RICO Elements of the Offense

Every federal charge reduces to a list of things the government must prove, and a racketeering charge is no exception. The instructions given to a jury in federal criminal trials set those requirements out in the order the jury will consider them, and reading a charging document against that list is the most useful thing a defendant can do early.

What follows describes the elements of a charge under 18 U.S.C. § 1962 in general terms. The instructions actually given depend on the subsection charged and on the court. If you have been charged under 18 U.S.C. § 1962, call Law Offices Of SRIS, P.C. at (888) 437-7747 to request a consultation.

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The Elements in Outline

For the substantive provision most often charged, the government must prove that an enterprise existed, that the enterprise affected interstate or foreign commerce, that the defendant was associated with or employed by the enterprise, that the defendant conducted or participated in the conduct of the affairs of the enterprise, and that he did so through a pattern of racketeering activity. Each is separate. Proof of several is not proof of all.

The Enterprise

An enterprise may be a legal entity such as a corporation, a partnership, or a union, or it may be an association in fact: a group of people associated together for a common purpose. An association in fact needs a purpose, relationships among the people associated with it, and enough longevity to allow its members to pursue that purpose.

The enterprise must also be distinct from the person charged. Where the government alleges that a defendant and his own business together formed the enterprise, or that the enterprise is simply the group of people who committed the offenses, the distinctness requirement deserves examination rather than assumption.

The Pattern of Racketeering Activity

Racketeering activity is defined by a list of offenses drawn from state and federal law. A pattern requires the number of qualifying acts the statute specifies, occurring within the period the statute specifies. Those figures come from the current text of 18 U.S.C. § 1962 and the definitions that accompany it, and counsel should confirm them against that text rather than against any summary.

Counting alone is not enough. The acts must be related to one another, sharing purposes, participants, victims, or methods, and they must show continuity, meaning that they extended over a substantial period or that they threatened to continue. A closed set of related acts with a natural endpoint may satisfy relatedness and still fail continuity.

Participation and the Commerce Element

The defendant must have conducted or participated in the conduct of the affairs of the enterprise, which means taking some part in directing them. Doing business with an organization, working for it, or providing it with services is not by itself participation in the conduct of its affairs.

The enterprise must affect interstate or foreign commerce. The connection required is a jurisdictional one, and it is ordinarily proved through the movement of goods, funds, or communications across state lines.

The Elements of a Racketeering Conspiracy

A conspiracy count under the same section has a different structure. The government must prove that an agreement existed to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity, and that the defendant knowingly and willfully joined that agreement, understanding its essential nature and general scope. He need not have committed a predicate act himself, and no overt act is required.

Because the conspiracy element turns on agreement rather than conduct, the instructions distinguishing agreement from presence, association, and knowledge carry particular weight in these trials.

Frequently Asked Questions

Does the jury have to agree on which acts I committed?

The instructions ordinarily require the jury to agree on the particular racketeering acts it finds proved, rather than simply agreeing that some acts occurred. Because that requirement is stated in the instructions rather than in the statute, the wording given to the jury is worth litigating. Requests for particulars earlier in the case make that instruction easier to frame.

Is an association in fact really an enterprise?

It can be, but only where the proof shows a purpose shared by the members, relationships among them, and enough duration to pursue that purpose. Evidence that a group of people committed offenses together, without more, does not establish those features. This element is decided on the facts and is often the most contestable one in the case.

What counts as racketeering activity?

The statute defines it by reference to a list of offenses, some drawn from state law and some federal. Whether a particular allegation falls within that list is a legal question, and an allegation that does not match a listed offense cannot serve as a predicate act no matter how serious it sounds.

Do the predicate acts have to be charged as separate counts?

No. A racketeering count can rest on acts that are not separately charged, including acts alleged to have been committed by other members of the enterprise. The defense therefore has to litigate those acts inside the racketeering count, through evidentiary objections and through the instructions.

What is the difference between the substantive count and the conspiracy count?

The substantive count requires that the defendant participated in the conduct of the affairs of the enterprise through a pattern of racketeering activity. The conspiracy count requires only that he agreed that the affairs of the enterprise would be conducted through such a pattern. The second reaches conduct the first does not, which is why both are commonly charged together.

Does the government have to prove I knew the whole plan?

Not in detail. It must prove that the defendant understood the essential nature and general scope of the agreement he is said to have joined. Knowledge of every member, every act, and every objective is not required, but general awareness that criminal activity was occurring nearby is not agreement either, and the space between those two propositions is where the case is argued.

Working With Law Offices Of SRIS, P.C.

Reading a charging document against the elements is the first task in a racketeering case, because it identifies which subsection is actually charged and what the government has undertaken to prove about this client.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

This page provides general information about the elements of federal racketeering charges under 18 U.S.C. § 1962 and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

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