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 (1) the forfeiture of any property acquired through a RICO violation and of any property interest in the enterprise involved in the violation; (2) imprisonment for not more than twenty years, or for life if one of the predicate offenses carries such a penalty; and/or (3) 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 potentially constrained by the Excessive Fines Clause and perhaps a cruel and unusual punishment disproportionality analysis.
RICO violations also subject the offender to civil liability. The courts may award anyone whose business or property is injured 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. RICO's civil provisions have been often criticized and, at one time, commentators urged Congress to revise them. 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.
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
(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: (1) forfeiture of any property acquired through a RICO violation and of any property interest in the enterprise involved in the violation; (2) imprisonment for not more than twenty years, or life if one of the predicate offenses carries such a penalty; and/or (3) 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 those statutes. 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 whose business or property is injured by a RICO violation treble damages, costs and attorneys' 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 of constitutional grounds and have generally survived.18
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
Even though governmental entities may constitute a corrupted RICO enterprise24 or in some instances the victims of a RICO offense,25 courts have not considered them to be "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
RICO addresses four forms of illicit activity reflected in the four subsections of § 1962: (1) acquiring or operating an enterprise using racketeering proceeds; (2) controlling an enterprise using racketeering activities; (3) conducting the affairs of an enterprise using racketeering activities; and (4) 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
(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,
To 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
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
(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 must 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
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, directly or indirectly, 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
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), 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
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 under the conspiracy provisions.52
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
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, Extortion, |
|
|
Gambling, |
|
|
Robbery, |
|
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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. § 932 (straw purchasing)
18 U.C.S. § 933 (trafficking in firearms)
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)
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]
(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)
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 hand, does not preclude a subsequent RICO prosecution, nor is either conviction or acquittal a bar to a subsequent RICO civil action.62
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 § 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
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 threat of continuity. In other cases, the threat of continuity may be established by showing that the predicate acts or offenses are part of an 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
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 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 activity,77 but collection of an unlawful debt may also trigger RICO liability without the otherwise necessary "pattern of racketeering activity."78
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 v. United States 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
"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
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
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. v. Eurpean Community 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 extraterritorial application,95 but that RICO's civil liability provision applies only to injuries suffered domestically.96
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.
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 twenty 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 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 twenty 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 a criminal conviction) by virtue of the RICO predicate's status as a money laundering predicate.104
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 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
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 Grp.] 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 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 "This does not preclude recovery for all economic harms that result from personal injuries."116
"Fraud in the sale of securities" is a RICO predicate offense.117 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.118 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.119
Although the United States is apparently not a "person" that may sue for treble damages under RICO,120 the term does include state and local governmental entities.121 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.122 Nor in most instances have the courts been receptive to RICO claims based solely on allegations that the defendant aided and abetted commission of the underlying RICO violation.123
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.124 The government has invoked this authority relatively infrequently, primarily to rid various unions of organized crime elements and other forms of corruption.125 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.126
On the procedural side, RICO's long-arm jurisdictional provisions authorize nationwide service of process.127 In addition, the Supreme Court has held that (1) state trial courts of general jurisdiction have concurrent jurisdiction over federal civil RICO claims;128 (2) under the appropriate circumstances, parties may agree to make potential civil RICO claims subject to arbitration;129 (3) in the absence of an impediment to state regulation, the McCarran-Ferguson Act does not bar civil RICO claims based on insurance fraud allegations;130 and (4) the Clayton Act's four-year period of limitation applies to civil RICO claims as well,131 and that the period begins when the victim discovers or should have discovered the injury.132
Violence in aid of racketeering (VICAR), under 18 U.S.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.133 "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.'"134
The list of predicate state and federal offenses consists of
The penalties for a VICAR violation turn upon the nature of the predicate offense:
Accomplices face the same sanctions.137
VICAR uses the RICO definition of "racketeering activity"138 and the RICO description of "enterprise,"139 but VICAR does not define murder or any of the other predicate offenses. The omission initially introduced 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.140 In the case of murder, the federal appellate courts appear to look to the substantive law of the state in which murder, the predicate offense, occurred.141
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,142 by obligations imposed by virtue of membership in gang,143or by expectations of a leader of an enterprise.144 That purpose, however, need not be the sole purpose or even the main purpose.145
Juveniles convicted of murder in aid of racketeering have sometimes challenged their sentences on grounds of Eighth Amendment limitations.146 In Miller v. Alabama, 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.147 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.148 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."149 Most recently, the Supreme Court in Jones v. Mississippi150observed that a juvenile who commits a homicide when under the age of eighteen 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.151 A number of lower federal courts have recognized Miller protection claims from under-aged VICAR murder defendants, but upheld lengthy terms of imprisonment as a matter of sentencing discretion.152
The Eighth Amendment also cabins sentencing authority in capital cases. It forbids imposing the death penalty upon juveniles;153 execution of the mentally "retarded";154 and forbids sentencing to death those convicted of felony-murder who neither killed, attempted to kill, nor intended to kill.155 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.156 Savage, who ordered the firebombing that killed his intended victim and five other occupants of the house, argued unsuccessfully that the felony-murder limitation in Enmund v. Florida should be extended to accomplices who incur liability by operation of the transferred intent doctrine.157
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.
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.158 The powers which the Constitution does not confer upon the federal government, it reserves to the states and the people.159 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.160 The courts have yet to agree.161
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, courts have found that neither presents insurmountable obstacles in most instances.
The Constitution's Double Jeopardy Clause commands that no person "be subject for the same offence to be twice put in jeopardy of life or limb."162 In general terms, it condemns multiple prosecutions or multiple punishments for the same offense.163 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.164 Nevertheless, the courts have concluded that Congress did intend to authorize "consecutive sentences for both predicate the acts and the RICO offense,"165 as well as for both the substantive RICO offense and the RICO conspiracy to commit the substantive RICO offense.166
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.167 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 involving different predicate offenses, enterprises, or patterns.168 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 corrupt activity took place under each charge."169 The Supreme Court's confirmation in Gamble v. 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.170
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.171 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.172 Moreover, as time goes on, prosecutions are less likely to rely on pre-RICO enactment predicate offenses.173
"[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."174 Vagueness became a more common constitutional object to RICO, after Justice Scalia and three other Justices implied its vulnerability to such an attack.175 Subsequent lower courts appear to have uniformly rejected the suggestion that RICO is unconstitutionally vague either generally or as applied to the facts before them.176
The Eighth Amendment's Cruel and Unusual Punishment Clause precludes imposition or execution of punishment that is disproportionate to the crime of conviction. 177 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 eighteen years of age,178 but not if the sentencing authority has the discretion to impose a less severe sentence.179
RICO forfeitures can be substantial. 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.180 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.181 Prior to Harmelin, the lower courts felt that at some point RICO forfeitures might be so disproportionate as to constitute cruel and unusual punishment.182 Perhaps understandably, especially in light of developments under the Excessive Fines Clause, the argument seems to have been rarely pressed since Harmelin.183
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.184 In Bajakajian, the Court explained that a forfeiture offends the Excessive Fines Clause when it is "grossly disproportional to the gravity of the defendant's offense."185 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 the criminal activity; (3) the relationship between the charged crime and other crimes; and (4) the harm caused by the charged crime .186
Although the gravity of most RICO violations would seem to weigh heavily against most excessive fines clause challenges,187 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.188 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.189
Forfeiture may raise First Amendment issues. The First Amendment guarantees the right of free speech and freedom of the press.190 It generally precludes government prior restraint of expression.191 In contrast to prior restraint, however, it generally permits punishment of the unlawful distribution of obscene material.192 In the view of a majority of the Justices in Alexander v. United States, 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.193
The district court in United States v. Mongol Nation rejected a proposed preliminary forfeiture order for the confiscation of the trademark covering a motorcycle gang's logo.194 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.195
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.196 The same can be said of the RICO forfeiture provisions.197 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,198 but does not require post-conviction access to confiscated substitute assets.199
The Supreme Court concluded in Libretti v. United States 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.200 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 v. New Jersey, then in Blakely v. Washington, and finally in United States v. Booker.201 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."202 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.203 The lower courts appear to agree.204
The "forfeiture of estate" argument was among the first constitutional challenges raised and dispatched in RICO forfeiture cases.205 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."206
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.207
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 932 (relating to straw purchasing), section 933 (relating to trafficking in firearms), 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 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.
(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 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;
(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 –
(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.
(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.
(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.
(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;
(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.
(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.
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 (2024).
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).
Stephanie Holmes Didwania, Asset Forfeiture and Inequality, 77 Stan. L. Rev. 159 (2025).
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).
Randy 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).
Randy D. Gordon , RICO Had a Birthday! A Fifty-Year Retrospective of Questions Answered, 105 Marq. L. Rev. 131 (2021).
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).
Samantha B. Larkin, Lipstick on a Slaughtered Piggybank: Civil RICO Against "Pig Butchering" Cryptocurrency Investment Schemes, 30 Roger Williams U. L. Rev. 1 (2025).
Lucy Litt, RICO: Rethinking Interpretations of Criminal Organizations, 29 Berkeley J. Crim. L. 71 (2021).
Gerard E. Lynch, A Conceptual, Practical and Political Guide to RICO Reform, 43 Vand. L. Rev. 769 (1990).
Gerard E. Lynch, A Reply to Michael Goldsmith, 88 Colum. L. Rev. 802 (1988).
Gerard E. Lynch, 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).
Melvin L. Otey, To Punish or Not to Punish? Juvenile Offenders and Murder in Aid of Racketeering, 75 Baylor L. Rev. 593 (2023).
Melvin Otey, Does Motive Also Follow the Bullet? Transferred Intent and Violent Crimes in Aid of Racketeering, 89 Tenn. L. Rev. 377 (2022).
Melvin Otey, The Vexing Case of Venue for Violent Crimes in Aid of Racketeering, 125 Penn St. L. Rev. 737 (2021).
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 Criminal 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).
U.S. Dep't of Just., Crim. Div., Organized Crime and Racketeering Section, Criminal RICO: 18 U.S.C. §§ 1961–1968 – A Manual for Federal Prosecutors (6th ed. 2016).
U.S. Dep't of Just., Crim. Div., Organized Crime and Racketeering Section , Violent Crimes in Aid of Racketeering 18 U.S.C. §1959 – A Manual for Federal Prosecutors (Dec. 2006).
H. Rep. No. 102-312 (1991).
RICO Amendments Act of 1991: Hearing on H.R. 1717 Before the H. Comm. on the Judiciary, Subcomm. on Intellectual Prop. and Jud. Admin., 102nd Cong. (1991).
RICO Reform Act of 1989: Hearings on H.R. 1046 Before the H. Comm. on the Judiciary, Subcomm. on Crime, 101st Cong. (1989).
RICO Reform: Hearings on H.R. 3240 and Related Bills Before the H. Comm. on the Judiciary, Subcomm. on Crim. Just., 100th Cong. (1988).
RICO Reform: Hearings on H.R. 2517, H.R. 2943, H.R. 4892, H.R. 5290, H.R. 5391, and H.R. 5445 Before the H. Comm. on the Judiciary, Subcomm. on Crim. Just., 99th Cong. pts. 1–2 (1986).
Federal Government's Use of Trusteeships Under the RICO Statute: Hearings Before the S. Comm. on Gov't Affs., Permanent Subcomm. on Investigations, 101st Cong. (1989).
Racketeer Influenced and Corrupt Organizations Reform Act: Hearing on S. 438 Before the S. Comm. in the Judiciary, 101st Cong. (1989).
Proposed RICO Reform Legislation: Hearings on S. 1523 Beofre the S. Comm on the Judiciary, 100th Cong. (1987).
Teresa Wallbaum, Novel Legal Issues in Gang Prosecutions, 68 DOJ J. Fed, L. & Prac. 99 (2020).
Notes and Comments
Alicia Barry, Marina Catullo, et al., Racketeer Influenced and Corrupt Organizations, 62 Am. Crim. L. Rev. 997 (2025).
Connor Bernard, Correcting 50 Years of Confusion on the LMRA Preempting or Precluding RICO: A Missed Opportunity, 99 Chi-Kent L. Rev. 319 (2024).
Bianca Ciarroni, 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).
Michael Furey, Sitting on a Throne of Lies: Using RICO and Wire Fraud to Hold Politicians Accountable and Demonetize Campaigns that Intend to Defraud, 69 Vill. L. Rev. 649 (2024).
Brian Goodwin, Civil Versus Criminal RICO and the "Eradication" of La Cosa Nostra, 28 New Eng. J. Crim. & Civ. Confinement 279 (2002).
Amy L. Higgins. Pimpin' Ain't Easy Under the Eleventh Circuit's Broad RICO Enterprise Standard: United States v. Pipkins, 73 U. Cin. L. Rev. 1643 (2005).
Steven T. Ieronimo, RICO: Is It a Panacea or a Bitter Pill for Labor Unions, Union Democracy and Collective Bargaining? 11 Hofstra Lab. and Emp. L. J. 499 (1994).
Derek Keenan, The Game of RICO: A Powerful Prosecutorial Tool versus Strict Legislative Limitations. 69 DePaul L. Rev. 827 (2020).
Christopher L. McCall. Equity Up in Smoke: Civil RICO, Disgorgement, and United States v. Philip Morris, 74 Fordham L. Rev. 2461 (2006).
Jaylen Minefield, The Line Between Justice and Abuse: A Critical Review of State RICO Statutes in Drug Prosecutions, 57 UIC L. Rev. 829 (2024).
Brian J. Murray, Protesters, Extortion, and Coercion: Preventing RICO From Chilling First Amendment Freedoms, 75 Notre Dame L. Rev. 691 (1999).
Dale R. Patterson, Personal Jurisdiction Under 18 U.S.C. § 1965: An Interpretive Guide, 18 Charleston L. Rev. 249 (2023).
Jacob Poorman. Exercising the Passive Virtues of Interpreting Civil RICO "Business or Property," 75 U. Chi. L. Rev. 1773 (2008).
Alex Reid, Born in the U.S.A.: Analyzing the Domesticity of Judgments in the Civil RICO Context, 92 U. Cin. L. Rev. 574 (2024).
Samuel D. Romano, Prosecuting the Mob: Using RICO to Create a Domestic Extremist Statute, 80 Wash. & Lee L. Rev. 967 (2023).
A. Lamidas Sawkar. From the Mafia to Milking Cows: State RICO Act Expansion, 41 Ariz. L. Rev. 1133 (1999).
Ryan Stai. Counteracting Theft and Fraud: The Applicability of RICO to Organized Retail Crime, 88 Minn. L. Rev. 1391 (2004).
Ashley Starnes, Can Anybody Be a Gangster? Differences Between Georgia RICO and Federal RICO with Anecdotal Examples, 16 J. Marshall L. J. 306 (2023).
R. Stephen Stigall. 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).
Appendix C. State RICO Citations208
| 1. |
18 U.S.C. §§ 1961–1968 (text is appended in Appendix A). |
| 2. |
Pub. L. No. 91-452, 84 Stat. 922. |
| 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.'") (citations omitted) (quoting first Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 660 (2008); then Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 481 (1985); and then 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 or 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, 579 U.S. 325, 329–30 (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 'racketeering activity (known as predicate acts).'"). |
| 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) any 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). |
| 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 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); e.g., United States v. Mongol Nation, 56 F.4th 1244, 1246 (9th Cir. 2023) (unincorporated association). |
| 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 that it applies to 'person[s]' who are 'employed by' ... the 'enterprise.' In ordinary English one speaks of ... being employed by ... others, not oneself."); United States v. Kelly, 128 F.4th 387, 412 (2d Cir. 2025); CGC Holding Co., LLC v. Hutchens, 974 F.3d 1201, 1212 (10th Cir. 2020); Cisneros v. Petland, Inc., 972 F.3d 1204, 1216 (11th Cir. 2020); 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; Kelly, 128 F.4th at 412; CGC Holding Co., LLC, 974 F.3d at 1212; Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1345 (11th Cir. 2016). |
| 23. |
Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 574 (9th Cir. 2004) ("Churchill has pleaded sufficiently non-frivolous claims under § 1962(a) and (b). We have not required that the RICO 'person' and 'enterprise' be distinct in actions under these subsections."); Gentry v. Resol. 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); Ill. Dep't 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 Grp., LLC v. Houston Indep. Sch. Dist., 786 F.3d 400, 411–12 (5th Cir. 2015) ("RICO requires demonstrating an underlying criminal act, which entails a mens rea requirement that a governmental 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 and 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. Exec. Off. of the President, 164 F. Supp. 3d 841, 856 (E.D. Va. 2016) (federal agency); BEG Invs., 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.); see also NRP Holdings LLC v. City of Buffalo, 916 F.3d 177, 190 (2d Cir. 2019) (legislative immunity). |
| 27. |
Brittingham v. Mobil Corp., 943 F.2d 297, 303 (3d Cir. 1991) (citing 116 Cong. Rec. 35199 (1970) (statements of Rep. St. Germain), 116 Cong. Rec. 607 (1970) (statements of Sen. Byrd), and 115 Cong. Rec. 6993 (1969) (statements 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, 373 F.3d 251 (2d Cir. 2004), rev'd in part, vacated in part, 547 U.S. 451 (2006) ("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.), Societe Anonyme v. Khalil, 56 F. Supp. 2d 14, 63 (D. D.C. 1999), aff'd in part, rev'd in part, and remanded sub nom., BCCI Holdings (Lux.), S.A. v. Khalil, 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). |
| 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); In re Tether and Bitfinex Crypto Asst Litig., 576 F. Supp. 3d 55, 124 (S.D. N.Y. 2021); Francois v. Hatami, 565 F. Supp. 3d 1259, 1265 (S.D. Fla. 2021). 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 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." 18 U.S.C. § 1962(a). |
| 31. |
Churchill Vill., L.L.C. v. Gen. Elec., 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 & Assocs., 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 Prods. Co., 974 F.2d 1149, 1152 (9th Cir. 1992); United States v. Wyatt, 807 F.2d 1480, 1482 (9th Cir. 1987). |
| 33. |
Nat'l Org. 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); 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); see also Anza v. Ideal Steel Suppy Corp., 547 U.S. 451, 455 (2006)). |
| 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."); D'Addario v. D'Addario, 75 F.4th 86, 92–93 (2d Cir. 2023); Tal v. Hogan, 453 F.3d 1244, 1268 (10th Cir. 2006); Advoc. Org. for Patients and Providers v. Auto Club Ins. Ass'n, 176 F.3d 315, 321–22 (6th Cir. 1999). |
| 36. |
Churchill Vill., L.L.C., 361 F.3d 566, 574 (9th Cir. 2004); Landry v. Air Line Pilots Ass'n Int'l, 901 F.2d 404 (5th Cir. 1990), opinion modified on denial of reh'g (Apr. 27, 1990); Gentry v. Resol. Trust Corp., 937 F.2d 899, 907 (3d Cir. 1991); Whaley v. Auto Club Ins. Ass'n, 891 F. Supp. 1237, 1241–42 (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); Advoc. Org. for Patients and Providers, 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 1268–69 ("'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 Cincinnati Gas & Elec. Co. v. Gen. Elec. Co., 656 F. Supp. 49, 85 (S.D. Ohio 1986)); Nafta v. Feniks Int'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). |
| 39. |
Gibbs v. Stinson, 421 F. Supp. 3d 267, 311 (E.D. Va. 2019) (quoting Smithfield Foods, Inc. v. United Food & Com. Workers Int'l Union, 633 F. Supp. 2d 214, 222 (E.D. Va. 2008)); see also Espire ADS LLC v. Tapp Influencers Corp., 655 F. Supp. 3d 233, 25 (S.D. N.Y. 2023); 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 enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c). United States v. Muñoz-Martinez, 79 F.4th 44, 50 (1st Cir. 2023); 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 Enters., L.L.C., 983 F.3d 779, 784 (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 the 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 Serv. Corp., 452 F. Supp. 3d 1292, 1303 (S.D. Fla. 2020); Brown v. Knoxville HMA Holding, LLC, 447 F. Supp. 3d 630, 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, 579 U.S. 325, 343 (2016) (citing Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001)); Coronavirus Rep. v. Apple, Inc., 85 F.4th 948, 958 (9th Cir. 2023) ("If a corporation is the enterprise, it cannot also at the same time be the RICO defendant."); Safe Streets All. 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 Prop. Mgmt. LLC v. Build Realty, Inc., 462 F. Supp. 3d 839, 856 (S.D. Ohio 2020). |
| 43. |
Cedric Kushner Promotions, Ltd., 533 U.S. at 161. |
| 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 defendants 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 Servs., Inc., 694 F.3d 783, 791–92 (6th Cir. 2012). |
| 46. |
Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256–61 (1994). |
| 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. Huskey, 90 F.4th 651, 662 (4th Cir. 2024); United States v. Onyeri, 996 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 States v. Williams, 974 F.3d 320, 369–70 (3d Cir. 2020); United States v. Wall, 116 F.4th 1285, 1298 (11th Cir. 2024) ("'Agreement to participate in a RICO conspiracy can be prove[n] in one of two ways': (1) 'by showing an agreement on an overall objective' or (2) 'by showing that a defendant agreed personally to commit two predicate acts.'(quoting United States v. Abbell, 271 F.3d 1286.1299 (11th Cir. 2001))). |
| 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, 36–37 (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 (11th Cir. 2020), vacated and remanded, 597 U.S. 450 (2022), and cert. granted, judgment vacated sub nom., Couch v. United States, 142 S. Ct. 2895 (2022) (mem.), and adhered to in part, 56 F.4th 1291 (11th Cir. 2023) (per curiam) ; 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 ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself."). |
| 50. |
Salinas, 522 U.S. at 65–66; United States v. Watkins, 107 F.4th 607, 627 (7th Cir. 2024); United States v. Ramos-Baez, 86 F.4th 28, 48 (1st Cir. 2023); 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 1199, 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 RICO's substantive provisions.'") ; Williams, 974 F.3d at 367–68 ("The fountainhead of any criminal conspiracy is the agreement.... "); Arrington, 941 F.3d 24, 36–37 (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." (citations omitted)); 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 must prove (1) the existence of an enterprise affecting interstate or foreign commerce.... "); 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); United States v. Savage, 85 F.4th 102, 136 (3d Cir. 2023); 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 846, 917–18 (D.C. Cir. 2016); United States v. Christensen, 801 F.3d 970 (9th Cir. 2015), opinion amended and superseded on denial of reh'g, 828 F.3d 763 (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."). Co-conspirator statements also qualify as exceptions to the hearsay rule and may be admitted in evidence against all participants in the scheme. United States v. Torres, 124 F.4th 84, 99 (2d Cir. 2024). |
| 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. Horn, 129 F.4th 1275, 1291 (11th Cir. 2025); United States v. Jimenez, 96 F.4th 317, 322 (2d Cir. 2024); United States v. Brumfield, 89 F.4th 506, 523 (5th Cir. 2023); United States v. Ravenell, 66 F.4th 472, 482 (4th Cir. 2023). |
| 56. |
Smith, 568 U.S. at 111; Williams, 974 F.3d at 368. |
| 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); Am. 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 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.... "); Menzies v. Seyfarth Shaw LLP 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 page 30. |
| 63. |
H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 (1989); RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 330 (2016); D & T Partners, LLC v. Baymark Partners Mgmt., LLC, 98 F.4th 198, 205 (5th Cir. 2024); UMB Bank, B.A. v. Guerin, 89 F.4th 1047, 1056 (8th Cir. 2024); United States v. Laurent, 33 F.4th 63, 75 (2d Cir. 2022); 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). |
| 64. |
H.J., Inc., 492 U.S. at 239 (1989) (emphasis of the Court) (citing S. Rep. No. 617, 91st Cong., at 158 (1969) and 116 Cong. Rec. 18940 (1970) (statement of Sen. McClellan)); D & T Partners, 98 F.4th at 205; UMB Bank, 89 F.4th at 1056; Johnson Heath, 56 F.4th 831, 859 (10th Cir. 2022); 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). |
| 65. |
H.J., Inc., 492 U.S. at 240 (quoting, 18 U.S.C. § 3575(e)); see also D & T Partners, 98 F.4th at 205; Johnson, 56 F.4th at 859; Laurent, 33 F.4th at 75; 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. 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 609, 615–16 (2d Cir. 2016)("[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 related to the activities of the enterprise.' Further, 'the same or similar proof [that] establish[es] vertical relatedness' may also establish horizontal relatedness, because 'the requirements of horizontal relatedness can be established by linking each predicate act to enterprise.'" (first quoting United States v. Minicone, 960 F.2d 1099, 1106 (2d Cir. 1992); then quoting United States v. Burden, 600 F.3d 204, 216 (2d Cir. 2010); then quoting United States v. Bruno, 383 F.3d 65, 84 (2d Cir. 2004); and then quoting United States v. Daidone, 471 F.3d 371, 375 (2d Cir. 2006) (per curiam)); and Henley, 766 F.3d at 907; with United States v. Fowler, 535 F.3d 408, 420 (6th Cir. 2008) ("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 D & T Partners, 98 F.4th at 205; UMB Bank, 89 F.4th 1056; Johnson, 56 F.4th at 859; Chin, 965 F.3d at 41, 48 (1st Cir. 2020); Grubbs, 807 F.3d at 804; 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 an 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))); D & T Partners, 98 F.4th at 206 ("[W]e have presumed that more than a year of racketeering acts constitute a 'substantial period of time.'"); UMB Bank, 89 F.4th at 1056 ("There was no closed-end continuity because this requires related acts continuing over a period of time lasting at least one year."); 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 adequately substantial period of time.'" (quoting Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1267 (11th Cir. 2004))); 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 crimes 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." (first quoting Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 184 (2d Cir. 2008), then quoting H.J., Inc., 492 U.S. at 242); Grubbs v. Sheakley Grp., Inc., 807 F.3d 785, 804–05 (6th Cir. 2015) (predicate offenses over an eight-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 lasting 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) (fifteen months, sufficient); Spool, 520 F.3d at 184 (sixteen months, insufficient); Jennings v. Auto Meter Prods., Inc., 495 F.3d 466, 474–75 (7th Cir. 2007) (ten months, insufficient); North Bridge Assocs., Inc. v. Boldt, 274 F.3d 38, 43 (1st Cir. 2001) (four months, insufficient). |
| 71. |
H.J., Inc., 492 U.S. at 242; D & T Partners, 98 F.4th at 208 (Open-ended continuity "exists when a threat of continuing criminal activity extends indefinitely into the future. To establish this element, plaintiffs must show that the predicate acts 'are a regular way of conducting defendant's ongoing legitimate business ... or of conducting or participating in an ongoing and legitimate RICO enterprise.'") (quoting H.J., Inc., 492 U.S. at 243); 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 243)). |
| 72. |
Spool,, 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, 18 (2d Cir. 2020) ("[C]onvicting a defendant of an 'unlawful debt' RICO violation in connection with a usurious loan to a borrower domiciled in New York requires proof of five elements: '[1] that a debt exist, [2] that it was unenforceable under New York 's usury laws; [3] that it was incurred in connection with the business of lending money at more than twice the legal rate, [4] that the defendant aided collection of the debt in some manner, and [5] that the defendant acted knowingly, willfully and unlawfully.'") (quoting United States v. Biasucci, 786 F.2d 504, 513 (2d Cir. 1986)); Home Orthopedics Corp. v. Rodriguez, 781 F.3d 521, 528 n.8 (1st Cir. 2015); Cmty. 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 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. 576, 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, 307–08 (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 Nat'l 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 Vill., L.L.C. v. Gen. Elec., 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 Cap. Asset Mmgt. 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. 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); Ouwinga v. Benistar 419 Plan Services, Inc., 694 F.3d 783, 794 (6th Cir. 2012); Crest Constr. II v. Doe, 660 F.3d 346, 354 (8th Cir. 2011). |
| 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, 579 U.S 325, 335 (2016) (quoting Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 255 (2010)). |
| 95. |
Id. at 339 ("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, 579 U.S. at 341, 345 ("[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 346 ("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 Yegiazaryan v. Smargin, 599 U.S. 533, 537 (2023); 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." (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). 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 to apply 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, 828 F.3d 763, 815 (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 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.... "); id. § 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).... "). "Specified unlawful activity" includes any offense from the RICO predicate offense list in § 1961(1), 18 U.S.C. § 1957(c)(7)(A). For a general overview of federal forfeiture law, see CRS Report 97-139, Crime and Forfeiture by Charles Doyle (2023). |
| 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 sub nom., RJR Nabisco v. Eur. Cmty., 579 U.S. 325, 355 (2016); Rao v. BP Prods. N. Am., 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 which stems 'not from the racketeering predicate acts themselves,' but from the use or investment of racketeering income." ); In re Nat'l Prescription Opiate Litig., 452 F. Supp. 3d 745, 772 (N.D. Ohio 2020); In re Honey Transshipping Litig., 87 F. Supp. 3d 855, 865–66 (N.D. Ill. 2015); Macauley v. Est. 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 Cypress 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 Cypress did not successfully plead a nexus between its claimed injuries and Cigna's acquisition or maintenance of an interest in the enterprise.... The district court was correct in dismissing this 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 Reassurance D'Ile 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 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 Enters., 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 causation."). |
| 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. Sec. Inv. Prot. 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 (2006). |
| 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 Grp.] '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 a plaintiff's damages attributable to the violation, as distinct from other, independent, factors,'; (2) 'concerns about administrability and the avoidance of multiple recoveries,'; and (3) 'the societal interest in deterring illegal conduct and whether that interest would be served in a particular case,'.... " (citations omitted) (first quoting In re Neurontin Mktg. & Sales Pracs. Litig., 712 F.3d 21, 35–36 (1st Cir. 2013), then quoting Hemi Grp.,, 559 U.S. at 9; then quoting Holmes, 503 U.S. at 271)); St. Luke's Health Network, Inc. v. Lancaster Gen. Hosp., 967 F.3d 295, 300–01 (3d Cir. 2020) ("The Supreme Court has also articulated three judicially practicable reasons for requiring directness of injury. First, '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 of action 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 Grp., 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' on 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 causation requirement. Relatedly, a more direct victim of the purported violation or independent, intervening factors may also break the chain of causation." (citations omitted) (first quoting Holmes, 503 U.S. at 271, then quoting Anza, 547 U.S. at 458)). |
| 115. |
RJR Nabisco. Inc. v. Eur. Cmty, 579 U.S. 325, 350 (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. |
Medical Marijuana, Inc. v. Horn, 145 S. Ct. 931, 946 (2025). |
| 117. |
18 U.S.C. § 1961(1)(D). |
| 118. |
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)). |
| 119. |
Humana Inc. v. Biogen, Inc., 126 F.4th 94, 103 (1st Cir. 2025); 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 Enters., 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.'"). |
| 120. |
United States v. Bonanno Organized Crime Fam., 879 F.2d 20, 21–27 (2d Cir. 1989); Peia v. United States, 152 F. Supp. 2d 226, 234 (D. Conn. 2001). |
| 121. |
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 Grp. 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 Cnty. v. Syngenta Seeds, Inc., 519 F.3d 969, 976 (9th Cir. 2008); Township of Marlboro v. Scannapieco, 545 F. Supp. 2d 452, 458 (D.N.J. 2008) (citing dicta subsequently repudiated in Smokes-Spirits.Com, Inc.). |
| 122. |
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. Resol. 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, 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. Centrl. Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002), abrogated by, Samantar v. Yousuf, 560 U.S. 305 (2010) (foreign governmental entity); Donahue v. F.B.I., 204 F. Supp. 2d 169 (D. Mass. 2002), rev'd sub nom., Donahue v. U.S. 634 F.3d 615 (1st Cir. 2011); Banks v. Dep't of Motor Vehicles, 419 F. Supp. 2d 1186, 1192 (C.D. Cal. 2006). |
| 123. |
Eliahu v. Jewish Agency for Israel, 919 F.3d 709, 713 (2d Cir. 2019) ("There is no private cause of action ... for aiding and abetting a civil RICO violation."); see also Pa. Assoc'n 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 [of Denv., N.A. v. First Interstate Bank of Denv., N.A., 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 Mktg. Sales Pracs. and Prod. Liability Litig., 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 Fin. Corp. Mortg. Mktg. and Sales Prac., 601 F. Supp. 2d 1201, 1219 (S.D. Cal. 2009); In re MasterCard Int'l Inc., Internet Gambling Litig., 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 Litig., 298 F. Supp. 2d 1259, 1272 (S.D. Fla. 2003); First Am. Corp. v. Al-Nahyan, 17 F. Supp. 2d 10, 23–24 (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); Am. Auto. 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."). |
| 124. |
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., Hengle v. Treppa, 19 F.4th 324, 353–54 (4th Cir. 2021); 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 Chem. 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., § 1964(a)], nor any necessary implication of the language of the [RICO] 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). |
| 125. |
E.g., Sasso, 215 F.3d 283 (2d Cir. 2000); United States v. Private Sanitation Indus. Ass'n, 995 F.2d 375 (2d Cir. 1993); United States v. Local 560, 974 F.2d 315 (3d Cir. 1992); United States v. Int'l Brotherhood of Teamsters (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, 266 F.3d 45 (2d Cir. 2001); United States v. IBT, 247 F.3d 370 (2d Cir. 2001); 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) remanded by, 968 F.2d 1506 (2d Cir. 1992); United States v. IBT, 950 F.2d 94, 95 (2d Cir. 1991), supplemented, 968 F.2d 1472 (2d Cir. 1991); United States v. IBT, 931 F.2d 177, 179 (2d Cir. 1991). The United States also called upon the authority under § 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). |
| 126. |
State Farm Mut. Auto. Ins.v. Tri-Bor. Med. Pract. P.C., 120 F.4th 59, 95 (2d Cir. 2024); Arunachalam v. IBM Corp., 989 F.3d 988, 998 (Fed. Cir. 2021); 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 Nat'l Org. 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 Litig., 298 F. Supp. 2d 1259, 1281–83 (S.D. Fla. 2003); contra Religious Tech. Ctr. 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."). |
| 127. |
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))); Peters Broad. Eng'g, Inc. v. 24 Capital, LLC, 40 F.4th 432, 439 (6th Cir. 2022) (adopting the majority view); Don't Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 1293 n.33 (11th Cir. 2021); ESAB Grp. v. IFX Mkts., Ltd., 126 F.3d 617, 626 (4th Cir. 1997); Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226, 1229–33 (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)). |
| 128. |
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. |
| 129. |
Shearson/ Am. Express Inc. v. McMahon, 482 U.S. 220, 242 (1987); cf. Pacificare Health Sys., Inc. v. Book, 538 U.S. 401, 406–07 (2003); e.g., Miccosukee Tribe of Indians of Florida v. Cypress, 814 F.3d 1202, 1206–07 (11th Cir. 2015); Uthe Tech. Corp. v. Aetrium, 808 F.3d 755, 756 (9th Cir. 2015). |
| 130. |
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 Grp., Inc., 854 F.3d 400, 403–07 (8th Cir. 2017); Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 513–19 (6th Cir. 2010); Am. Chiropractic Ass'n, Inc. v. Trigon Healthcare, Inc., 367 F.3d 212, 230–32 (4th Cir. 2004); Bancoklahoma Mortg. 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. Nat'l 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 federal 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.... [defendants] 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 supersede 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."). |
| 131. |
Agency Holding Corp. v. Malley-Duff & Assocs., 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 P.R., 919 F.3 617, 625 (1st Cir. 2019); CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 476 (4th Cir. 2015); Evans v. Ariz. 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). |
| 132. |
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. |
| 133. |
The text of 18 U.S.C. § 1959 is attached in Appendix A |
| 134. |
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. Lassiter, 96 F.4th 629, 636 (4th Cir. 2024); United States v. Woods, 14 F.4th 544, 555 (6th Cir. 2021); 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 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) )); United States v. Arrington, 941 F.3d 24, 37 (2d Cir. 2019). |
| 135. |
18 U.S.C. § 1959(a). |
| 136. |
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. |
| 137. |
Id. § 2; see, e.g., United States v. Quinn, 131 F.4th 846, 852 (8th Cir. 2025); United States v. Torres, 124 F.4th 84, 97 (2d Cir. 2024); 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). |
| 138. |
Id. §§ 1959(b)(1), 1961(1). |
| 139. |
United States v. McClaren, 13 F.4th 386, 403 (5th Cir. 2021) ("Courts treat [the definition of enterprise under VICAR] as identical to RICO."). RICO defines "enterprise" broadly in § 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 § 1959(b)(2) which is otherwise identical to § 1961(4)). See also United States v. Millán-Machuca, 991 F.3d 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))). |
| 140. |
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 United States v. Keene, 955 F.3d 391, 389–99 (4th Cir. 2020) ("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."). |
| 141. |
United States v. Quinn, 131 F.4th 846, 859 (8th Cir. 2025); United States v. Garcia, 74 F.4th 1073, 1122 (10th Cir. 2023); United States v. Maley, 52 F.4th 143, 151 (4th Cir. 2022); Savage, 970 F.3d at 274; Carrillo, 229 F.3d at 184–85; but see Garcia, 74 F.4th at 1125 ("Congress did not intend VICAR's 'violation of state laws' language to incorporate various states' procedural, evidentiary, and limitations rules ... "). |
| 142. |
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)). |
| 143. |
United States v. Torres, 124 F.4th 84, 97 (2d Cir. 2024); 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))). |
| 144. |
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)). |
| 145. |
Garcia, 74 F.4th at 1122 ("To have a VICAR purpose, status in the enterprise need not be the sole, or even the primary, motive for the violent act."); 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 purposes 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)). |
| 146. |
United 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). |
| 147. |
Miller v. Alabama, 567 U.S. 460, 479 (2012). |
| 148. |
See 18 U.S.C. § 1959(a)(1). |
| 149. |
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). |
| 150. |
593 U.S. 98 (2021). |
| 151. |
Id. at 100 (citing Miller, 567 U.S. at 460). The Court held in Jones that there is no requirement that the sentencing authority first determine that the accused is permanently incorrigible. Id. at 113. |
| 152. |
United States v. Holt, 126 F.4th 599, 606 (6th Cir. 2024); Stone v. United States, 37 F.4th 825, 827 (2d Cir. 2022); Bonilla-Romero, 984 F.3d at 416. |
| 153. |
Roper v. Simmons, 543 U.S. 551 (2005). |
| 154. |
Atkins v. Virginia, 536 U.S. 304 (2002). |
| 155. |
458 U.S. 782 (1982). |
| 156. |
970 F.3d 217, 235–36, 316 (3d Cir. 2020). |
| 157. |
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). |
| 158. |
U.S. Const. art. I, § 8, cls. 3, 18. |
| 159. |
U.S. Const. amend. X. |
| 160. |
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). |
| 161. |
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. Garcia, 74 F.4th at 1090; United States v. Umana, 750 F.3d 323, 336 (4th Cir. 2014); United States v. Mills, 378 F. Supp. 3d 563, 572 (E.D. Mich. 2019). |
| 162. |
U.S. Const. amend. V. |
| 163. |
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."). |
| 164. |
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). |
| 165. |
Garcia, 754 F.3d at 474; see also Ayala, 601 F.3d at 265; 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. Beale, 921 F.2d 1412, 1437 (11th Cir. 1991). |
| 166. |
United States v. Devine, 40 F.4th 139, 151–52 (4th Cir. 2022) ("Our sister circuits have been repeatedly faced with a dizzying variety of double jeopardy challenges to various combinations of RICO-related offenses. And time and time again these challenges have been rejected.") (collecting cases); United States v. Pratt, 728 F.3d 463, 478 n. 59 (5th Cir. 2013), abrogated on other grounds, Molina-Martinez v. United States, 578 U.S. 189 (2016); United States v. Kehoe, 310 F.3d 579, 587–88 (8th 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). |
| 167. |
Blockburger v. United States, 284 U.S. 299, 304 (1932); see also United States v. Ortiz-Orellana, 90 F.4th 689, 705 (4th Cir. 2024); 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). |
| 168. |
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). |
| 169. |
United States v. Wheeler, 535 F.3d 446, 450 (6th Cir. 2008) (quoting United States v. Russotti, 717 F.2d 27, 33 (2d Cir. 1983); and United States v. Dean, 647 F.2d 779 (8th Cir. 1981), on reh'g, 667 F.2d 729 (8th Cir. 1982)). |
| 170. |
587 U.S. 678, 682 (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). |
| 171. |
U.S. Const. art. I, § 9, cl. 3; art. I, § 10, cl. 1; Collins v. Youngblood, 497 U.S. 37, 52 (1990). |
| 172. |
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 United States v. Brown, 555 F.2d 407, 416–17 (5th Cir. 1977) (upholding, against constitutional challenge, the 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). |
| 173. |
Since the inception of RICO, amendments have largely involved the addition of new predicate offenses or procedural matters. 18 U.S.C. §§ 1961 n., 1962 n. 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). |
| 174. |
Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 525 (1994) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). |
| 175. |
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 removes the vagueness."). |
| 176. |
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 Nat. Res., 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. Adminstr. U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir. 1994), opinion modified on reh'g, 30 F.3d 1347 (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). |
| 177. |
Miller v. Alabama, 567 U.S. 460, 469–70 (2012). |
| 178. |
Id. at 480. |
| 179. |
Jones v. Mississippi, 593 U.S. 98, 103 (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."). |
| 180. |
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. |
| 181. |
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, id. 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, id. at 1009, 1027, 1028. |
| 182. |
United States v. Feldman, 853 F.2d 648, 664 (9th Cir. 1988) ("For eighth amendment purposes, however, we must consider the total punishment imposed. 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 all of another corporation and considerable real estate, for fraudulent conduct amounting to $335,000." (citations omitted)). |
| 183. |
Craig W. Palm, RICO Forfeiture and the Eighth Amendment: When Is Everything Too Much? 53 U. Pitt. L. Rev. 1 (1991). |
| 184. |
Alexander v. United States, 509 U.S. 544, 558–59 (1993). |
| 185. |
United States v. Bajakajian, 524 U.S. 321, 334–37 (1998). |
| 186. |
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 761, 795–96 (D.C. Cir. 2019). |
| 187. |
See generally United States v. Esformes, 60 F.4th 621, 640 (11th Cir. 2023) (upholding a forfeiture of $38.7 million in light of $77.4 million involved in a money laundering scheme); Bennett, 986 F.3d at 399–400 (finding that criminal forfeiture of $14 million was not grossly disproportionate following in light of the $38.7 million 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.... "); United States v. Powell, 697 F. Supp. 3d 1023, 1028 (D. Idaho 2023). |
| 188. |
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 Fine Clause." (quoting Levesque, 546 F.3d at 84–5)). |
| 189. |
United States v. Mongol Nation, 370 F. Supp. 3d 1090, 1119–120 (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."). |
| 190. |
U.S. Const. amend. I ( "Congress shall make no law ... abridging the freedom of speech, or of the press.... " ). |
| 191. |
Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931); Alexander v. United States, 509 U.S. 544, 550 (1993). |
| 192. |
Ginzburg v. United States, 383 U.S. 463, 464–65 (1966); Smith v. United States, 431 U.S. 291, 296 (1977). |
| 193. |
Alexander, 509 U.S. at 550–58. |
| 194. |
Mongol Nation, 370 F. Supp. 3d at 1130. |
| 195. |
Id. at 1111–16. |
| 196. |
United States v. Monsanto, 491 U.S. 600, 614–16 (1989); Caplin & Drysdale v. United States, 491 U.S. 617, 624–32 (1989). |
| 197. |
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 exemption 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.'" (citations omitted)); United States v. Wingerter, 369 F. Supp. 2d 799, 810–12 (E.D. Va. 2005). |
| 198. |
Luis v. United States, 578 U.S. 5, 23 (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.). |
| 199. |
United States v. Marshall, 872 F.3d 213, 221–22 (4th Cir. 2017). |
| 200. |
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. 79, 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')." (citations omitted)). |
| 201. |
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). |
| 202. |
Booker, 543 U.S. at 244. |
| 203. |
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). |
| 204. |
Esformes, 60 F.4th at 639–40; 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). |
| 205. |
United States v. Grande, 620 F.2d 1026, 1037–38 (4th Cir. 1980). |
| 206. |
U.S. Const. art. III, § 3, cl. 2. |
| 207. |
United States v. Thevis, 474 F. Supp. 134, 140–41 (N.D. Ga. 1979), aff'd, 665 F.2d 616 (5th Cir. 1982), 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). |
| 208. |
For 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); 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., 725 Ill. Comp. Laws Ann. §§ 175/1–175/9 (2025) (narcotics racketeering); Md. Code Ann. Crim. Law § 5-613 (2025) (drug kingpin). |