Conspiracy / RICO Raketeering

Racketeering and Racketeering Conspiracy as enumerated in 18 U.S.C. SS1961-1968 means that you have been charged with conducting or participating in the affairs of a criminal enterprise through a pattern of racketeering activity, in violation of the statute which reads as follows:

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). is conspiring with others to violate the laws as enumerated in the charges against you. Before discussing the various racketeering predicate acts, it is important to discuss the elements of Racketeering and a Racketeering Conspiracy and its distinctions.

Elements of Racketeering

Enterprise

The first element of the crime of racketeering is that an enterprise existed as alleged in the Indictment, the Government must prove that the alleged enterprise was actually established.

The term "enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact; although not a legal entity. Thus, an enterprise need not be a formal business entity such as a corporation, but may be merely an informal association of individuals.

The enterprise does not need to have a particular name, or, for that matter, any name at all. Nor must it be registered or licensed as an enterprise, or be a commonly recognized legal entity such as a corporation, a partnership, a business, or the like. A group or association of people can be an enterprise if the individuals have "associated together for a common purpose of engaging in a course of conduct." Mere similarity of conduct or the fact that individuals may have assembled together and discussed common aims and interests does not necessarily establish proof of the existence of an enterprise, but can be considered as factors by the jury.

The enterprise can be established by evidence showing an ongoing organization, formal or informal, and by evidence the people making up the enterprise functioned as a continuing unit.

The government must prove that (1) there was an ongoing organization with some sort of framework for making or carrying out decisions and that (2) the various members and associates of the organization functioned as a continuing unit (3) to achieve a common purpose. The group may be organized for a legitimate and lawful purpose, or it may be organized for an unlawful purpose.

Regarding "organization," it is not necessary that the enterprise have any particular or formal structure, but it must have sufficient organization that its members functioned and operated in a coordinated manner in order to carry out the alleged common purpose or purposes of the enterprise. The existence of the enterprise is an element separate and apart from the pattern of racketeering crimes with which the defendant is charged. However, evidence of those racketeering crimes may also be sufficient to establish the existence of the racketeering enterprise. Indeed, the existence of an association-in-fact is often times more readily proven by what it does, rather than by abstract analysis of its structure.

"Continuing membership" exists even where the membership changes by adding or losing individuals during the course of its existence. Therefore, such an association of individuals may retain its status as an "enterprise" even though the membership of the association changes by adding or losing individuals during the course of its existence.

The Government is not required to prove each and every allegation about the enterprise or the manner in which the enterprise operated.

The Government needs only to prove that this was a group of people characterized by (1) an ongoing organization with some sort of framework for making or carrying out decisions and (2) various members and associates of the organization functioning as a continuing unit (3) to achieve a common purpose.

Interstate Commerce

The second element of the crime of racketeering is that the conduct of the enterprise affected interstate commerce. The Government is required to prove that the enterprise was actually engaged in or its activities actually affected interstate or foreign commerce.

Interstate commerce means trading or conducting business or travel between one state and another state, and foreign commerce means such trade, business or travel between the United States and another country. Interstate and foreign commerce may include the movement of money, goods, services or persons from one state to another state or the District of Columbia or between the United States and another country. This may include, among other matters, the purchase or sale of goods or supplies from outside the United States or the state in which the enterprise is located, the use of interstate or international mail or wire facilities, or the causing of any of those things. The effect on interstate or foreign commerce need not be substantial or significant. A minimal effect on interstate or foreign commerce is sufficient.

An enterprise is generally "engaged in commerce" when it is directly engaged in the production, distribution or acquisition of goods or services in interstate commerce. If the jury finds the evidence sufficient to prove the enterprise itself engaged in interstate commerce or foreign commerce, this requirement is established. On the other hand, this effect on interstate or foreign commerce may be established through the effect caused by the crimes charged in the Indictment. The effect need not be direct. Any effect, even if it is postponed, indirect or slight, is sufficient to satisfy the interstate commerce element. It does not matter whether the effect is harmful or beneficial to interstate commerce. Moreover, it is not necessary to find that a defendant knew that the enterprise would affect interstate or foreign commerce; that the defendant intended to affect interstate or foreign commerce; that the defendant engaged in, or his activities affected, interstate or foreign commerce. The government need only prove that the activities of the enterprise considered in their entirety had some minimal effect on interstate or foreign commerce, or that the enterprise was "engaged in" interstate or foreign commerce.

Association with or Employment by the Enterprise

A defendant need not have been employed by or associated with the enterprise for the entire period of its existence, but a defendant must, beyond a reasonable doubt, have been associated with or conspired to have been associated with the enterprise at the time of the Racketeering Acts for which he is charged. That is, the government must prove that the defendant was connected to the enterprise in some meaningful way and that he knew of the existence of the enterprise and of the general nature of its activities.

"Associated with" should be given its plain meaning. To "associate" means to join, often in a loose relationship as a partner, fellow worker, colleague, friend, companion or ally. A person is "associated with" an enterprise when, for example, he joins with other members of the enterprise and he knowingly aids or furthers the activities of the enterprise, or he conducts business with or through the enterprise.

A defendant's association with the enterprise must be "knowing." An act is done knowingly if it is done voluntarily and intentionally, and not because of mistake or accident or other innocent reason. In determining whether a defendant acted knowingly, a jury can consider whether the defendant deliberately closed his eyes to what would otherwise have been obvious to him. The fact of knowledge can be established by circumstantial evidence, just as any other fact in this case. It is not required that a defendant have a formal position in the enterprise, or participated in all the activities of the enterprise, or had full knowledge of all the activities of the enterprise, or knew about the participation of all the other members of the enterprise. It is sufficient that the Government prove beyond a reasonable doubt that at some time during the existence of the enterprise as alleged in the Indictment, the defendant was associated with or conspired to be associated with the enterprise, that he knew of the general nature of the enterprise and that the enterprise extended beyond his own role in the enterprise.

Engaging in a Pattern of Racketeering Activity

The fourth element the Government must prove beyond a reasonable doubt is that the defendant knowingly participated in the affairs of the enterprise through a pattern of racketeering. The Government is required to prove that a defendant personally committed two Racketeering Acts, or that he agreed to personally commit two Racketeering Acts.

These Racketeering Acts must also be "related," that is, they must have the same or similar purposes, results, participants, victim, or methods of commission, or be otherwise interrelated by distinguishing characteristics and not be merely isolated events. To establish that two Racketeering Acts are related to the enterprise, the government must establish (1) that a defendant's position in the enterprise facilitated his commission of those illegal acts and that the Racketeering Acts had some impact or effect on the enterprise, or (2) that the acts were in some way related to the affairs of the enterprise, or (3) that a defendant was able to commit the acts by virtue of his position or involvement in the affairs of the enterprise.

The Racketeering Acts the defendant committed must also either have extended over a substantial period of time or have posed a threat of continued criminal activity. A threat of continued unlawful activity may be established when evidence shows the Racketeering Acts are part of a long-term association that exists for criminal purposes or when the Racketeering Acts are shown to be the regular way of conducting the affairs of the enterprise. A pattern may be established by proof that a defendant operated as part of a long-term association that exists for a criminal purpose.

Conducting or Participating in the Affairs of the Enterprise

The Government must prove that you conducted or participated in the affairs of the enterprise. To conduct or participate in the affairs of the enterprise means a defendant intentionally performed acts, functions or duties that are helpful in, or necessary to, the operation of the enterprise. Thus, if a defendant participated in the operation or management of the enterprise itself or if he directed the enterprise's affairs, that would satisfy this element. The Government is not required to prove that a defendant was a member of the upper management of the enterprise. A defendant need not have exercised significant control over or within the enterprise, nor must he have had a formal position in the enterprise, or primary responsibility for the enterprise's affairs. Rather, an enterprise is "operated" not just by upper management but also by lower-rung participants in the enterprise who are under the direction of upper management or carry out upper management's orders. In other words, all who participate in the conduct of the enterprise, whether they are generals or foot soldiers, are responsible for the affairs of the enterprise. The Government is not required to prove that the defendant shared in the profits of the enterprise.

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