foreign commerce,” some have suggested that RICO has been applied beyond
the scope of Congress’s constitutional authority to legislate under the commerce clause.157 The
courts have yet to agree.158

151 Roper v. Simmons, 543 U.S. 551 (2005).
152 Atkins v. Virginia, 536 U.S. 304 (2002).
153 Enmund v. Florida, 458 U.S. 782 (1982).
154 970 F.3d 217, 235-36, 316 (3d Cir. 2020).
155 Id. at 280. The doctrine of transferred intent is something of a doctrine of liability for collateral consequences where
the intent to kill one victim is “transferred” for the purposes of satisfying the intent element for killing a bystander. As
explained by Professor LaFave, “In the unintended victim (or bad aim) situation – where A aims at B but misses,
hitting C – it is the view of the criminal law that A is just as guilty as if his aim had been accurate.” 1 WAYNE R.
LAFAVE, SUBSTANTIVE CRIMINAL LAw § 6(d) (2d ed. 2003).
156 U.S. CONST. art. I, § 8, cls. 3, 18.
157 Matthew Hardwick. Note. RICO Overreach: How the Federal Government’s Escalating Offensive Against Gangs
Has Run Afoul of the Constitution, 62 VAND. L. REV. 211 (2009); WILLIAM ROQUEMORE TAYLOR. COMMENT.
Federalizing Street Crime: The Improper Broadening of RICO’s “Affecting Commerce” Requirement, 46 HOUS. L.
REV. 139 (2009).
158 United States v. Adams, 722 F.3d 788, 804 n.8 (6th Cir. 2013); United States v. Nascimento, 491 F.3d 25, 45(1st
Cir. 2007); United States v. Palfrey, 515 F. Supp. 2d 120, 124-25 (D.D.C. 2007). Courts have also rejected contentions
that VICAR exceeds congressional authority under the Commerce Clause. United States v. Umana, 750 F.3d 323, 336
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2. Double Jeopardy
Even a general description of RICO evokes double jeopardy and ex post facto questions. RICO
rests on a foundation of other crimes. At a glance, double jeopardy might appear to block any
effort to base a RICO charge on a crime for which the accused had already been tried. By the
same token, ex post facto might appear to bar a RICO charge built upon a predicate offense
committed before RICO was enacted or before the crime was added to the list of RICO
predicates. On closer examination, neither presents insurmountable obstacles in most instances.
The Constitution’s double jeopardy clause commands that no person “be subject for the same
offense to be twice put in jeopardy of life or limb.”159 In general terms, it condemns multiple
prosecutions or multiple punishments for the same offense.160 The bar on multiple punishments is
a precautionary presumption. Unless a contrary intent appears, it presumes that Congress does not
intend to inflict multiple punishments for the same misconduct.161 Nevertheless, the courts have
concluded that Congress did intend to authorize “consecutive sentences for both predicate acts
and the RICO offense,”162 as well as for both the substantive RICO offense and the RICO
conspiracy to commit the substantive RICO offense.163
The bar on multiple prosecutions is more formidable. For it, the Supreme Court has long adhered
to the so-called Blockburger test under which offenses are considered the same when they have
the same elements, that is, unless each requires proof of an element not required of the other.164 In
the RICO context, the courts have held that the Double Jeopardy Clause does not bar successive
RICO prosecutions of the same defendants on charges of involving different predicate offenses,
enterprises, or patterns.165 They have been more receptive to double jeopardy concerns in the case
of successive prosecutions of the same enterprise. There, they have invoked a totality of the
circumstances test which asks: “(1) the time of the various activities charged as parts of [the]
separate patterns; (2) the identity of the persons involved in the activities under each charge; (3)
the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope
of the activity the government seeks to punish under each charge; and (5) the places where the
activities took place under each charge.”166 The Supreme Court’s confirmation in Gamble v.

(4th Cir. 2014); United States v. Mills, 378 F. Supp. 3d 563, 572 (E.D. Mich. 2019).
159 U.S. CONST. amend. V.
160 United States v. Dixon, 509 U.S. 688, 696 (1993) (“The Double Jeopardy Clause ... applies both to successive
punishments and to successive prosecutions for the same criminal offense.”).
161 United States v. Garcia, 754 F.3d 460, 474 (7th Cir. 2014) (quoting Missouri v. Hunter, 459 U.S. 359, 365 (1983)
(“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than
prevent the sentencing court from prescribing greater punishment than the legislature intended”); see also United States
v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010).
162 Garcia, 754 F.3d at 474; see also, United States v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010); United States v.
Basciano, 599 F.3d 184, 205 (2d Cir. 2010); United States v. Mahdi, 598 F.3d 883, 889 (D.C. Cir. 2010); United States
v. Marino, 277 F.3d 11, 39 (1st Cir. 2002); United States v. Beale, 921 F.2d 1412, 1437 (11th Cir. 1991).
163 United States v. Pratt, 728 F.3d 463, 478 n. 59 (5th Cir. 2013), abrogated on other grounds, Molina-Martinez v.
United States, 136 S. Ct. 1338 (2016); United States v. Kehoe, 310 F.3d 579, 587-88 (8t Cir. 2002); United States v.
Marino, 277 F.3d at 39; United States v. Diaz, 176 F.3d 52, 115-16 (2d Cir. 1999); United States v. Rone, 598 F.2d
564, 569-71 (9th Cir. 1979).
164 Blockburger v. United States, 284 U.S. 299, 304 (1932); see also United States v. Ledbetter, 929 F.3d 338, 366 (6th
Cir. 2019); United States v. Zemlyansky, 908 F.3d 1, 11-12 (2d Cir. 2018) (holding trial for a predicate offense does
not preclude a RICO conspiracy prosecution).
165 United States v. Schiro, 679 F.3d 521, 525-28 (7th Cir. 2012); United States v. DeCologero, 530 F.3d 36, 71 (1st
Cir. 2008); United States v. Jones, 482 F.3d 60, 71-2 (2d Cir. 2006).
166 United States v. Wheeler, 535 F.3d 446, 450 (6th Cir. 2008) (quoting United States v. Russotti, 717 F.2d 27, 33 (2d
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United States of the continued validity of the dual sovereign doctrine makes clear that the Double
Jeopardy Clause does not preclude successive state-federal prosecutions.167
3. Ex post facto
The ex post facto clauses preclude (1) punishment of past conduct which was not a crime when it
was committed, (2) increased punishment over that which attended a crime when it was
committed, and (3) punishment made possible by elimination of a defense which was available
when a crime was committed.168 Yet because RICO offenses are thought to continue from the
beginning of the first predicate offense to the commission of the last, a RICO prosecution
survives ex post facto challenge even if grounded on pre-enactment predicate offenses as long as
the pattern of predicate offenses straddles the date of legislative action.169 Moreover, as time goes
on, prosecutions are less likely to rely on pre-RICO enactment predicate offenses.170
4. Vagueness
“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.”171 Vagueness became
a more common constitutional object to RICO, after Justice Scalia and three other Justices
implied its vulnerability to such an attack.172 Subsequent lower courts appear to have uniformly

Cir. 1983); and United States v. Dean, 647 F.2d 779, 788 (8th Cir. 1981)).
167 139 S. Ct. 1960, 1964 (2019); see also, United States v. Brown, 973 F.3d 667, 702 (7th Cir. 2020); United States v.
Leoner -Aguirre, 939 F.3d 310, 321 (1st 2019).
168 U.S. CONST. art. I, §9, cl.3; art .I, §10, cl.1; Collins v. Youngblood, 497 U.S. 37, 52 (1990).
169 United States v. Flemmi, 245 F.3d 24, 27 n.3 (1st Cir. 2001) (“The government did not seek to indict Flemmi for the
crime of murder because there is no federal statute that can be applied to the 1967 slayings without violating the Ex
Post Facto Clause. This fact, however, does not prohibit reference to the slayings as predicate acts in connection with
the RICO counts. See also United States v. Brown, 555 F.2d 407, 416-17 (5th Cir. 1977) (upholding, against
constitutional challenge, government’s use of predicate acts occurring prior to RICO’s effective date in conjunction
with predicate acts occurring after that date).”); United States v. Caporale, 806 F.2d 1487, 1516 (11th Cir. 1986).
The fact that the defendant may be adversely affected by a procedural change likewise does not trigger ex post facto
concerns. Thus, when Congress amended RICO to permit the confiscation of substitute assets should the forfeitable
property become unavailable, the ex post facto clause did not preclude application of the change to cases arising before
the amendment, United States v. Reed, 924 F.2d 1014, 1016-17 (11th Cir. 1991); United States v. Martenson, 780 F.
Supp. 492, 495 (N.D. Ill. 1991).
170 Since the inception of RICO, amendments have largely involved the addition of new predicate offenses or
procedural matters. 18 U.S.C. §§ 1961 note, 1962 note. Contemporary challenges are more likely to involve application
of Sentencing Guidelines amendments, which often require more severe sentences than those in effect when the offense
was committed, see, e.g., Peugh v. United States, 569 U.S. 530, 544 (2013) (“A retrospective increase in the Guidelines
range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”);
United States v. Ponzo, 853 F.3d 558, 586 (1st Cir. 2017); United States v. DeLeon, 437 F. Supp. 3d 955, 962 (D.N.M.
2020).
171 Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 525 (1994) (quoting Kolender v. Lawson, 461 U.S. 352,
357 (1983).
172 H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 251, 254-55 (1989) (Scalia, J., concurring in the judgment) (“Four
terms ago . . . we gave lower courts . . . four clues concerning the meaning of the enigmatic term ‘pattern of
racketeering activity’. . . . Today, four years and countless millions in damages and attorney’s fees later (not to mention
prison sentences under the criminal provisions of RICO), the Court does little more than repromulgate those hints as to
what RICO means. . . . It is, however, unfair to be so critical of the Court’s effort, because I would be unable to provide
an interpretation of RICO that gives significantly more guidance concerning its application. . . . Today’s opinion has
added nothing to improve our prior guidance, which has created a kaleidoscope of Circuit positions, except to clarify
that RICO may additionally be violated when there is a ‘threat of continuity.’ It seems to me this increases rather than
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rejected the suggestion that RICO is unconstitutionally vague either generally or as applied to the
facts before them.173
5. Cruel and Unusual Punishment
The Eighth Amendment’s Cruel and Unusual Punishment Clause precludes imposition or
execution of punishment that is disproportionate to the crime of conviction. 174 It accordingly
bars imposition of a mandatory sentence of life imprisonment without the possibility of parole for
a homicide committed when the accused was under 18 years of age,175 but not if the sentencing
authority has the discretion impose a less severe sentence.176
B. Forfeiture
1. Eighth Amendment
RICO forfeitures can be severe. The Eighth Amendment supplies the constitutional bounds within
which criminal sentences must be drawn. Under its directives, fines may not be excessive nor
punishments cruel and unusual.177 Any more precise definition becomes somewhat uncertain.
When presented with the issue in Harmelin, a majority of the Supreme Court appeared to believe
that the Eighth Amendment’s Cruel and Unusual Punishment Clause forbids sentences which are
“grossly disproportionate” to the seriousness of the crimes for which they are imposed.178 Prior to
Harmelin, the lower courts felt that at some point RICO forfeitures might be so disproportionate
as to constitute cruel and unusual punishment.179 Perhaps understandably, especially in light of

removes the vagueness.”).
173 United States v. Fattah, 914 F.3d 112, 167 n. 20 (3d Cir. 2019); United States v. Burden, 600 F.3d 204, 228 (2d Cir.
2010); United States v. Keltner, 147 F.3d 662, 667 (8th Cir. 1998); Columbia Natural Resources, Inc. v. Tatum, 58
F.3d 1101, 1106-109 (6th Cir. 1995); United States v. Oreto, 37 F.3d 739, 752 (1st Cir. 1994); United States v.
Korando, 29 F.3d 1114, 1119 (7th Cir. 1994); Cox v. Administrator, U.S. Steel & Carnegie, 17 F.3d 1386, 1398 (11th
Cir. 1994); United States v. Bennett, 984 F.2d 597, 606 (4th Cir. 1993); United States v. Pirk, 267 F. Supp. 3d 406,
423-24 (W.D.N.Y. 2017); Buchanan County v. Blankenship, 545 F. Supp. 2d 553, 555 (W.D. Va. 2008); United States
v. Stevens, 778 F. Supp. 2d 683, 694-95 (W.D. La. 2011).
174 Miller v. Alabama, 567 U.S. 460, 469-70 (2012).
175 Id. at 480.
176 Jones v. Mississippi, 141 S. Ct. 1307, 1312 (2021) (“Miller held that the Cruel and Unusual Punishments Clause of
the Eighth Amendment prohibits mandatory life without parole sentences for murderers under 18, but the Court
allowed discretionary life without parole sentences for those offenders.”).
177 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
U.S. CONST. amend. VIII.
178 Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding the imposition of a state mandatory term of life in prison
without the possibility of parole upon conviction for possession of more than 650 grams of cocaine.) Of the nine
Justices, two (Justice Scalia and Chief Justice Rehnquist) voted to affirm and would limit proportionality analysis to
capital punishment cases; three others (Justices O’Connor, Kennedy and Souter) voted to affirm but pursuant to a
proportionality analysis where the seriousness of the offense carried the day, 501 U.S. at 996; and the remaining four
(Justices White, Marshall, Blackmun and Stevens) dissented in favor of a proportionality test placing greater emphasis
on the comparative harshness of the penalty and a comparison with the penalties imposed for other crimes, 501 U.S. at
1009, 1027, 1028.
179 United States v. Feldman, 853 F.2d 648, 664 (9th Cir. 1988) (“For eighth amendment purposes, however, we must
consider the total punishment. Feldman’s penalty is unconstitutional only if it is grossly disproportionate to his offense.
No gross disparity appears here. Feldman’s offenses were serious, and the penalty is not unduly harsh. We are not faced
with a situation in which a defendant is being made to forfeit a 92% interest in a $3 million corporation as well as
another corporation and considerable real estate, for fraudulent conduct amounting to $335,000.” (citations omitted)).
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developments under the Excessive Fines Clause, the argument seems to have been rarely pressed
since Harmelin.180
The Eighth Amendment’s Excessive Fines Clause jurisprudence follows the same path and is
slightly more instructive. Historically, the clause was only infrequently invoked. The Supreme
Court changed that when it noted that the clause marks one of the boundaries of permissible
RICO criminal forfeiture.181 In Bajakajian, the Court explained that forfeiture offends the
Excessive Fines Clause when it is “grossly disproportionate to the gravity of the offense.”182
Looking to Bajakajian, lower courts “weigh a number of factors in determining whether a
forfeiture was grossly disproportional, including: (1) the amount of the forfeiture and its
relationship to the authorized penalty; (2) the nature and extent of criminal activity; (3) the
relationship between the charged crime and other crimes; and (4) the harm caused by the charged
crime. . . .”). 183 Although the gravity of most RICO violations would seem to weigh heavily
against most excessive fines clause challenges,184 at least one circuit holds that the appropriate
excessive fines analysis must include consideration of the impact of confiscation upon the
property owner’s livelihood.185 One federal district court has found the confiscation of a
motorcycle gang’s trademark of its logo would constitute an excessive fine in light of the other
sanctions imposed upon the gang and First Amendment implications.186

180 Craig W. Palm, RICO Forfeiture and the Eighth Amendment: When Is Everything Too Much? 53 U. PITT. L. REV. 1
(1991).
181 Alexander v. United States, 509 U.S. 544, 558-59 (1993).
182 United States v. Bajakajian, 524 U.S. 321, 334-37 (1998).
183 United States v. Bennett, 986 F.3d 389, 399 (4th Cir. 2021) United States v. Suarez, 966 F.3d 376, 385 (1st Cir.
2020); United States v. Bikundi, 926 F.3d 791, 795-96 (D.C. Cir. 2019)
184 See generally Bennett, 986 F.3d at 399-400 (finding that criminal forfeiture of $14 million was not grossly
disproportionate following conviction for wire and bank fraud for which the court might have imposed a $28 million
fine); United States v. Bradley, 969 F.3d 585, 592 (6th Cir. 2020) (holding that forfeiture judgment which left the
defendant with a debt of $250,000 was not excessive given his years at the head of a opioid trafficking conspiracy);
Suarez, 966 F.3d at 387 (upholding a $52.042 forfeiture, following a money laundering conviction, with the
observation that “[b]ecause the $52,042 forfeiture falls well within the $250,000 maximum fine prescribed by
Congress, there is a strong presumption that the forfeiture is constitutional.”); Bikundi, 926 F.3d at 795-96 (“All four
[Bajakajian] factors confirm that the [$79 million] forfeitures imposed against [the defendants] do not violate the
Excessive Fines Clause. (1) The essence of their crime was grave. They personally orchestrated a sprawling fraud . . .
[that] lasted for years. . . . (2) [The defendants] fall squarely within the class of criminals targeted by the relevant
forfeiture statutes. . . . (3) The statutes of conviction and the Sentencing Guidelines authorize heavy prison sentences
and fines. . . . (4) [The defendants] caused significant harm . . . .”).
185 United States v. Levesque, 546 F.3d 78, 83-5 (1st Cir. 2008); See also United States v. Chin, 965 F.3d 41, 58 (1st
Cir. 2020) (“The District Court’s findings about Chin’s net worth, familial obligations, and inability to earn a
professional-level salary simply are not sufficient to ground a determination that the full forfeiture order sought by the
government would constitute the type of ‘ruinous monetary punishment[]’ that might conceivably be ‘so onerous as to
deprive a defendant of his or her future ability to earn a living’ and thus violate the Eighth Amendment’s Excessive
Fines Clause.”(quoting Levesque, 546 F.3d at 84-5)).
186 United States v. Mongol Nation, 370 F. Supp. 3d 1090, 1119-1120 (C.D. Cal. 2019) (“The Government has secured
prison sentences and significant forfeiture of the criminal organization’s assets and property, including motorcycles.
And as a result of the conviction in this case, the Government will secure forfeiture of weapons, ammunition, body
armor, and items of personal property seized during raids. The Government will also pursue fines at sentencing. Given
the punishments already secured by the United States, the forfeiture of the collective membership [trade]marks is
grossly disproportionate to the gravity of the RICO conspiracy.”).
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2. First Amendment
Forfeiture may raise First Amendment issues. The First Amendment guarantees the right of free
speech and freedom of the press.187 It generally precludes government prior restraint of
expression.188 In contrast to prior restraint, however, it generally permits punishment of the
unlawful distribution of obscene material.189 In the view of a majority of the Justices in
Alexander, the application of RICO’s provisions to confiscate the inventory of an adult
entertainment business as punishment for a RICO conviction based upon obscenity predicates
does not offend the First Amendment.190
The district court in Mongol Nation rejected a proposed preliminary forfeiture order for the
confiscation of the trademark covering a motorcycle gang’s logo.191 Although the gang had been
convicted of substantive and conspiracy RICO violations, the court held that the proposed order
would violate the First Amendment’s protections of expression and association.192
3. Right to the Assistance of Counsel
In two cases decided under the criminal forfeiture provisions of the federal drug law, the Supreme
Court held that a criminally accused’s Sixth Amendment right to the assistance of counsel does
not invalidate statutory provisions which call for the confiscation of forfeitable property paid as
attorneys’ fees or which permit the court, upon a probable cause showing of forfeitability, to
freeze assets which the accused had intended to use to pay attorneys’ fees.193 The same can be
said of the RICO forfeiture provisions.194 The Sixth Amendment right to the assistance of counsel
of choice does preclude the pre-trial restraint of untainted property needed to retain and
compensate counsel,195 but does not require post-conviction access to confiscated substitute
assets.196

187 “Congress shall make no law ... abridging the freedom of speech, or of the press.... ” U.S. CONST. amend. I.
188 Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931); Alexander v. United States, 509 U.S. 544, 550 (1993).
189 Ginzburg v. United States, 383 U.S. 463, 464-65 (1966); Smith v. United States, 431 U.S. 291, 296 (1977).
190 Alexander, 509 U.S. at 550-58.
191 Mongol Nation, 370 F. Supp. 3d at 1130.
192 Id. at 1111-1116.
193 United States v. Monsanto, 491 U.S. 600, 614-16 (1989); Caplin & Drysdale v. United States, 491 U.S. 617, 624-32
(1989).
194 United States v. Saccoccia, 433 F.3d 19, 31 (1st Cir. 2005) (“Fees paid to attorneys from the criminal proceeds of
their clients are not held sacred. They may be reached by the government and, Congress, under RICO, has set clear
parameters for the forfeiture of attorneys’ fees.”); United States v. Borromeo, 954 F.2d 245, 249 (4th Cir. 1992); United
States v. Jefferson, 632 F. Supp. 2d 608, 616 (E.D. La. 2009) (“The Government’s argument analogizing Caplin &
Drysdale . . . and forfeiture under 21 U.S.C. 853 is persuasive. . . . In Caplin and United States v. Monsanto, the Court
held that the forfeiture provisions of § 853 contained no specific exception for property used to pay bona fide attorneys’
fees. Citing language from § 853(c) that is identical to 18 U.S.C. § 1963(c) . . . the Court offered the following:
‘Permitting a defendant to use assets for his private purposes that, under this provision, will become the property of the
United States if a conviction occurs cannot be sanctioned.’”); United States v. Wingerter, 369 F. Supp. 2d 799, 810-12
(E.D. Va. 2005).
195 Luis v. United States, 136 S. Ct. 1083, 1096 (2016); United States v. Chamberlain, 868 F.3d 290, 291 (4th Cir.
2017) (en banc); see also United States v. Hopkins, 920 F.3d 690, 702-04 (10th Cir. 2019) (holding that Luis does not
apply retroactively to cases on federal habeas review.).
196 United States v. Marshall, 872 F.3d 213, 221-22 (4th Cir. 2017).
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4. Right to Jury Trial
The Supreme Court concluded in Libretti that a property owner had no right to have a jury decide
factual disputes in a forfeiture case, because forfeiture was a sentencing matter and the Sixth
Amendment right to jury trial did not apply to sentencing questions.197 After Libretti had been
decided, the Court’s announced view of the role of the jury as a fact finder changed somewhat,
first in Apprendi, then in Blakely, and finally in Booker.198 In Booker the Court redefined the line
between sentencing factors that the Constitution allows to be assigned to the court and factors that
it insists be found by the jury as a matter of right. Henceforth, “any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved
to a jury beyond a reasonable doubt.”199 Dicta in Booker might be construed as an indication that
property owners are still bound by the holding in Libretti—there is no constitutional right to have
a jury decide factual questions in criminal forfeiture.200 The lower courts appear to agree.201
5. Forfeiture of Estate
The “forfeiture of estate” argument was among the first constitutional challenges raised and
dispatched. Article III, in its effort to protect against misuse of the law of treason, empowers
Congress to set the punishment for treason but only with the understanding that “no attainder of
treason shall work corruption of blood, or forfeiture.”202

197 Libretti v. United States, 516 U.S. 29, 48-9 (1995) (“Libretti would have us equate [his] statutory right to a jury
determination of forfeitability with the familiar Sixth Amendment right to a jury determination of guilt or innocence.
See, e.g., United States v. Gaudin, 515 U.S. 506, 511 (1995) (‘The Constitution gives a criminal defendant the right to
demand that a jury find him guilty of all the elements of the crime with which he is charged’). Without disparaging the
importance of the right provided by Rule 31(e), our analysis of the nature of criminal forfeiture as an aspect of
sentencing compels the conclusion that the right to a jury verdict on forfeitability does not fall within the Sixth
Amendment’s constitutional protection. Our cases have made abundantly clear that a defendant does not enjoy a
constitutional right to a jury determination as to the appropriate sentence to be imposed. See, e.g., McMillan v.
Pennsylvania, 477 U.S. 789, 93 (1986) (‘[T]here is no Sixth Amendment right to jury sentencing, even where the
sentence turns on specific findings of fact’); Cabana v. Bullock, 474 U.S. 376, 385 (1986) (‘The decision whether a
particular punishment . . . is appropriate in any given case is not one that we have ever required to be made by a
jury’).” (parallel citations omitted)).
198 Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); United States v.
Booker, 543 U.S. 220 (2005).
199 Id., 543 U.S. at 244.
200 Id. at 258 (“Most of the statute [(the Sentencing Reform Act)] is perfectly valid. See, e.g., 18 U.S.C. . . . 3554
(forfeiture). . . . ”). Section 3554 declares that “The court, in imposing a sentence on a defendant who has been found
guilty of an offense described in section 1962 [RICO] of this title. . . shall order . . . that the defendant forfeit property
to the United States in accordance with the provisions of section 1963 of this title. . . . ” 18 U.S.C. § 3554 (emphasis
added).
201 United States v. Bradley, 969 F.3d 585, 591 (6th Cir. 2020); United States v. Carpenter, 941 F.3d 1, 11-12 (1st Cir.
2019); United States v. Elbeblawy, 899 F.3d 925, 941 (11th Cir. 2018); United States v. Sigillito, 759 F.3d 913, 934-35
(8th Cir. 2014); United States v. Simpson, 741 F.3d 539, 559-60 (5th Cir. 2014); United States v. Phillips, 704 F.3d
754, 769-71 (9th Cir. 2012); United States v. Day, 700 F.3d 713, 732-33 (4th Cir. 2012); United States v. Leahy, 438
F.3d 328, 331-33 (3d Cir. 2006); United States v. Fruchter, 411 F.3d 377, 382-83 (2d Cir. 2005).
Rule 32.2(b)(5) of the Federal Rules of Criminal procedure, however, provides a limited right to have the jury
determine “whether the government has established the requisite nexus between the property and the offense
committed by the defendant.” The jury is only available following a jury’s verdict of guilty and not with respect to
substitute assets, Rule 32.2(e)(3). See, e.g., United States v. Marshall, 872 F.3d 213, 222-23 (4th Cir. 2017).
202 U.S. CONST. art. III, § 3, cl. 2.
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Article III speaks only of treason, but due process would likely preclude this type of forfeiture of
estate as a penalty for lesser crimes as well. RICO forfeiture, however, is not properly classified
as a forfeiture of estate. Forfeiture of estate occurs, when as a consequence of an offense, all of an
offender’s property is subject to confiscation, regardless of the absence of any nexus between the
property and the crime which triggered the forfeiture. RICO forfeiture is, by contrast, a
“statutory” forfeiture that turns on the relationship of the property to the crime and consequently
is not forbidden by the due process corollary of Article III.203

203 United States v. Thevis, 474 F. Supp. 134, 140-41 (N.D. Ga. 1979), abrogated on other grounds, Russello v. United
States, 464 U.S. 16, 22 (1983); United States v. Grande, 620 F.2d 1026, 1037-39 (4th Cir. 1980).
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Appendix A. Text of RICO Statutory Provisions
18 U.S.C. 1961
Definitions
As used in this chapter –
(1) “racketeering activity” means (A) any act or threat involving murder, kidnaping, 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 punishable by imprisonment for more than one year; (B) any act which is indictable under any of the
following provisions of title 18, United States Code: Section 201 (relating 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, section 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
documents), section 1029 (relating to fraud and related activity in connection with access devices), section
1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section
1343 (relating to wire fraud), section 1344 (relating to financial institution fraud), section 1351 (relating to
fraud in foreign labor contracting), section 1425 (relating to the procurement of citizenship or
nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship
papers), section 1427 (relating to the sale of naturalization or citizenship papers), sections 1461-1465
(relating to obscene matter), section 1503 (relating to obstruction 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 (relating to false statement
in application and use of passport), 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, permits, and other
documents), sections 1581-1592 (relating to peonage, slavery, and trafficking in persons), sections 1831
and 1832 (relating to economic espionage and theft of trade secrets), 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 unlawful welfare fund
payments), section 1955 (relating to the prohibition of illegal gambling businesses), section 1956 (relating
to the laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in
property derived from specified unlawful activity), section 1958 (relating to use of interstate commerce
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
(relating to interstate transportation of stolen motor vehicles), 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 documentation 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 recordings 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 contraband cigarettes), sections 2421-24 (relating to white slave
traffic), sections 175-178 (relating to biological weapons) , sections 229-229F (relating to chemical
weapons), 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) (relating to embezzlement from union funds), (D) any offense involving fraud connected with a case
under title 11 (except a case under section 157 of this title), fraud in the sale of securities, or the felonious
manufacture, importation, receiving, concealment, buying, selling, or otherwise 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 Foreign Transactions
Reporting Act, (F) any act which is indictable under the Immigration and Nationality Act, section 274
(relating to bringing in and harboring certain 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
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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 section 2332b(g)(5)(B);
(2) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto
Rico, any territory or possession of the United States, any political subdivision, or any department, agency,
or instrumentality thereof;
(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
occurred 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 a debt (A) incurred or contracted in gambling activity which was in violation of
the law of the United States, a State or political subdivision thereof, or which is unenforceable under State
or Federal law in whole or in part as to principal or interest because of the laws relating to usury, and (B)
which was incurred in connection with the business of gambling in violation of the law of the United
States, a State or political subdivision thereof, or the business of lending money or a thing of value at a rate
usurious under State or Federal law, where the usurious rate is at least twice the enforceable rate;
(7) “racketeering investigator” means any attorney or investigator so designated by the Attorney General
and charged with the duty of enforcing or carrying into effect this chapter;
(8) “racketeering investigation” means any inquiry conducted by any racketeering investigator for the
purpose of ascertaining whether any person has been involved in any violation of this chapter or of any
final order, judgment, or decree of any court of the United States, duly entered in any case or proceeding
arising under this chapter;
(9) “documentary material” includes any book, paper, document, record, recording, or other material; and
(10) “Attorney General” includes the Attorney General of the United States, the Deputy Attorney General
of the United States, the Associate Attorney General of the United States, any Assistant Attorney General
of the United States, or any employee of the Department of Justice or any employee of any department or
agency of the United States so designated by the Attorney General to carry out the powers conferred on the
Attorney General by this chapter. Any department or agency so designated may use in investigations
authorized by this chapter either the investigative provisions of this chapter or the investigative power of
such department or agency otherwise conferred by law.

18 U.S.C. 1962
Prohibited activities
(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a
pattern of racketeering activity or through collection of an unlawful debt in which such person has
participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest,
directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest
in, or the establishment 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 racketeering 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 pattern of racketeering activity or through collection of an
unlawful debt to acquire or maintain, directly or indirectly, 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
activities 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.
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(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.
18 U.S.C. 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 maintained 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, operated, 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
pursuant 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 defendant who derives profits or other proceeds
from an offense may be fined not more than twice the gross profits or other proceeds.

(b) Property subject to criminal forfeiture under this section includes –
(1) real property, including things growing on, affixed to, and found in land; and
(2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities.

(c) All right, title, and interest in property described in subsection (a) vests in the United States upon the
commission of the act giving rise to forfeiture under this section. Any such property that is subsequently
transferred to a person other than the defendant may be the subject of a special verdict of forfeiture and
thereafter shall be ordered forfeited to the United States, unless the transferee establishes in a hearing
pursuant to subsection (l) that he is a bona fide purchaser for value of such property who at the time of
purchase was reasonably without cause to believe that the property was subject to forfeiture under this
section.

(d) (1) Upon application of the United States, the court may enter a restraining order or injunction, require
the execution of a satisfactory performance bond, or take any other action to preserve the availability of
property described in subsection (a) for forfeiture under this section –
(A) upon the filing of an indictment or information charging a violation of section 1962 of this chapter
and alleging that the property with respect to which the order is sought would, in the event of
conviction, be subject to forfeiture under this section; or
(B) prior to the filing of such an indictment or information, if, after notice to persons appearing to
have an interest in the property and opportunity for a hearing, the court determines that –
(i) there is a substantial probability that the United States will prevail on the issue of forfeiture
and that failure to enter the order will result in the property being destroyed, removed from the
jurisdiction of the court, or otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property through the entry of the requested order
outweighs the hardship on any party against whom the order is to be entered:
Provided, however, That an order entered pursuant to subparagraph (B) shall be effective for not more than
ninety days, unless extended by the court for good cause shown or unless an indictment or information
described in subparagraph (A) has been filed.
(2) A temporary restraining order under this subsection may be entered upon application of the United
States without notice or opportunity for a hearing when an information or indictment has not yet been filed
with respect to the property, if the United States demonstrates that there is probable cause to believe that
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the property with respect to which the order is sought would, in the event of conviction, be subject to
forfeiture under this section and that provision of notice will jeopardize the availability of the property for
forfeiture. Such a temporary order shall expire not more than fourteen days after the date on which it is
entered, unless extended for good cause shown or unless the party against whom it is entered consents to an
extension for a longer period. A hearing requested concerning an order entered under this paragraph shall
be held at the earliest possible time, and prior to the expiration of the temporary order.
(3) The court may receive and consider, at a hearing held pursuant to this subsection, evidence and
information that would be inadmissible under the Federal Rules of Evidence.

(e) Upon conviction of a person under this section, the court shall enter a judgment of forfeiture of the
property to the United States and shall also authorize the Attorney General to seize all property ordered
forfeited upon such terms and conditions as the court shall deem proper. Following the entry of an order
declaring the property forfeited, the court may, upon application of the United States, enter such
appropriate restraining orders or injunctions, require the execution of satisfactory performance bonds,
appoint receivers, conservators, appraisers, accountants, or trustees, or take any other action to protect the
interest of the United States in the property ordered forfeited. Any income accruing to, or derived from, an
enterprise or an interest in an enterprise which has been ordered forfeited under this section may be used to
offset ordinary and necessary expenses to the enterprise which are required by law, or which are necessary
to protect the interests of the United States or third parties.

(f) Following the seizure of property ordered forfeited under this section, the Attorney General shall direct
the disposition of the property by sale or any other commercially feasible means, making due provision for
the rights of any innocent persons. Any property right or interest not exercisable by, or transferable for
value to, the United States shall expire and shall not revert to the defendant, nor shall the defendant or any
person acting in concert with or on behalf of the defendant be eligible to purchase forfeited property at any
sale held by the United States. Upon application of a person, other than the defendant or a person acting in
concert with or on behalf of the defendant, the court may restrain or stay the sale or disposition of the
property pending the conclusion of any appeal of the criminal case giving rise to the forfeiture, if the
applicant demonstrates that proceeding with the sale or disposition of the property will result in irreparable
injury, harm or loss to him. Notwithstanding 31 U.S.C. 3302(b), the proceeds of any sale or other
disposition of property forfeited under this section and any moneys forfeited shall be used to pay all proper
expenses for the forfeiture and the sale, including expenses of seizure, maintenance and custody of the
property pending its disposition, advertising and court costs. The Attorney General shall deposit in the
Treasury any amounts of such proceeds or moneys remaining after the payment of such expenses.

(g) With respect to property ordered forfeited under this section, the Attorney General is authorized to –
(1) grant petitions for mitigation or remission of forfeiture, restore forfeited property to victims of a
violation of this chapter, or take any other action to protect the rights of innocent persons which is in the
interest of justice and which is not inconsistent with the provisions of this chapter;
(2) compromise claims arising under this section;
(3) award compensation to persons providing information resulting in a forfeiture under this section;
(4) direct the disposition by the United States of all property ordered forfeited under this section by public
sale or any other commercially feasible means, making due provision for the rights of innocent persons;
and
(5) take appropriate measures necessary to safeguard and maintain property ordered forfeited under this
section pending its disposition.

(h) The Attorney General may promulgate regulations with respect to –
(1) making reasonable efforts to provide notice to persons who may have an interest in property ordered
forfeited under this section;
(2) granting petitions for remission or mitigation of forfeiture;
(3) the restitution of property to victims of an offense petitioning for remission or mitigation of forfeiture
under this chapter;
(4) the disposition by the United States of forfeited property by public sale or other commercially feasible
means;
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(5) the maintenance and safekeeping of any property forfeited under this section pending its disposition;
and
(6) the compromise of claims arising under this chapter.
Pending the promulgation of such regulations, all provisions of law relating to the disposition of property,
or the proceeds from the sale thereof, or the remission or mitigation of forfeitures for violation of the
customs laws, and the compromise of claims and the award of compensation to informers in respect of such
forfeitures shall apply to forfeitures incurred, or alleged to have been incurred, under the provisions of this
section, insofar as applicable and not inconsistent with the provisions hereof. Such duties as are imposed
upon the Customs Service or any person with respect to the disposition of property under the customs law
shall be performed under this chapter by the Attorney General.

(i) Except as provided in subsection (l), no party claiming an interest in property subject to forfeiture under
this section may –
(1) intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this
section; or
(2) commence an action at law or equity against the United States concerning the validity of his alleged
interest in the property subsequent to the filing of an indictment or information alleging that the property is
subject to forfeiture under this section.

(j) The district courts of the United States shall have jurisdiction to enter orders as provided in this section
without regard to the location of any property which may be subject to forfeiture under this section or
which has been ordered forfeited under this section.

(k) In order to facilitate the identification or location of property declared forfeited and to facilitate the
disposition of petitions for remission or mitigation of forfeiture, after the entry of an order declaring
property forfeited to the United States the court may, upon application of the United States, order that the
testimony of any witness relating to the property forfeited be taken by deposition and that any designated
book, paper, document, record, recording, or other material not privileged be produced at the same time and
place, in the same manner as provided for the taking of depositions under Rule 15 of the Federal Rules of
Criminal Procedure.

(l) (1) Following the entry of an order of forfeiture under this section, the United States shall publish notice
of the order and of its intent to dispose of the property in such manner as the Attorney General may direct.
The Government may also, to the extent practicable, provide direct written notice to any person known to
have alleged an interest in the property that is the subject of the order of forfeiture as a substitute for
published notice as to those persons so notified.
(2) Any person, other than the defendant, asserting a legal interest in property which has been ordered
forfeited to the United States pursuant to this section may, within thirty days of the final publication of
notice or his receipt of notice under paragraph (1), whichever is earlier, petition the court for a hearing to
adjudicate the validity of his alleged interest in the property. The hearing shall be held before the court
alone, without a jury.
(3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and
extent of the petitioner’s right, title, or interest in the property, the time and circumstances of the
petitioner’s acquisition of the right, title, or interest in the property, any additional facts supporting the
petitioner’s claim, and the relief sought.
(4) The hearing on the petition shall, to the extent practicable and consistent with the interests of justice, be
held within thirty days of the filing of the petition. The court may consolidate the hearing on the petition
with a hearing on any other petition filed by a person other than the defendant under this subsection.
(5) At the hearing, the petitioner may testify and present evidence and witnesses on his own behalf, and
cross-examine witnesses who appear at the hearing. The United States may present evidence and witnesses
in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the
hearing. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant
portions of the record of the criminal case which resulted in the order of forfeiture.
(6) If, after the hearing, the court determines that the petitioner has established by a preponderance of the
evidence that –
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(A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest
renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested
in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant
at the time of the commission of the acts which gave rise to the forfeiture of the property under this
section; or
(B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and
was at the time of purchase reasonably without cause to believe that the property was subject to
forfeiture under this section;
the court shall amend the order of forfeiture in accordance with its determination.
(7) Following the court’s disposition of all petitions filed under this subsection, or if no such petitions are
filed following the expiration of the period provided in paragraph (2) for the filing of such petitions, the
United States shall have clear title to property that is the subject of the order of forfeiture and may warrant
good title to any subsequent purchaser or transferee.

(m) If any of the property described in subsection (a), as a result of any act or omission of the defendant –
(1) cannot be located upon the exercise of due diligence;
(2) has been transferred or sold to, or deposited with, a third party;
(3) has been placed beyond the jurisdiction of the court;
(4) has been substantially diminished in value; or
(5) has been commingled with other property which cannot be divided without difficulty;
the court shall order the forfeiture of any other property of the defendant up to the value of any property
described in paragraphs (1) through (5).

18 U.S.C. 1964
Civil remedies
(a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of
section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person
to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the
future activities or investments of any person, including, but not limited to, prohibiting any person from
engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate
or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for
the rights of innocent persons.
(b) The Attorney General may institute proceedings under this section. Pending final determination thereof,
the court may at any time enter such restraining orders or prohibitions, or take such other actions, including
the acceptance of satisfactory performance bonds, as it shall deem proper.
(c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter
may sue therefor in any appropriate United States district court and shall recover threefold the damages he
sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon
any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a
violation of section 1962. The exception contained in the preceding sentence does not apply to an action
against any person that is criminally convicted in connection with the fraud, in which case the statute of
limitations shall start to run on the date on which the conviction becomes final.
(d) A final judgment or decree rendered in favor of the United States in any criminal proceeding brought by
the United States under this chapter shall estop the defendant from denying the essential allegations of the
criminal offense in any subsequent civil proceeding brought by the United States.
18 U.S.C. 1965
Venue and process
(a) Any civil action or proceeding under this chapter against any person may be instituted in the district
court of the United States for any district in which such person resides, is found, has an agent, or transacts
his affairs.
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(b) In any action under section 1964 of this chapter in any district court of the United States in which it is
shown that the ends of justice require that other parties residing in any other district be brought before the
court, the court may cause such parties to be summoned, and process for that purpose may be served in any
judicial district of the United States by the marshal thereof.
(c) In any civil or criminal action or proceeding instituted by the United States under this chapter in the
district court of the United States for any judicial district, subpenas issued by such court to compel the
attendance of witnesses may be served in any other judicial district, except that in any civil action or
proceeding no such subpena shall be issued for service upon any individual who resides in another district
at a place more than one hundred miles from the place at which such court is held without approval given
by a judge of such court upon a showing of good cause.
(d) All other process in any action or proceeding under this chapter may be served on any person in any
judicial district in which such person resides, is found, has an agent, or transacts his affairs.
18 U.S.C. 1966
Expedition of actions
In any civil action instituted under this chapter by the United States in any district court of the United
States, the Attorney General may file with the clerk of such court a certificate stating that in his opinion the
case is of general public importance. A copy of that certificate shall be furnished immediately by such clerk
to the chief judge or in his absence to the presiding district judge of the district in which such action is
pending. Upon receipt of such copy, such judge shall designate immediately a judge of that district to hear
and determine action.
18 U.S.C. 1967
Evidence
In any proceeding ancillary to or in any civil action instituted by the United States under this chapter the
proceedings may be open or closed to the public at the discretion of the court after consideration of the
rights of affected persons.
18 U.S.C. 1968
Civil investigative demand
(a) Whenever the Attorney General has reason to believe that any person or enterprise may be in
possession, custody, or control of any documentary materials relevant to a racketeering investigation, he
may, prior to the institution of a civil or criminal proceeding thereon, issue in writing, and cause to be
served upon such person, a civil investigative demand requiring such person to produce such material for
examination.

(b) Each such demand shall—
(1) state the nature of the conduct constituting the alleged racketeering violation which is under
investigation and the provision of law applicable thereto;
(2) describe the class or classes of documentary material produced thereunder with such definiteness and
certainty as to permit such material to be fairly identified;
(3) state that the demand is returnable forthwith or prescribe a return date which will provide a reasonable
period of time within which the material so demanded may be assembled and made available for inspection
and copying or reproduction; and
(4) identify the custodian to whom such material shall be made available.

(c) No such demand shall—
(1) contain any requirement which would be held to be unreasonable if contained in a subpena duces
tecum issued by a court of the United States in aid of a grand jury investigation of such alleged racketeering
violation; or
(2) require the production of any documentary evidence which would be privileged from disclosure if
demanded by a subpena duces tecum issued by a court of the United States in aid of a grand jury
investigation of such alleged racketeering violation.
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(d) Service of any such demand or any petition filed under this section may be made upon a person by—
(1) delivering a duly executed copy thereof to any partner, executive officer, managing agent, or general
agent thereof, or to any agent thereof authorized by appointment or by law to receive service of process on
behalf of such person, or upon any individual person;
(2) delivering a duly executed copy thereof to the principal office or place of business of the person to be
served; or
(3) depositing such copy in the United States mail, by registered or certified mail duly addressed to such
person at its principal office or place of business.

(e) A verified return by the individual serving any such demand or petition setting forth the manner of such
service shall be prima facie proof of such service. In the case of service by registered or certified mail, such
return shall be accompanied by the return post office receipt of delivery of such demand.

(f) (1) The Attorney General shall designate a racketeering investigator to serve as racketeer document
custodian, and such additional racketeering investigators as he shall determine from time to time to be
necessary to serve as deputies to such officer.
(2) Any person upon whom any demand issued under this section has been duly served shall make such
material available for inspection and copying or reproduction to the custodian designated therein at the
principal place of business of such person, or at such other place as such custodian and such person
thereafter may agree and prescribe in writing or as the court may direct, pursuant to this section on the
return date specified in such demand, or on such later date as such custodian may prescribe in writing. Such
person may upon written agreement between such person and the custodian substitute for copies of all or
any part of such material originals thereof.
(3) The custodian to whom any documentary material is so delivered shall take physical possession
thereof, and shall be responsible for the use made thereof and for the return thereof pursuant to this chapter.
The custodian may cause the preparation of such copies of such documentary material as may be required
for official use under regulations which shall be promulgated by the Attorney General. While in the
possession of the custodian, no material so produced shall be available for examination, without the consent
of the person who produced such material, by any individual other than the Attorney General. Under such
reasonable terms and conditions as the Attorney General shall prescribe, documentary material while in the
possession of the custodian shall be available for examination by the person who produced such material or
any duly authorized representatives of such person.
(4) Whenever any attorney has been designated to appear on behalf of the United States before any court
or grand jury in any case or proceeding involving any alleged violation of this chapter, the custodian may
deliver to such attorney such documentary material in the possession of the custodian as such attorney
determines to be required for use in the presentation of such case or proceeding on behalf of the United
States. Upon the conclusion of any such case or proceeding, such attorney shall return to the custodian any
documentary material so withdrawn which has not passed into the control of such court or grand jury
through the introduction thereof into the record of such case or proceeding.
(5) Upon the completion of—
(i) the racketeering investigation for which any documentary material was produced under this
chapter, and
(ii) any case or proceeding arising from such investigation,
the custodian shall return to the person who produced such material all such material other than copies
thereof made by the Attorney General pursuant to this subsection which has not passed into the control of
any court or grand jury through the introduction thereof into the record of such case or proceeding.
(6) When any documentary material has been produced by any person under this section for use in any
racketeering investigation, and no such case or proceeding arising therefrom has been instituted within a
reasonable time after completion of the examination and analysis of all evidence assembled in the course of
such investigation, such person shall be entitled, upon written demand made upon the Attorney General, to
the return of all documentary material other than copies thereof made pursuant to this subsection so
produced by such person.
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(7) In the event of the death, disability, or separation from service of the custodian of any documentary
material produced under any demand issued under this section or the official relief of such custodian from
responsibility for the custody and control of such material, the Attorney General shall promptly—
(i) designate another racketeering investigator to serve as custodian thereof, and
(ii) transmit notice in writing to the person who produced such material as to the identity and address
of the successor so designated.
Any successor so designated shall have with regard to such materials all duties and responsibilities imposed
by this section upon his predecessor in office with regard thereto, except that he shall not be held
responsible for any default or dereliction which occurred before his designation as custodian.

(g) Whenever any person fails to comply with any civil investigative demand duly served upon him under
this section or whenever satisfactory copying or reproduction of any such material cannot be done and such
person refuses to surrender such material, the Attorney General may file, in the district court of the United
States for any judicial district in which such person resides, is found, or transacts business, and serve upon
such person a petition for an order of such court for the enforcement of this section, except that if such
person transacts business in more than one such district such petition shall be filed in the district in which
such person maintains his principal place of business, or in such other district in which such person
transacts business as may be agreed upon by the parties to such petition.

(h) Within twenty days after the service of any such demand upon any person, or at any time before the
return date specified in the demand, whichever period is shorter, such person may file, in the district court
of the United States for the judicial district within which such person resides, is found, or transacts
business, and serve upon such custodian a petition for an order of such court modifying or setting aside
such demand. The time allowed for compliance with the demand in whole or in part as deemed proper and
ordered by the court shall not run during the pendency of such petition in the court. Such petition shall
specify each ground upon which the petitioner relies in seeking such relief, and may be based upon any
failure of such demand to comply with the provisions of this section or upon any constitutional or other
legal right or privilege of such person.

(i) At any time during which any custodian is in custody or control of any documentary material delivered
by any person in compliance with any such demand, such person may file, in the district court of the United
States for the judicial district within which the office of such custodian is situated, and serve upon such
custodian a petition for an order of such court requiring the performance by such custodian of any duty
imposed upon him by this section.

(j) Whenever any petition is filedc in any district court of the United States under this section, such court
shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as
may be required to carry into effect the provisions of this section.
18 U.S.C. 1959
Violent crimes in aid of racketeering
(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay,
anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of
gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity,
murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily
injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of
any State or the United States, or attempts or conspires so to do, shall be punished-
(1) for murder, by death or life imprisonment, or a fine under this title, or both; and for kidnapping, by
imprisonment for any term of years or for life, or a fine under this title, or both;
(2) for maiming, by imprisonment for not more than thirty years or a fine under this title, or both;
(3) for assault with a dangerous weapon or assault resulting in serious bodily injury, by imprisonment for
not more than twenty years or a fine under this title, or both;
(4) for threatening to commit a crime of violence, by imprisonment for not more than five years or a fine
under this title, or both;
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(5) for attempting or conspiring to commit murder or kidnapping, by imprisonment for not more than ten
years or a fine under this title, or both; and
(6) for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon,
or assault resulting in serious bodily injury, by imprisonment for not more than three years or a fine of 1
under this title, or both.

(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, corporation, association, or other legal entity, and any union or
group of individuals associated in fact although not a legal entity, which is engaged in, or the activities of
which affect, interstate or foreign commerce.
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Appendix B. Selected Bibliography
Articles and Books
Douglas E. Abrams, Crime Legislation and the Public Interest: Lessons From Civil RICO, 50
SMU L. REV. 33 (1996).
Diane Marie Amann, Spotting Money Launderers: A Better Way to Fight Organized Crime? 27
SYRACUSE J. INT’L L. & COM. 199 (2000).
American Law Reports, Federal, Validity, Construction, and Application of Provision of
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. §1961 et seq., Supreme Court
Cases, 171 ALR FED. 1 (2020-2021).
G. Robert Blakey, Time-Bars: RICO-Criminal and Civil-Federal and States, 88 NOTRE DAME L.
REV. 1581 (2013).
G. Robert Blakey & Michael Gerardi, Eliminating Overlap, or Creating a Gap? Judicial
Interpretation of the Private Securities Litigation Reform Act of 1995 and RICO, 28 NOTRE
DAME J. L. ETHICS & PUB. POL’Y 435 (2014).
G. Robert Blakey & Brian Gettings, Racketeer Influenced and Corrupt Organizations (RICO):
Basic Concepts—Criminal and Civil Remedies, 53 TEMP. L. Q. 1009 (1980).
G. Robert Blakey & Ronald Goldstock, On the Waterfront: RICO and Labor Racketeering, 17
AM. CRIM. L. REV. 341 (1980).
G. Robert Blakey & Thomas Perry, An Analysis of the Myths That Bolster Efforts to Rewrite
RICO and the Various Proposals for Reform: “Mother of God—Is This the End of RICO?”, 43
VAND. L. REV. 851 (1990).
G. Robert Blakey & Kevin P. Roddy, Reflections on Reves v. Ernst & Young: Its Meaning and
Impact on Substantive, Accessory, Aiding Abetting and Conspiracy Liability Under RICO, 33 AM.
CRIM. L. REV. 1345 (1996).
John K. Cornwell, RICO Run Amok, 71 SMU L. REV. 1017 (2018).
John E. Floyd, RICO STATE BY STATE: A GUIDE TO LITIGATION UNDER THE STATE
RACKETEERING STATUTES (2011).
Susan Getzendanner, Judicial “Pruning” of “Garden Variety Fraud”: Civil RICO Cases Does
Not Work: it’s Time for Congress to Act, 43 VAND. L. REV. 673 (1990).
Michael Goldsmith, Resurrecting RICO: Removing Immunity for White-Collar Crime, 41 HARV.
J. LEG. 281 (2004).
Michael Goldsmith & Mark Jay Linderman, Civil RICO Reform: The Gatekeeper Concept, 43
VAND. L. REV. 735 (1990).
Rand D. Gordon, Of Gangs and Gaggles: Can a Corporation Be Part of an Association-in-Fact
RICO Enterprise? Linguistic, Historical, and Rhetorical Perspectives, 53 U. Pa. J. Bus. L. 973
(2014).
James B. Jacobs, Eileen M. Cunningham, & Kimberly Friday, The RICO Trusteeships After
Twenty Years: A Progress Report, 19 LAB. LAWYER 419 (2004).
John C. Jeffries, Jr. & John Gleeson, The Federalization of Organized Crime: Advantages of
Federal Prosecution, 46 HASTINGS L. J. 1095 (1995).
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Gerard E. Lynch, A Conceptual, Practical and Political Guide to RICO Reform, 43 VAND. L.
REV. 769 (1990).
——, A Reply to Michael Goldsmith, 88 COLUM. L. REV. 802 (1988).
——, RICO: The Crime of Being a Criminal, Pts. I & II, III & IV, 87 COLUM. L. REV. 661, 920
(1987).
John L. McClellan, The Organized Crime Control Act (S.30) or its Critics: Which Threatens Civil
Liberties? 46 NOTRE DAME LAWYER. 55 (1970).
Yvette M. Mastin, RICO Conspiracy: Dismantles the Mexican Mafia & Disables Procedural Due
Process, 27 WM. MITCHELL L. REV. 2295 (2001).
Jeremy M. Miller, RICO and Conspiracy Construction: The Mischief of the Economic Model, 104
COMM. L. J. 26 (1999).
John M. Nonna & Melissa P. Corrado, RICO Reform: “Weeding Out” Garden Variety Disputes
Under the Racketeer Influenced and Corrupt Organizations Act, 64 ST. JOHN’S L. REV. 825
(1990).
Herbert R. Northrup & Charles H. Steen, Union “Corporate Campaigns” as Blackmail: The
RICO Battle at Bayou Steel, 22 HARV. J. L. & PUB. POL’Y 771 (1999).
Pamela Bucy Pierson, RICO Trends: From Gangsters to Class Actions, 65 S.C. L.REV. 213
(2013).
Jed S. Rafoff, Howard W. Goldstein, Eric H. Queen, RICO: CIVIL AND CRIMINAL LAW AND
STRATEGY (2015).
Terrance G. Reed, The Defense Case for RICO Reform, 43 VAND. L. REV. 691 (1990).
Thane Rehn, RICO and the Commerce Clause: A Reconsideration of the Scope of Federal
Criminaol Law, 108 COLUM. L. REV. 1991 (2008).
Brian Slocum, RICO and the Legislative Supremacy Approach to Federal Criminal Lawmaking,
31 LOY. U. CHI. L. J. 639 (2000).
David B. Smith & Terrance G. Reed, CIVIL RICO (2019).
Laurence A. Steckman, RICO Section 1962(c) Enterprises and the Present State of the
“Distinctness Requirement” in the Second, Third, and Seventh Circuits, 21 TOURO L. REV. 1083
(2006).
Barry Tarlow, RICO: The New Darling of the Prosecutor’s Nursery, 49 FORDHAM L. REV. 165
(1980).
United States Department of Justice, Criminal Division, Organized Crime and Racketeering
Section, Criminal RICO: 18 U.S.C. §§1961-1968 – A Manual for Federal Prosecutors (6th ed.
2016).
____, Violent Crimes in Aid of Racketeering 18 U.S.C. §1959 – A Manual for Federal
Prosecutors (Dec. 2006)
United States House of Representatives, Committee on the Judiciary, Subcommittee on
Intellectual Property and Judicial Administration, RICO Amendments Act of 1991, 102d Cong.,
1st Sess. (1991).
——, Subcommittee on Crime, RICO Reform Act of 1989, 101st Cong., 1st Sess. (1989).
——, Subcommittee on Criminal Justice, RICO Reform, 100th Cong., 1st & 2d Sess. (1988).
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——, RICO Reform, Pts. 1 & 2, 99th Cong., 1st & 2d Sess. (1986).
United States Senate, Committee on Governmental Affairs, Permanent Subcommittee on
Investigations, Federal Government’s Use of Trusteeships Under the RICO Statute, 101st Cong.,
1st Sess. (1989).
——, Committee on the Judiciary, Racketeer Influenced and Corrupt Organizations Reform Act,
101st Cong., 1st Sess. (1989).
——, Proposed RICO Reform Legislation, 100th Cong., 1st Sess. (1987).
Teresa Wallbaum, Novel Legal Issues in Gang Prosecutions, 68 DOJ J. FED, L. & PRAC. 99
(2020).
Notes and Comments
Bianca Ciarroni, Comment. From Italian Mafia to Suppressing Societal Challenges: The
Evolution of Federal Criminal RICO and Constitutional Objections Against It, 51 J. MARSHALL
L. REV. 647 (2018).
Brian Goodwin, Note. Civil Versus Criminal RICO and the “Eradication” of La Cosa Nostra, 28
NEW ENG. J. CRIM. & CIV. CONFINEMENT 279 (2002).
Derek Keenan, Note. The Game of RICO: A Powerful Prosecutorial Tool versus Strict Legislative
Limitations. 69 DEPAUL L. REV. 827 (2020).
Ryan Stai. Note. Counteracting Theft and Fraud: The Applicability of RICO to Organized Retail
Crime, 88 MINN. L. REV. 1391 (2004).
Christopher L. McCall. Comment. Equity Up in Smoke: Civil RICO, Disgorgement, and United
States v. Philip Morris, 74 FORDHAM L. REV. 2461 (2006).
Jacob Poorman. Comment. Exercising the Passive Virtues of Interpreting Civil RICO “Business
or Property,” 75 U. CHI. L. REV. 1773 (2008).
A. Lamidas Sawkar. Note. From the Mafia to Milking Cows: State RICO Act Expansion, 41 ARIZ.
L. REV. 1133 (1999).
Patrick Wackerly. Comment. Personal Versus Property Harm and Civil RICO Standing, 73 U.
CHI. L. REV.1513 (2006).
Amy L. Higgins. Note. Pimpin’ Ain’t Easy Under the Eleventh Circuit’s Broad RICO Enterprise
Standard: United States v. Pipkins, 73 U. CIN. L. REV. 1643 (2005).
R. Stephen Stigall. Comment. Preventing Absurd Application of RICO: A Proposed Amendment
to Congress’s Definition of ‘Racketeering Activity’ in the Wake of National Organization of
Women, Inc. v. Scheidler, 68 TEMP. L. Q. 223 (1995).
Brian J. Murray, Note, Protesters, Extortion, and Coercion: Preventing RICO From Chilling First
Amendment Freedoms, 75 NOTRE DAME L. REV. 691 (1999).
Steven T. Ieronimo. Note. RICO: Is It a Panacea or a Bitter Pill for Labor Unions, Union
Democracy and Collective Bargaining? 11 HOFSTRA LAB. L. J. 499 (1994).
David Larve, Brita Nordstrom, Emma Anspach, Steven Floyd, and Tyler Swafford, Thirty-Fifth
Annual Survey of White Collar Crime: Racketeer Influenced and Corrupt Organizations, 57 AM.
CRIM. L. REV. 1191 (2020).

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RICO: A Brief Sketch

Appendix C. State RICO Citations204
ARIZ. REV. STAT. ANN. §§ 13-2301, 13-2312 to 13-2315;
NEV. REV. STAT. §§ 207.350 to 207.520;
ARK. CODE ANN. §§ 5-74-101 to 5-74-109;
CAL. PENAL CODE §§ 186 to 186.8;
N.J. STAT. ANN. §§ 2C:41-1 to 2C:41-6.2;
COLO. REV. STAT. §§ 18-17-101 to 18-17-109;
N.M. STAT. ANN. §§ 30-42-1 to 30-42-6;
CONN. GEN. STAT. ANN. §§ 53-393 to 53-403;
N.Y. PENAL LAW §§ 460.00 to 460.80;
DEL. CODE tit.11 §§ 1501 to 1511;
N.C. GEN. STAT. §§ 75D-1 to 75D-14;
FLA. STAT. ANN. §§ 772.101 tom 772.19, 895.01 to 895.09;
N.D. CENT. CODE §§ 12.1-06.1-01 to 12.1-06.1-08;
GA. CODE ANN. §§ 16-14-1 to 16-14-15;
OHIO REV. CODE §§ 2923.31 to 2923.36;
HAWAII REV. STAT. §§ 842-1 to 842-12;
OKLA. STAT. ANN. tit.22 §§ 1401 to 1419;
IDAHO CODE §§ 18-7801 to 18-7805;
ORE. REV. STAT. §§ 166.715 to 166.735;
IND. CODE ANN. §§ 35-45-6-1 to 35-45-6-2;
PA. STAT. ANN. tit.18 § 911;
IOWA CODE ANN. §§ 706A.1 to 706A.5;
R.I. GEN. LAWS §§ 7-15-1 to 7-15-11;
KY. REV. STAT. § 506.120;
TENN. CODE ANN. §§ 39-12-201to 39-12-210;
LA. REV. STAT. ANN.§§ 15:1351 to 15:1356;
TEX. PENAL CODE §§ 71.01 to 71.05;
MASS. GEN. LAWS ANN. ch. 271A §§ 1 to 3;
UTAH CODE ANN. §§ 76-10-1601 to 76-10-1610;
MICH. COMP. LAWS ANN. §§ 750.159f to 750.159x;
VA. CODE §§ 18.2-512 to 18.2-517;
MINN. STAT. ANN. §§ 609.901 to 609.912;
WASH. REV. CODE ANN. §§ 9A.82.010 to 9A.82.170;
MISS. CODE §§ 97-43-1 to 97-43-11;
W.VA. CODE ANN. §§ 61-13-1 to 61-13-6;
NEB. REV. STAT. ANN. §§ 28-1352 to 28-1356;
WIS. STAT. ANN. §§ 946.80 to 946.88.

Author Information

Charles Doyle

Senior Specialist in American Public Law

204 For an early comparative analysis of the content of many of the state RICO provisions, see G. Robert Blakey &
Thomas Perry, An Analysis of the Myths that Bolster Efforts to Rewrite RICO and the Various Proposals for Reform:
“Mother of God—Is This the End of RICO?, 43 VAND. L. REV. 851, 988-1011 (1990); see also John E. Floyd, RICO
STATE BY STATE: A GUIDE TO LITIGATION UNDER THE STATE RACKETEERING STATUTES (2011).
A few states do not have RICO statutes as such, but have enacted provisions which enhance the penalties for, and
provide procedural tools against, various forms of commercialized criminal activity, frequently modeled after the
federal drug kingpin statute, 21 U.S.C. § 848, see, e.g., ILL. COMP. LAWS ANN. ch.725 §§175/1 to 175/9 (narcotics
racketeering); MD. CODE ANN. CRIM. LAW §5-613 (drug kingpin).
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RICO: A Brief Sketch

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