RICO stands for the Racketeer Influenced and Corrupt Organizations Act and is governed by 18 U.S.C. § 1962
1An “Enterprise,” as outlined in the indictment (or charging instrument), existed during the times charged;
2The Enterprise was engaged in , or its activities affected, interstate or foreign commerce;
3The defendant was employed by, or was associated with the Enterprise;
4The defendant knowingly conducted or participated, directly or indirectly, in the conduct of the affairs of the Enterprise; and
5The defendant knowingly agreed to participate in the conduct of the affairs of the Enterprise through a pattern of racketeering activity; that is, through the commission of at least two racketeering acts within ten years of each other, or through causing or aiding and abetting the commission of two racketeering acts.
An “Enterprise” is defined as a group of persons associated together for a common purpose of engaging in a course of conduct and it is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.
In order for a person to be charged with, or convicted of, RICO, the government must establish at least two predicate acts within ten years of each other. This is so that RICO does not apply to perpetrators of ‘isolated’ or ‘sporadic’ criminal acts. The two predicate acts are sufficient to prove a pattern of racketeering, provided these predicate acts are “related,” and that they amount to or pose a threat of continued criminal activity.
“Related” embodies 2 different concepts – Horizontal Relatedness and Vertical Relatedness. Horizontal Relatedness means that predicate acts are related to one another. Vertical Relatedness means that predicate acts are related to the Enterprise.
Whether an act is related and continuous can be established by the nature of the RICO Enterprise. Where the Enterprise is an entity whose purpose is racketeering activity (such as drug distribution), any act performed in furtherance of this purpose automatically carries with it the threat of continued racketeering activity.
Given the broad way Enterprise is defined under RICO, a local street gang can meet this definition. Oftentimes, the government will allege that a group of individuals from a certain location are a “gang.” While this “gang” has no organizational infrastructure (i.e. president, vice president, captains, etc.) and no known rules or regulations, the court can look at what the “gang” does rather than simply looking at its lack of an infrastructure. So long as there is coordination between “gang” superiors and underlings towards some common goal, i.e. protecting a geographical area from incursion from rival drug dealers, the “gang” can meet the definition of an Enterprise.
A predicate act under RICO is not a separate charge or count. Unlike a count, a predicate act alleged cannot be tried in a separate proceeding. This is because of the pattern of activity the government must prove. Moreover, the manner in which a racketeering act differs from a count suggests that it might never be appropriate for a court to sever a racketeering act from the rest of the allegations against a defendant in an indictment, the broadly permissive language of R14 notwithstanding.
A substantive racketeering charge doesn’t put the defendant in jeopardy for any predicate acts, rather it puts a defendant in jeopardy for conducting an enterprise through a pattern of racketeering demonstrated by related predicate acts. It is the pattern of activity, not the predicate acts, that is punished by RICO. Thus, a person may be prosecuted – either simultaneously or at separate times – for both substantive racketeering and the underlying predicate acts used to establish the RICO charge.
When facing a substantive RICO charge, a person cannot be held accountable for the racketeering acts of others. However, such other acts can establish the nature of the Enterprise, which can prove the Relatedness and Continuity essential to the RICO pattern. This will assist in establishing that the person’s own acts constitute a pattern under RICO.