Criminal Jury Instructions For RICO PDF

§ 13:31.Criminal jury instructions, 2 White Collar Crime § 13:31 (2d ed.
2 White Collar Crime § 13:31 (2d ed.)
White Collar Crime | July 2016 Update

Chapter 13. Substantive Crimes: RICO
II. Sample Materials
§ 13:31. Criminal jury instructions
References
RACKETEER INFLUENCED
AND CORRUPT ORGANIZATIONS
(RICO)
CRIMINAL JURY INSTRUCTIONS
SUBSTANTIVE AND CONSPIRACY CHARGES
INDEX
1. RICO Instruction No. 1 RICO — Substantive

2. RICO Instruction No. 2 Person
3. RICO Instruction No. 3 Pattern of Racketeering Activity
4. RICO Instruction No. 4 Enterprise
5. RICO Instruction No. 5 Mens Rea
6. RICO Instruction No. 6 Associated With
7. RICO Instruction No. 7 Conduct or Participation in the Enterprise's Affairs
8. RICO Instruction No. 8 Interstate Commerce
9. RICO Instruction No. 9 Racketeering Acts — General
10. RICO Instruction No. 10 Racketeering Acts Nos. ___
11. RICO Instruction No. 11 Racketeering Act No. ___
14. RICO Instruction No. 14 Other Racketeering Acts
15. RICO Instruction No. 15 Unanimous Verdict
16. RICO Instruction No. 16 Statute of Limitations
17. RICO Instruction No. 17 Nexus Between Enterprise, Defendant, and Racketeering
Activity
18. RICO Instruction No. 18 Withdrawal
19. RICO Instruction No. 19 Multiple Enterprises
20. RICO Instruction No. 20 Proof of Seven Facts
21. RICO Instruction No. 21 Liability of Corporations
22. RICO Instruction No. 22 RICO — Conspiracy
23. RICO Instruction No. 23 Definition of Conspiracy
24. RICO Instruction No. 24 Cautionary Instruction Conspiracy—Hearsay
25. RICO Instruction No. 25 Membership
26. RICO Instruction No. 26 Mere Presence
27. RICO Instruction No. 27 RICO Conspiracy — Objective
28. RICO Instruction No. 28 Personally Agree
29. RICO Instruction No. 29 Overt Act
30. RICO Instruction No. 30 Unanimous Agreement
31. RICO Instruction No. 31 Withdrawal from Conspiracy
32. RICO Instruction No. 32 Statute of Limitations
33. RICO Instruction No. 33 Multiple Conspiracies
34. RICO Instruction No. 34 Proof of Acts
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 13:31.Criminal jury instructions, 2 White Collar Crime § 13:31 (2d ed.)
35. RICO Instruction No. 35 Forfeiture
RICO INSTRUCTION NO. 1

(“RICO—Substantive”)
Count 2
The indictment charges that from on or about [Month, Year], and continuously thereafter up to on or about [Month,
Year], the Defendants committed the crime of “racketeering” in violation of a federal statute known as “RICO”.
Specifically, the indictment alleges that, from [Month, Year] to [Month, Year], the Defendants were “persons”
“associated with” an “enterprise” engaged in, or the activities of which affected, “interstate commerce”, and that they
knowingly and willfully “participated in the conduct of the enterprise's affairs” “through a pattern of racketeering
activity,” in violation of 18 U.S.C.A. § 1961 and 18 U.S.C.A. § 1962(c).

(“Person”)
The term “person” includes any individual or entity capable of holding a legal or beneficial interest in property. 18
U.S.C.A. § 1961(3)

(“Pattern of Racketeering Activity”)
To prove a charge of “racketeering” under RICO, the government must prove as an essential element and beyond a
reasonable doubt that the defendants engaged in a “pattern of racketeering activity.” Congress gave a special definition
to the phrase “pattern of racketeering activity,” and it is the only one that you may use in deciding this case.
First, Congress defined “racketeering activity” to include any act in violation of Title 18 of the United States Code
(federal law) relating to mail fraud (18 U.S.C.A. § 1341), the sale and receipt of stolen goods (18 U.S.C.A. § 2315),
interstate travel in aid of racketeering (18 U.S.C.A. § 1952) and any act in violation of state law relating to bribery
(Section ___, ___ Penal Code).
Congress then defined a “pattern of racketeering activity” as “at least” two separate acts of “racketeering activity.” These
two separate acts must have taken place within 10 years of each other, and one must have occurred after October 15, 1970.
When I say that “at least” two racketeering acts are necessary to constitute a “pattern,” I mean that two racketeering
acts do not necessarily add up to a pattern. It is not enough for you simply to find that two crimes included in the
list of “racketeering activity” were committed. To find a “pattern,” you must find additionally that those crimes were
connected with each other by some common scheme, plan or motive, and that they were not simply a series of isolated
or disconnected acts.
In addition to being related, the acts must also amount to or pose a threat of continued criminal activity. “Continuity”
is both a closed- and open- ended concept, referring either to a closed period of related conduct, or to past conduct that

by its nature projects into the future with a threat of repetition. It is, in either case, centrally a temporal concept. A party
alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates
extending over a substantial period of time. Predicate acts extending over few weeks or months and threatening no future
criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct.
Conduct forms a pattern if it embraces criminal acts that 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.
The enterprise is not the pattern of racketeering activity; it is an entity separate and apart from the pattern of activity
in which the enterprise allegedly engages. Therefore, in every case the government must prove not only that there was a
pattern of racketeering activity, but also that it was conducted through an enterprise as thus defined.
There must be proof beyond a reasonable doubt that the facilities and services of the enterprise were regularly and
repeatedly utilized to make possible the racketeering activity, along with proof that the racketeering activity benefited
and advanced the enterprise, to establish the conduct of the affairs of the enterprise through a pattern of racketeering
activity.
Moreover, if you do not find that two “racketeering” crimes were committed, then you cannot find that a “pattern of
racketeering activity” existed. Finally, it is the government's burden to prove every essential element of each separate
alleged act of “racketeering activity” beyond a reasonable doubt. U.S. v. Phillips, 664 F.2d 971, 1039, 9 Fed. R. Evid.
Serv. 970 (5th Cir. 1981); Vietnamese Fishermen's Ass'n v. Knights of Ku Klux Klan, 518 F. Supp. 993, 1014 (S.D. Tex.
1981); U.S. v. Stofsky, 409 F. Supp. 609, 614 (S.D. N.Y. 1973); U.S. v. Cauble, 706 F.2d 1322, 1331 (5th Cir. 1983);
U.S. v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 2528–29, 69 L. Ed. 2d 246, R.I.C.O. Bus. Disp. Guide (CCH) P
6100 (1981); U.S. v. Carter, 721 F.2d 1514, 1527, 84-2 U.S. Tax Cas. (CCH) P 9537, 14 Fed. R. Evid. Serv. 1613, 53
A.F.T.R.2d 84-1413 (11th Cir. 1984), vacated in part, 886 F.2d 304 (11th Cir. 1989); U.S. v. Webster, 669 F.2d 185, 187
(4th Cir. 1982); U.S. v. Thevis, 665 F.2d 616, 625, 9 Fed. R. Evid. Serv. 1025 (5th Cir. 1982); U.S. v. Nerone, 563 F.2d
836, 851–852 (7th Cir. 1977); U.S. v. Erwin, 793 F.2d 656, 671 (5th Cir. 1986); Sedima, S.P.R.L. v. Imrex Co., Inc., 473
U.S. 479, 496, 105 S. Ct. 3292, 87 L. Ed. 2d 346, Fed. Sec. L. Rep. (CCH) P 92086 (1985); U.S. v. Brooklier, 685 F.2d
1208, 1222, 11 Fed. R. Evid. Serv. 703 (9th Cir. 1982); U.S. v. Starnes, 644 F.2d 673, 677–78 (7th Cir. 1981).
Activity Must Advance the Enterprise: U.S. v. Martino, 648 F.2d 367, 394 (5th Cir. 1981); U.S. v. Manzella, 782 F.2d
533, 538, 20 Fed. R. Evid. Serv. 196 (5th Cir. 1986).
Activity Must Affect the Enterprise: U.S. v. Hartley, 678 F.2d 961, 999, 11 Fed. R. Evid. Serv. 128 (11th Cir. 1982)
(abrogated by, U.S. v. Goldin Industries, Inc., 219 F.3d 1268, R.I.C.O. Bus. Disp. Guide (CCH) P 9914 (11th Cir. 2000));
U.S. v. Scotto, 641 F.2d 47, 54, 107 L.R.R.M. (BNA) 2288, 89 Lab. Cas. (CCH) P 12285 (2d Cir. 1980) (rejected by,
State v. Haddix, 93 Ohio App. 3d 470, 638 N.E.2d 1096, R.I.C.O. Bus. Disp. Guide (CCH) P 8685 (12th Dist. Preble
County 1994))).
Interrelatedness of Predicate Acts Not Required: U.S. v. Gottesman, 724 F.2d 1517, 1522, 222 U.S.P.Q. 206, 15 Fed.
R. Evid. Serv. 98 (11th Cir. 1984) (abrogated by, Dowling v. U.S., 473 U.S. 207, 105 S. Ct. 3127, 87 L. Ed. 2d 152,
226 U.S.P.Q. 529 (1985)); U.S. v. Bright, 630 F.2d 804, 830, 6 Fed. R. Evid. Serv. 550 (5th Cir. 1980); U.S. v. Elliott,
571 F.2d 880, 899 (5th Cir. 1978); U.S. v. Weisman, 624 F.2d 1118, 1122–23, 5 Fed. R. Evid. Serv. 1338 (2d Cir. 1980)
(“enterprise” itself supplies unifying links among predicate acts); U.S. v. Qaoud, 777 F.2d 1105, 1116 (6th Cir. 1985).

What Constitutes Pattern (Relationship of Acts Mandated): U.S. v. Erwin, 793 F.2d 656, 671 (5th Cir. 1986) (quoting,
although not indicating approval of, the defendant's jury instruction that the government must prove that such offenses
were connected with each other by some common plan or motive so as to constitute a “pattern” and not merely a series
of isolated or disconnected acts). Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496, 105 S. Ct. 3292, 87 L. Ed. 2d
346, Fed. Sec. L. Rep. (CCH) P 92086 (1985) (“continuity plus relationship,” rather than “isolated acts” or “sporadic
activity”). U.S. v. Brooklier, 685 F.2d 1208, 1222, 11 Fed. R. Evid. Serv. 703 (9th Cir. 1982). U.S. v. Starnes, 644 F.2d
673, 677–78 (7th Cir. 1981). Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1273–74, R.I.C.O. Bus. Disp. Guide (CCH)
P 7320 (10th Cir. 1989) (Publication of two isolated articles on the same day insufficient to constitute a pattern). Edwards
v. First Nat. Bank, Bartlesville, Oklahoma, 872 F.2d 347, 352, R.I.C.O. Bus. Disp. Guide (CCH) P 7176 (10th Cir.
1989) (Bank officer's threats to borrowers presented no threat of continued illegal activity and hence did not constitute
a pattern. Unrelated threats to another borrower insufficient to prove a pattern.). U.S. v. Kaplan, 886 F.2d 536, 541–42
(2d Cir. 1989) (Two acts of bribery during one conversation may be considered in determining whether a pattern exists).
Recent U.S. Supreme Court Decision—Pattern—Schemes—Relationship of Predicate Acts: H.J. Inc. v. Northwestern
Bell Telephone Co., 492 U.S. 229, 109 S. Ct. 2893, 2899, 106 L. Ed. 2d 195, R.I.C.O. Bus. Disp. Guide (CCH) P 7237,
103 Pub. Util. Rep. 4th (PUR) 513 (1989) (Multiple predicate acts which occur within the context of a single scheme
may form a pattern if they amount to, or threaten the likelihood of, continued criminal activity). Cases which have been
reconsidered in light of H. J. Inc. include: Walk v. Baltimore and Ohio R.R., 890 F.2d 688, R.I.C.O. Bus. Disp. Guide
(CCH) P 7371 (4th Cir. 1989); Yellow Bus Lines, Inc. v. Drivers, Chauffeurs & Helpers Local Union 639, 883 F.2d 132,
132 L.R.R.M. (BNA) 2164, 113 Lab. Cas. (CCH) P 11530, 113 Lab. Cas. (CCH) P 11669, R.I.C.O. Bus. Disp. Guide
(CCH) P 7286, R.I.C.O. Bus. Disp. Guide (CCH) P 7364 (D.C. Cir. 1989), on reh'g in part, 913 F.2d 948, 135 L.R.R.M.
(BNA) 2177, 116 Lab. Cas. (CCH) P 10275, R.I.C.O. Bus. Disp. Guide (CCH) P 7554 (D.C. Cir. 1990) (D.C. Circuit
agrees to rehear en banc).
Single Scheme Sufficient:
First Circuit: Fleet Credit Corp. v. Sion, 893 F.2d 441, 445, R.I.C.O. Bus. Disp. Guide (CCH) P 7405 (1st Cir. 1990)
(Numerous mailings made over a four and one-half year period as part of the same scheme to obtain loans sufficient
to demonstrate “continued criminal activity[.]”); Second Circuit: Jacobson v. Cooper, 882 F.2d 717, 720, R.I.C.O. Bus.
Disp. Guide (CCH) P 7299 (2d Cir. 1989) (Single scheme to defraud, involving separate acts of fraud, dealing with several
properties over a period of years, is sufficient.); Polycast Technology Corp. v. Uniroyal, Inc., 728 F. Supp. 926, 947–
48, Fed. Sec. L. Rep. (CCH) P 94833 (S.D. N.Y. 1989) (Twenty-three acts of mail and wire fraud and violations of the
securities laws which occurred over an eight-month period were sufficient, even though all were committed in furtherance
of a single sale of a business.); Fourth Circuit: Morley v. Cohen, 888 F.2d 1006, 1010, R.I.C.O. Bus. Disp. Guide (CCH)
P 7349, 29 Fed. R. Evid. Serv. 205, 15 Fed. R. Serv. 3d 303 (4th Cir. 1989) (Single scheme involving two victims and
two perpetrators which occurred over five years is sufficient.); Combs v. Bakker, 886 F.2d 673, 677–78, R.I.C.O. Bus.
Disp. Guide (CCH) P 7317 (4th Cir. 1989) (Multiple acts of fraud relating to the sale of “Lifetime Partnerships” which
claimed 55,000 victims in independent transactions found sufficiently continuous to constitute a “threat of continued
criminal activity[.]”); Sixth Circuit: Newmyer v. Philatelic Leasing, Ltd., 888 F.2d 385, 396–97, Fed. Sec. L. Rep. (CCH)
P 94767, R.I.C.O. Bus. Disp. Guide (CCH) P 7357 (6th Cir. 1989) (Single scheme which lasted over a period of five years
and which affected at least five victims sufficient.); Fleischhauer v. Feltner, 879 F.2d 1290, 1297–98, R.I.C.O. Bus. Disp.
Guide (CCH) P 7254 (6th Cir. 1989) (Following the analysis outlined by the third and seventh circuits, the court finds a
single scheme committed over a period of time against some nineteen victims sufficient.); Obee v. Teleshare, Inc., 725 F.
Supp. 913, 916, Fed. Sec. L. Rep. (CCH) P 94914 (E.D. Mich. 1989) (Single scheme affecting single victim but involving
numerous solicitations over two years, was sufficient.); Blue Cross and Blue Shield of Michigan v. Kamin, 876 F.2d 543,

545, R.I.C.O. Bus. Disp. Guide (CCH) P 7222 (6th Cir. 1989) (Multiple billings to single insurer based on unnecessary
medical tests sufficient.).
Multiple Acts Not a Pattern When They Relate to a Single Scheme (See, H.J. Inc. v. Northwest Bell Tel. Co. which may
question the analysis of these cases.):
First Circuit: Framingham Union Hosp., Inc. v. Travelers Ins. Co., 721 F. Supp. 1478, 1484, 11 Employee Benefits Cas.
(BNA) 1825, R.I.C.O. Bus. Disp. Guide (CCH) P 7433 (D. Mass. 1989) (Single scheme to defraud two victims over seven
years was insufficient.); McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 721 F. Supp. 15, 16, R.I.C.O. Bus. Disp.
Guide (CCH) P 7400 (D. Mass. 1989), judgment aff'd, 904 F.2d 786, R.I.C.O. Bus. Disp. Guide (CCH) P 7478 (1st Cir.
1990) (Single scheme involving one transaction is insufficient.); Trundy v. Strumsky, 729 F. Supp. 178, 184, R.I.C.O.
Bus. Disp. Guide (CCH) P 7447 (D. Mass. 1990), vacated and remanded, 915 F.2d 1557 (1st Cir. 1990) (Nine-month
“Scheme” to take control of business is insufficient.); Second Circuit: Airlines Reporting Corp. v. Aero Voyagers, Inc.,
721 F. Supp. 579, 584–85, R.I.C.O. Bus. Disp. Guide (CCH) P 7329 (S.D. N.Y. 1989) (Single scheme to breach a contract
involving a single victim and three perpetrators over a thirteen month period is insufficient.); Dooner v. NMI Ltd., 725 F.
Supp. 153, 161–62, Fed. Sec. L. Rep. (CCH) P 94769, R.I.C.O. Bus. Disp. Guide (CCH) P 7370 (S.D. N.Y. 1989) (Single
scheme spanning an eighteen month period is insufficient.); Azurite Corp. Ltd. v. Amster & Co., 730 F. Supp. 571, 581,
Fed. Sec. L. Rep. (CCH) P 94944, R.I.C.O. Bus. Disp. Guide (CCH) P 7425 (S.D. N.Y. 1990) (Seventh-month scheme to
gain control of corporation, with no threat of continuity is insufficient.); Continental Realty Corp. v. J.C. Penney Co.,
Inc., 729 F. Supp. 1452, 1455–56, R.I.C.O. Bus. Disp. Guide (CCH) P 7417 (S.D. N.Y. 1990) (Several acts of mail and
wire fraud occurring over the course of a single year and aimed at inducing a higher contract price insufficient.); USA
Network v. Jones Intercable, Inc., 729 F. Supp. 304, 318, R.I.C.O. Bus. Disp. Guide (CCH) P 7419 (S.D. N.Y. 1990)
(Single scheme lasting some three and a half months is insufficient.); Utz v. Correa, 631 F. Supp. 592, 595, R.I.C.O. Bus.
Disp. Guide (CCH) P 6226 (S.D. N.Y. 1986); Third Circuit: Marshall-Silver Const. Co., Inc. v. Mendel, 894 F.2d 593,
597–98, R.I.C.O. Bus. Disp. Guide (CCH) P 7404 (3d Cir. 1990) (overruled by, Tabas v. Tabas, 47 F.3d 1280, R.I.C.O.
Bus. Disp. Guide (CCH) P 8754, R.I.C.O. Bus. Disp. Guide (CCH) P 8937 (3d Cir. 1995)) (Dismissal of a RICO claim
involving a single short-lived scheme); Peterson v. Philadelphia Stock Exchange, 717 F. Supp. 332, 336–37 (E.D. Pa.
1989), on reconsideration, 1989 WL 95553 (E.D. Pa. 1989) (Single scheme involving single victim, and two perpetrators
and occurring over the course of only a few months, is insufficient.); Ferdinand Drexel Inv. Co., Inc. v. Alibert, 723
F. Supp. 313, 331–31, Fed. Sec. L. Rep. (CCH) P 94942 (E.D. Pa. 1989), judgment aff'd, 904 F.2d 694 (3d Cir. 1990)
(Two mailings to a single victim within a single month is insufficient.); U.S. v. Freshie Co., 639 F. Supp. 442 (E.D. Pa.
1986); Fourth Circuit: U.S. v. Berlin, 707 F. Supp. 832, 837–38 (E.D. Va. 1989) (Single scheme lasting merely fifteen
months, involving isolated acts of bribery and wire fraud and affecting only one victim, was insufficient.); Parcoil Corp.
v. NOWSCO Well Service, Ltd., 887 F.2d 502, 503–05, R.I.C.O. Bus. Disp. Guide (CCH) P 7348 (4th Cir. 1989) (Single
scheme to defraud, involving two perpetrators, one victim, and seventeen predicate acts, over a four-month contract
period, was insufficiently continuous.); Eastern Pub. and Advertising Inc. v. Chesapeake Pub. and Advertising, Inc.,
895 F.2d 971, 972–73, R.I.C.O. Bus. Disp. Guide (CCH) P 7421 (4th Cir. 1990) (Single “Closed-ended” scheme, which
posed no threat of continuity and lasted three months, is insufficient.); Menasco, Inc. v. Wasserman, 886 F.2d 681, 685,
R.I.C.O. Bus. Disp. Guide (CCH) P 7321 (4th Cir. 1989) (Single fraudulent scheme, involving one perpetrator and one
set of victims, which occurred over a year, fails to constitute both a “special threat of social well-being” as well as a threat
of “continuity[.]”); Meadow Ltd. Partnership v. Heritage Sav. and Loan Ass'n, 639 F. Supp. 643, 650, R.I.C.O. Bus.
Disp. Guide (CCH) P 6417 (E.D. Va. 1986) (“pattern” requirement not satisfied where cast of characters, purpose, result
and alleged victim remained the same). Fifth Circuit: R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350, 1354–55, R.I.C.O.
Bus. Disp. Guide (CCH) P 6101 (5th Cir. 1985) (rejected by, Lawaetz v. Bank of Nova Scotia, 23 V.I. 132, 653 F. Supp.
1278 (D.V.I. 1987)) (two related acts are sufficient even if part of single scheme); Smoky Greenhaw Cotton Co., Inc. v.
Merrill Lynch, Pierce, Fenner and Smith, Inc., 785 F.2d 1274, 1280–1281, Fed. Sec. L. Rep. (CCH) P 92528, Fed. Sec.
L. Rep. (CCH) P 92767, R.I.C.O. Bus. Disp. Guide (CCH) P 6221, R.I.C.O. Bus. Disp. Guide (CCH) P 6269 (5th Cir.
1986) (undecided after Sedima opinion); Sixth Circuit: Fry v. General Motors Corp., 728 F. Supp. 455, 458, R.I.C.O.

Bus. Disp. Guide (CCH) P 7460 (E.D. Mich. 1989) (Predicate acts extending over a few weeks or months is insufficient.);
Seventh Circuit: Peterson v. Baloun, 715 F. Supp. 212, 216, Fed. Sec. L. Rep. (CCH) P 95243 (N.D. Ill. 1989) (Single
scheme to defraud, involving one victim and one transaction, was insufficient; separate payment made in furtherance
of same fraud could not be used to transform that same scheme into two separate transactions.); Orchard Hills Co-op.
Apartments, Inc. v. Germania Federal Sav. and Loan Ass'n, 720 F. Supp. 127, 131–32, R.I.C.O. Bus. Disp. Guide (CCH)
P 7380 (C.D. Ill. 1989) (Single scheme involving one transaction, one victim, and one distinct injury and threatening no
continued harm, is insufficient.); Flannery v. IFA Inc., 722 F. Supp. 498, 500–01 (N.D. Ill. 1989) (Single scheme to induce
employment insufficient.); Triad Associates, Inc. v. Chicago Housing Authority, 892 F.2d 583, 594–95, R.I.C.O. Bus.
Disp. Guide (CCH) P 7402, 15 Fed. R. Serv. 3d 477 (7th Cir. 1989) (abrogated by, Board of County Com'rs, Wabaunsee
County, Kan. v. Umbehr, 518 U.S. 668, 116 S. Ct. 2342, 135 L. Ed. 2d 843, 11 I.E.R. Cas. (BNA) 1393 (1996)) (Single
scheme to oust a security service in relation to a single contract, is insufficient.); Management Computer Services, Inc.
v. Hawkins, Ash, Baptie & Co., 883 F.2d 48, 51, R.I.C.O. Bus. Disp. Guide (CCH) P 7292 (7th Cir. 1989) (A contract
dispute involving one victim, one transaction and two predicate acts based on the unauthorized copying of software was
insufficient.); Sutherland v. O'Malley, 882 F.2d 1196, 1204–05, R.I.C.O. Bus. Disp. Guide (CCH) P 7288 (7th Cir. 1989)
(Single scheme to divert attorneys' fees which occurred over a five month period and involved only a single victim and
a single injury is insufficient.); Fleet Management Systems, Inc. v. Archer-Daniels-Midland Co., Inc., 627 F. Supp. 550,
553–60, R.I.C.O. Bus. Disp. Guide (CCH) P 6218 (C.D. Ill. 1986) (rejected by, Lawaetz v. Bank of Nova Scotia, 23 V.I.
132, 653 F. Supp. 1278 (D.V.I. 1987)) (single scheme with eight predicate acts over two years is not a pattern); Eighth
Circuit: Superior Oil Co. v. Fulmer, 785 F.2d 252, 257, R.I.C.O. Bus. Disp. Guide (CCH) P 6192 (8th Cir. 1986) (rejected
by, Ghouth v. Conticommodity Services, Inc., 642 F. Supp. 1325 (N.D. Ill. 1986)) and (rejected by, Lawaetz v. Bank of
Nova Scotia, 23 V.I. 132, 653 F. Supp. 1278 (D.V.I. 1987)) and (rejected by, Beck v. Manufacturers Hanover Trust Co.,
820 F.2d 46, R.I.C.O. Bus. Disp. Guide (CCH) P 6643 (2d Cir. 1987)) and (abrogated by, H.J. Inc. v. Northwestern Bell
Telephone Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195, R.I.C.O. Bus. Disp. Guide (CCH) P 7237, 103 Pub. Util.
Rep. 4th (PUR) 513 (1989)) (numerous acts of mail fraud did not satisfy “pattern” requirement since there was no proof
of past crimes or crimes elsewhere); Tenth Circuit: Torwest DBC, Inc. v. Dick, 628 F. Supp. 163, 166–167, Fed. Sec.
L. Rep. (CCH) P 92524, R.I.C.O. Bus. Disp. Guide (CCH) P 6196 (D. Colo. 1986), judgment aff'd, 810 F.2d 925, Fed.
Sec. L. Rep. (CCH) P 93106, R.I.C.O. Bus. Disp. Guide (CCH) P 6507 (10th Cir. 1987); Eleventh Circuit: Hutchinson v.
Wickes Companies, Inc., 726 F. Supp. 1315, 1320–21, R.I.C.O. Bus. Disp. Guide (CCH) P 7505 (N.D. Ga. 1989) (Two-
year scheme to convert the surplus of a pension plan insufficient.); Bank of America Nat. Trust & Sav. Ass'n v. Touche
Ross & Co., 782 F.2d 966, 971, R.I.C.O. Bus. Disp. Guide (CCH) P 6189 (11th Cir. 1986) (abrogated by, Reves v. Ernst
& Young, 507 U.S. 170, 113 S. Ct. 1163, 122 L. Ed. 2d 525, Fed. Sec. L. Rep. (CCH) P 97,357, R.I.C.O. Bus. Disp. Guide
(CCH) P 8227 (1993)) (nine separate acts of mail fraud over three years involving the same parties satisfies “pattern”
requirement); D.C. Circuit: Pyramid Securities, Ltd. v. International Bank, 726 F. Supp. 1377, 1382, R.I.C.O. Bus. Disp.
Guide (CCH) P 7396 (D.D.C. 1989), decision aff'd, 924 F.2d 1114, R.I.C.O. Bus. Disp. Guide (CCH) P 7669, 18 Fed.
R. Serv. 3d 909 (D.C. Cir. 1991) (Single scheme lasting three months and involving a single victim is insufficient.).

(“Enterprise”)
Under RICO, the government also must prove as an essential element and beyond a reasonable doubt that an
“enterprise” existed. The essence of a RICO charge is not simply that a number of “racketeering” crimes were
allegedly committed. Rather, the essence of a RICO charge is that several persons formed an organization—called
an “enterprise”—for the purpose of committing “racketeering” crimes, and that through this “enterprise” they in fact
committed a pattern of “racketeering” crimes.
Congress defined “enterprise” to include “any union or group of individuals associated in fact,” but not having a legally
recognized existence in the way that a corporation has a legally recognized existence. For purposes of this case, moreover,

I instruct you that any corporation, standing alone, could not be an “enterprise.” The government alleges that the
defendants formed an “enterprise” consisting of a group of people and companies associated together for a common
purpose of engaging in a course of conduct. To prove the existence of this type of “enterprise,” the government must
prove beyond a reasonable doubt three things:
1) That the defendants had a common purpose;
2) that the defendants had an ongoing formal or informal organizational structure; and
3) that the defendants had personnel who functioned as a continuing unit.
This proof must be in the form of evidence separate and apart from the pattern of racketeering activities in which the
“enterprise” allegedly engages.
To satisfy the “ongoing organization” requirement, the government must prove that some sort of structure or process
existed among the defendants for making decisions. In other words, the government must prove that the defendants had
some mechanism for controlling and directing the affairs of the group on an on-going, rather than on a case-by-case basis.
Regarding the requirement that a RICO “enterprise” have personnel who function as a “continuing unit,” this requires
that each person perform a recognized role in the “enterprise,” which furthers the activities of the organization. These
roles must continue to exist over time—that is, there must always be roles such as those found in a Mafia family, where
the identity of the mob members may change from time to time, but the various roles which the old and new individuals
perform remain the same. However, if an entirely new set of people begin to operate the ring, it is not the same enterprise
as it was before.
And, as I said, an enterprise is not the same thing as the “pattern of racketeering activity” in which it allegedly engages.
In other words, the word “enterprise,” when used in ordinary conversation, means an undertaking or project or a unit of
organization established to perform some task. However, under RICO, an enterprise means something special. A RICO
“enterprise” cannot simply be the undertaking of the acts of racketeering; neither can it be the minimal association which
always surrounds such acts.
Rather, a RICO “enterprise” might be demonstrated by proof that a group has an organizational pattern or system of
authority beyond what was necessary to perpetrate the alleged “racketeering” crimes. In other words, if you eliminate the
predicate acts, the evidence must still show the on-going structure engaging in transactions and functions. The command
system of a Mafia family is an example of this type of structure.
Any two criminal acts committed by the same people will necessarily be surrounded by some degree of organization,
and no two individuals will ever jointly perpetrate a crime without at least some degree of association apart from the
commission of the crime itself. Thus, unless there is proof of some structure separate from the racketeering activity and
distinct from the level of organization that necessarily exists when two crimes are committed by the same people, the
government has failed to prove the enterprise element.

The ties between the individual associates that are implied by the concepts of continuity, unity, shared purpose, and
identifiable structure, operate to guard against the danger that guilty will be adjudged solely by virtue of association.
U.S. v. Turkette, 452 U.S. 576, 583–584, 101 S. Ct. 2524, 2528–29, 69 L. Ed. 2d 246, R.I.C.O. Bus. Disp. Guide (CCH)
P 6100 (1981). U.S. v. Bledsoe, 674 F.2d 647, 660, (8th Cir. 1982) (rejected by, U.S. v. Patrick, 248 F.3d 11, 56 Fed. R.
Evid. Serv. 1350 (1st Cir. 2001)). U.S. v. Griffin, 660 F.2d 996, 1000 (4th Cir. 1981). U.S. v. Anderson, 626 F.2d 1358,
1372, 6 Fed. R. Evid. Serv. 581 (8th Cir. 1980). U.S. v. Lemm, 680 F.2d 1193, 1198, 10 Fed. R. Evid. Serv. 1185 (8th Cir.
1982). U.S. v. Cauble, 706 F.2d 1322, 1331 n.16 (5th Cir. 1983). U.S. v. Riccobene, 709 F.2d 214, 221–222, 13 Fed. R.
Evid. Serv. 564 (3d Cir. 1983). Bennett v. Berg, 685 F.2d 1053, 1060, R.I.C.O. Bus. Disp. Guide (CCH) P 6100 (8th Cir.
1982), on reh'g, 710 F.2d 1361, R.I.C.O. Bus. Disp. Guide (CCH) P 6100 (8th Cir. 1983) (rejected by, Virden v. Graphics
One, 623 F. Supp. 1417, R.I.C.O. Bus. Disp. Guide (CCH) P 6128, R.I.C.O. Bus. Disp. Guide (CCH) P 6137 (C.D. Cal.
1985)). U.S. v. Phillips, 664 F.2d 971, 1012, 9 Fed. R. Evid. Serv. 970 (5th Cir. 1981). 18 U.S.C.A. § 1961(4). Enterprise
Need Not Have an Existence Separate From the Pattern of Racketeering Activity (Majority View). U.S. v. Hewes, 729
F.2d 1302, 1310–11, 15 Fed. R. Evid. Serv. 1075 (11th Cir. 1984). U.S. v. Elliott, 571 F.2d 880, 898 (5th Cir. 1978). U.S.
v. Zielie, 734 F.2d 1447, 15 Fed. R. Evid. Serv. 1928 (11th Cir. 1984). U.S. v. Tille, 729 F.2d 615, 626, 15 Fed. R. Evid.
Serv. 597 (9th Cir. 1984) (proof of association with illegal activities is sufficient).
For example, the Eighth Circuit's view of the scope of RICO in U.S. v. Bledsoe, 674 F.2d 647, 665 (8th Cir. 1982) (rejected
by, U.S. v. Patrick, 248 F.3d 11, 56 Fed. R. Evid. Serv. 1350 (1st Cir. 2001)), differs from the Fifth Circuit's observation
in U.S. v. Elliott, 571 F.2d 880, 896–900 (5th Cir. 1978), that RICO reaches any group of individuals “whose association,
however loose or informal, furnishes a vehicle for the commission of two or more predicate crimes.” In U.S. v. Diecidue,
603 F.2d 535, 545, 4 Fed. R. Evid. Serv. 1294 (5th Cir. 1979) the Fifth Circuit expressly rejected the argument that
an “enterprise” had to possess an existence separable from the “pattern of racketeering activity” to which some or all
of its members ultimately resort. The fact that the Eighth Circuit's narrower view of the scope of RICO differed from
the Fifth Circuit's position was recognized by the Eighth Circuit twice: in U.S. v. Bledsoe, 674 F.2d 647, 661 (8th Cir.
1982) (rejected by, U.S. v. Patrick, 248 F.3d 11, 56 Fed. R. Evid. Serv. 1350 (1st Cir. 2001)), where that Court expressed
“grave doubts” as to the propriety of decisions such as Elliott; and in Bledsoe's predecessor, U.S. v. Anderson, 626 F.2d
1358, 1372, 6 Fed. R. Evid. Serv. 581 (8th Cir. 1980). The Eighth Circuit later determined that the Supreme Court in
U.S. v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 5828, 69 L. Ed. 2d 246, R.I.C.O. Bus. Disp. Guide (CCH) P 6100
(1981), did not require abandoning its view of what must be proved for a RICO conviction, finding solace in the Supreme
Court's comment that in order to secure a conviction under RICO, the government must prove both the existence of an
“enterprise” and the connected “pattern of racketeering activity,” and that the existence of an “enterprise” at all times
remains a “separate element which must be proved by the Government.” U.S. v. Lemm, 680 F.2d 1193, 1198, 10 Fed. R.
Evid. Serv. 1185 (8th Cir. 1982). What the Eighth Circuit ignored, however, was language in Turkette on the same page
giving recognition to situations where proof of the “enterprise” and proof of the “pattern of racketeering activity” might
coalesce. The Eleventh Circuit, which deems Elliott to serve as binding precedent, has examined that decision in light of
Turkette and has held that the precedential value of Elliott has not diminished as a result of Turkette. U.S. v. Cagnina,
697 F.2d 915, 920–921, 12 Fed. R. Evid. Serv. 492 (11th Cir. 1983) (rejected by, In re National Mortg. Equity Corp.
Mortg. Pool Certificates Securities Litigation, 636 F. Supp. 1138, R.I.C.O. Bus. Disp. Guide (CCH) P 6570 (C.D. Cal.
1986)). Other appellate courts agree. U.S. v. Qaoud, 777 F.2d 1105, 1114–1116 (6th Cir. 1985); U.S. v. Mazzei, 700 F.2d
85, 89–90 (2d Cir. 1983). No other court sides with the Eighth Circuit. The Fifth Circuit has not been called upon to decide
whether the Eighth Circuit is correct and whether Turkette has sapped Elliott and Diecidue of their precedential value.
U.S. v. Cauble, 706 F.2d 1322, 1340 (5th Cir. 1983). In a recent decision, the court recognized that an association in fact
enterprise must be more than a “summation of predicate acts.” It must have an existence that can be “defined” apart
from the commission of the predicate acts.

Ocean Energy II, Inc. v. Alexander & Alexander, Inc., 868 F.2d 740, 748–749, R.I.C.O. Bus. Disp. Guide (CCH) P 7200
(5th Cir. 1989). Enterprise Must Have Existence Entirely Independent of Racketeering Activity
(Minority View):
U.S. v. Bledsoe, 674 F.2d 647, 659–66 (8th Cir. 1982) (rejected by, U.S. v. Patrick, 248 F.3d 11, 56 Fed. R. Evid. Serv.
1350 (1st Cir. 2001)) (RICO requires proof of the existence of a definite association-in-fact “enterprise” with a structure
separate from the “racketeering activity[.]”).
U.S. v. Anderson, 626 F.2d 1358, 1362–72, 6 Fed. R. Evid. Serv. 581 (8th Cir. 1980).
U.S. v. Mazzei, 700 F.2d 85, 89–90 (2d Cir. 1983). Bennett v. Berg, 685 F.2d 1053, 1060, R.I.C.O. Bus. Disp. Guide
(CCH) P 6100 (8th Cir. 1982), on reh'g, 710 F.2d 1361, R.I.C.O. Bus. Disp. Guide (CCH) P 6100 (8th Cir. 1983) (rejected
by, Virden v. Graphics One, 623 F. Supp. 1417, R.I.C.O. Bus. Disp. Guide (CCH) P 6128, R.I.C.O. Bus. Disp. Guide
(CCH) P 6137 (C.D. Cal. 1985)).
Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986, 993–95, R.I.C.O. Bus. Disp. Guide (CCH) P 7304 (8th
Cir. 1989) (Association-in-fact enterprise comprised entirely of legitimate businesses possessed an ascertainable structure
distinct from the alleged racketeering activity.).
Compromise View: U.S. v. Riccobene, 709 F.2d 214, 221–222, 13 Fed. R. Evid. Serv. 564 (3d Cir. 1983) (the issues of
ongoing organization, continuing membership, withdrawal and separate existence are fact issues for the jury).
Proof of Existance of Enterprise:
U.S. v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 2528, 69 L. Ed. 2d 246, R.I.C.O. Bus. Disp. Guide (CCH) P 6100
(1981).
U.S. v. Phillips, 664 F.2d 971, 1011, 9 Fed. R. Evid. Serv. 970 (5th Cir. 1981).
U.S. v. Bascaro, 742 F.2d 1335, 1362 (11th Cir. 1984) (abrogated by, U.S. v. Lewis, 492 F.3d 1219 (11th Cir. 2007)).
U.S. v. Hartley, 678 F.2d 961, 999, 11 Fed. R. Evid. Serv. 128 (11th Cir. 1982) (abrogated by, U.S. v. Goldin Industries,
Inc., 219 F.3d 1268, R.I.C.O. Bus. Disp. Guide (CCH) P 9914 (11th Cir. 2000)).
U.S. v. Stratton, 649 F.2d 1066, 1075 (5th Cir. 1981). If the plaintiff, however, pleads one specific type of “enterprise,”
facts must support that existence. Otherwise, there is a fatal variance.

U.S. v. Bledsoe, 674 F.2d 647, 660 (8th Cir. 1982) (rejected by, U.S. v. Patrick, 248 F.3d 11, 56 Fed. R. Evid. Serv. 1350
(1st Cir. 2001)).
Ocean Energy II, Inc. v. Alexander & Alexander, Inc., 868 F.2d 740, 748–49, R.I.C.O. Bus. Disp. Guide (CCH) P 7200
(5th Cir. 1989) (When individuals associate to commit multiple criminal acts their relationship gains an “ongoing nature”
and thus an association-in-fact.).
Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986, 995–96, R.I.C.O. Bus. Disp. Guide (CCH) P 7304 (8th
Cir. 1989).
U.S. v. Cauble, 706 F.2d 1322, 1340 (5th Cir. 1983).
Definition of Enterprise:
18 U.S.C.A. § 1961(4). The term “enterprise” encompasses both legitimate or illegitimate “enterprises.”
U.S. v. Turkette, 452 U.S. 576, 583–584, 101 S. Ct. 2524, 2528–29, 69 L. Ed. 2d 246, R.I.C.O. Bus. Disp. Guide (CCH)
P 6100 (1981).
U.S. v. Ruggiero, 726 F.2d 913, 923, 14 Fed. R. Evid. Serv. 1484 (2d Cir. 1984) (abrogated by, Salinas v. U.S., 522 U.S.
52, 118 S. Ct. 469, 139 L. Ed. 2d 352, R.I.C.O. Bus. Disp. Guide (CCH) P 9382 (1997))).
U.S. v. Lemm, 680 F.2d 1193, 1198, 10 Fed. R. Evid. Serv. 1185 (8th Cir. 1982).
U.S. v. Thevis, 665 F.2d 616, 626, 9 Fed. R. Evid. Serv. 1025 (5th Cir. 1982).
U.S. v. Sutton, 642 F.2d 1001, 1006–1009 (6th Cir. 1980) (rejected by, U.S. v. Davis, 793 F.2d 246 (10th Cir. 1986)) and
(rejected by, U.S. v. Calabrese, 825 F.2d 1342 (9th Cir. 1987)).
U.S. v. Rone, 598 F.2d 564, 568–569 (9th Cir. 1979).
U.S. v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978).
U.S. v. Cauble, 706 F.2d 1322 (5th Cir. 1983).

(“Mens Rea”)

Participation in the enterprise's affairs, if any, has to be knowing and willful, in addition to the willful commission of the
predicate offenses. Hence, even if you find that defendant willfully committed at least two “racketeering” offenses, you
must further find that he knowingly and willfully joined and participated in the enterprise's affairs.

(“Associated With”)
As I said there is no guilt by association under RICO. Thus, as another essential element of a RICO charge, the
government must prove beyond a reasonable doubt that each defendant knew something about his co-defendant's
racketeering activities committed through the enterprise.
U.S. v. Martino, 648 F.2d 367, 394 (5th Cir. 1981), on reconsideration in part, 650 F.2d 651 (5th Cir. 1981) and on reh'g,
681 F.2d 952 (5th Cir. 1982), judgment aff'd, 464 U.S. 16, 104 S. Ct. 296, 78 L. Ed. 2d 17, R.I.C.O. Bus. Disp. Guide
(CCH) P 6100 (1983), on reconsideration in part, 650 F.2d 651 (5th Cir. 1981) and on reh'g, 681 F.2d 952 (5th Cir. 1982),
judgment aff'd, 464 U.S. 16, 104 S. Ct. 296, 78 L. Ed. 2d 17, R.I.C.O. Bus. Disp. Guide (CCH) P 6100 (1983).
U.S. v. Elliott, 571 F.2d 880, 903 (5th Cir. 1978).
U.S. v. Bledsoe, 674 F.2d 647, 659–66 (8th Cir. 1982) (rejected by, U.S. v. Patrick, 248 F.3d 11, 56 Fed. R. Evid. Serv.
1350 (1st Cir. 2001)).
U.S. v. Anderson, 626 F.2d 1358, 1362–72, 6 Fed. R. Evid. Serv. 581 (8th Cir. 1980).
U.S. v. Mazzei, 700 F.2d 85, 89–90 (2d Cir. 1983).

(“Conduct or Participation in the Enterprise's Affairs”)
For the same reasons, defendant's conduct or participation in the enterprise's affairs must be related to the management
of the affairs of the enterprise. You may not infer from a defendant's status as an officer, shareholder and/or employee
that he used any facility to promote, manage, establish, carry on, or facilitate the promotion, management, establishment,
or carrying on of the enterprise. Hence, unless a defendant participated in the operation or management of the enterprise
itself, the requisite degree of participation in the conduct of the affairs of the enterprise will be deficient.
U.S. v. Truglio, 731 F.2d 1123, 1132 (4th Cir. 1984) (overruled by, U.S. v. Burgos, 94 F.3d 849 (4th Cir. 1996))).
Bennett v. Berg, 710 F.2d 1361, 1364, R.I.C.O. Bus. Disp. Guide (CCH) P 6100 (8th Cir. 1983) (rejected by, Virden v.
Graphics One, 623 F. Supp. 1417, R.I.C.O. Bus. Disp. Guide (CCH) P 6128, R.I.C.O. Bus. Disp. Guide (CCH) P 6137
(C.D. Cal. 1985)).

U.S. v. Mandel, 591 F.2d 1347, 1375, 5 Fed. R. Evid. Serv. 133 (4th Cir. 1979), on reh'g, 602 F.2d 653 (4th Cir. 1979)
and (rejected by, Virden v. Graphics One, 623 F. Supp. 1417, R.I.C.O. Bus. Disp. Guide (CCH) P 6128, R.I.C.O. Bus.
Disp. Guide (CCH) P 6137 (C.D. Cal. 1985)).
U.S. v. Kaye, 586 F. Supp. 1395, 1400 (N.D. Ill. 1984) (rejected by, Virden v. Graphics One, 623 F. Supp. 1417, R.I.C.O.
Bus. Disp. Guide (CCH) P 6128, R.I.C.O. Bus. Disp. Guide (CCH) P 6137 (C.D. Cal. 1985)).
Participation in Operation or Management:
Bennett v. Berg, 710 F.2d 1361, 1364, R.I.C.O. Bus. Disp. Guide (CCH) P 6100 (8th Cir. 1983) (rejected by, Virden v.
Graphics One, 623 F. Supp. 1417, R.I.C.O. Bus. Disp. Guide (CCH) P 6128, R.I.C.O. Bus. Disp. Guide (CCH) P 6137
(C.D. Cal. 1985)); U.S. v. Mandel, 591 F.2d 1347, 1375, 5 Fed. R. Evid. Serv. 133 (4th Cir. 1979), on reh'g, 602 F.2d
653 (4th Cir. 1979) and (rejected by, Virden v. Graphics One, 623 F. Supp. 1417, R.I.C.O. Bus. Disp. Guide (CCH) P
6128, R.I.C.O. Bus. Disp. Guide (CCH) P 6137 (C.D. Cal. 1985)) (operation or management of “enterprise” required);
Occupational-Urgent Care Health Systems, Inc. v. Sutro & Co., Inc., 711 F. Supp. 1016, 1025–26, R.I.C.O. Bus. Disp.
Guide (CCH) P 7235 (E.D. Cal. 1989); Vista Co. v. Columbia Pictures Industries, Inc., 725 F. Supp. 1286, 1297–98,
R.I.C.O. Bus. Disp. Guide (CCH) P 7388 (S.D. N.Y. 1989) (Partnership's claim under 1962(c) had been met by allegations
that the Defendant was in a position to commit the predicate acts solely by virtue of his involvement in the enterprise
operation or management of that enterprise.).
Conduct Facilitated by Association with the Enterprise: U.S. v. Cauble, 706 F.2d 1322, 1341 (5th Cir. 1983) (defendant's
position in “enterprise” permitted him to make facilities and funds available); U.S. v. LeRoy, 687 F.2d 610, 617, 111
L.R.R.M. (BNA) 2238, 95 Lab. Cas. (CCH) P 13754 (2d Cir. 1982) (position in union enabled defendant to receive
illegal payments); U.S. v. Kovic, 684 F.2d 512, 516–17, 11 Fed. R. Evid. Serv. 854 (7th Cir. 1982); Yellow Bus Lines,
Inc. v. Drivers, Chauffeurs & Helpers Local Union 639, 883 F.2d 132, 142–143, 132 L.R.R.M. (BNA) 2164, 113 Lab.
Cas. (CCH) P 11530, 113 Lab. Cas. (CCH) P 11669, R.I.C.O. Bus. Disp. Guide (CCH) P 7286, R.I.C.O. Bus. Disp.
Guide (CCH) P 7364 (D.C. Cir. 1989), on reh'g in part, 913 F.2d 948, 135 L.R.R.M. (BNA) 2177, 116 Lab. Cas. (CCH)
P 10275, R.I.C.O. Bus. Disp. Guide (CCH) P 7554 (D.C. Cir. 1990).

(“Interstate Commerce”)
Under RICO, the government also must prove as an essential element and beyond a reasonable doubt that an enterprise
engaged in or performed activities which affected interstate commerce. Therefore, if you find that an enterprise existed
as alleged by the government, then you must also decide whether that enterprise engaged in or had any effect upon
interstate commerce. Interstate commerce means commerce between the several states.
With respect to the requirement that the “enterprise” was engaged in, or that its activities affected, interstate commerce—
the plaintiff contends that in conducting the affairs of the enterprise the Defendants utilized interstate communications
facilities by causing the transmission of funds by mail or by wire in interstate commerce from one state to another. You
are instructed that if you do not find beyond a reasonable doubt that these transactions or events occurred, and that
they occurred in, or as a direct result of, the conduct of the affairs of the alleged enterprise, the required effect upon
interstate commerce has not been established.

R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350, 1353, R.I.C.O. Bus. Disp. Guide (CCH) P 6101 (5th Cir. 1985) (rejected
by, Lawaetz v. Bank of Nova Scotia, 23 V.I. 132, 653 F. Supp. 1278 (D.V.I. 1987)).
U.S. v. Dickens, 695 F.2d 765, 781 (3d Cir. 1982).
U.S. v. Rone, 598 F.2d 564, 573 (9th Cir. 1979).
U.S. v. Stratton, 649 F.2d 1066, 1075 (5th Cir. 1981).
U.S. v. Nerone, 563 F.2d 836 (7th Cir. 1977).

(“Racketeering Acts — General”)
The government alleges that these defendants engaged in a pattern of racketeering activity by committing two or more
acts of mail fraud, receipt of stolen goods in foreign commerce, or Travel Act offenses, in violation of Title 18 of the
United States Code, and commercial bribery, in violation of (state) law.
Before you could find that any of these defendants committed any act of racketeering activity, you would have to find
beyond a reasonable doubt that such defendant committed each essential element of the particular criminal act that
is charged. I will now instruct you as to the essential elements of each criminal act that the government charges these
defendants committed.

(“Racketeering Acts ___ and ___”)
The first type of “racketeering” act that the government charges these defendants with committing is mail fraud. 18
U.S.C.A. § 1341, provides in part that:
“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property
by means of false or fraudulent pretenses, representations, or promises … for the purpose of executing such scheme or
artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing
whatever to be sent or delivered by the Post Office Department [shall be guilty of an offense against the laws of the
United States.]”
In order to establish that a Defendant is guilty of mail fraud, the Government must prove beyond a reasonable doubt that:

1. The Defendant willfully and knowingly devised a scheme or artifice to defraud, or for obtaining money or property
by means of false pretenses, representations or promises, and
2. The Defendant used the United States Postal Service by mailing, or by causing to be mailed, some matter or thing for
the purpose of executing the scheme to defraud.
The words “scheme” and “artifice” include any plan or course of action intended to deceive others, and to obtain, by
false or fraudulent pretenses, representations, or promises, money or property from persons so deceived.
A statement or representation is “false” or “fraudulent” within the meaning of this statute if it relates to a material fact
and is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be
made with intent to defraud. A statement or representation may also be “false” or “fraudulent” when it constitutes a half
truth, or effectively conceals a material fact, with intent to defraud. A “material fact” is a fact that would be important
to a reasonable person in deciding whether to engage or not engage in a particular transaction.
To act with “intent to defraud” means to act knowingly and with the specific intent to deceive, ordinarily for the purpose
of causing some financial loss to another or bringing about some financial gain to one's self.
What must be proved beyond a reasonable doubt is that the accused knowingly and willfully devised or intended to
devise a scheme to defraud substantially the same as the one alleged in the indictment; and that the use of the U.S. mail
was closely related to the scheme in that the accused either mailed something or caused it to be mailed in an attempt to
execute or carry out the scheme. To “cause” the mails to be used is to do an act with knowledge that the use of the mails
will follow in the ordinary course of business or where such can be reasonably foreseen.
Each separate use of the mails in furtherance of a scheme to defraud constitutes a separate offense.
Pattern Jury Charges

(“Racketeering Act ___”)
The next “racketeering” act that the government charges these defendants with committing is receiving stolen goods in
foreign commerce. 18 U.S.C.A. § 2315, provides in part as follows:
“Whoever receives, conceals, stores, or sells, goods or merchandise, of the value of $5,000.00 or more … moving as, or
which are a part of … foreign commerce, knowing the same to have been stolen …[shall be guilty of an offense against
the United States].”
There are four essential elements which must be proved beyond reasonable doubt in order to establish the offense
proscribed by this law:

First: That the Defendant received or concealed or stored or sold items of stolen property as described in the indictment;
Second: That such items were moving as, or constituted a part of, foreign commerce;
Third: That such items had a value in excess of $5,000.00; and
Fourth: That the Defendant acted knowingly and willfully.
The indictment alleges that the Defendant received, concealed, stored, and sold certain stolen property. The statute
specifies these several, alternative ways in which an offense can be committed, and it is not necessary for the Government
to prove that all of such acts were in fact committed. The Government must prove beyond a reasonable doubt that the
Defendant either received, concealed, stored, or sold the stolen property; and, in order to find the defendant liable you
must agree unanimously upon the way or manner in which the offense was committed.
Also, in order to commit the offense charged a Defendant must know the property had been stolen, but he need not
know that it was moving as, or constituted a part of, foreign commerce. It is sufficient if the property has recently moved
from one country into another country as a result of a transaction or a series of related transactions which have not been
fully completed or consummated at the time of the act or acts alleged in the indictment.
The word “value” means the face, par, or market value, or cost or price, either wholesale or retail, whichever is greater.
U.S. v. Gipson, 553 F.2d 453, 458–59 (5th Cir. 1977) (rejected by, Rice v. State, 311 Md. 116, 532 A.2d 1357, 75 A.L.R.4th
73 (1987)).
Pattern Jury Instructions

(“Racketeering Act ___”)
The next “racketeering act that the government charges these defendants with committing is “commercial bribery” in
violation of (state) law. Section ___ of the ___ Penal Code, as in effect at the time the government charges it was violated,
provided in part that:
(b) A person who is a fiduciary commits an offense if he intentionally or knowingly solicits, accepts, or agrees to accept
any benefit as consideration for: (1) violating a duty to a beneficiary; or (2) otherwise causing harm to a beneficiary by
act or ommission. (c) A person commits an offense if he offers, confers, or agrees to confer any benefit the acceptance
of which is an offense under Subsection (b) of this section.

A “fiduciary” is an officer, director, partner, manager or other participant in the direction of the affairs of a corporation
or an association, or an agent or employee. A “beneficiary” is a person on whose behalf the “fiduciary” is acting.

(“Racketeering Act Number ___”)
The next “racketeering” act that the government charges these defendants with committing is a violation of the federal
Travel Act. 18 U.S.C.A. § 1952(a)(3) provides that:
“Whoever travels in interstate … commerce or uses any facility in interstate commerce … with intent to—
(3) … promote, manage, establish, carry on, or facilitate the promotion, management, establishment or carrying on of
any unlawful activity [and thereafter performs or attempts to perform any act to promote, manage, establish or carry on
such unlawful activity] [shall be guilty of an offense against the United States].”
There are three essential elements which must be proved beyond a reasonable doubt in order to establish the offense
proscribed by this law:
First: That the Defendant traveled in interstate commerce on or about the time, and between the places, charged in the
indictment;
Second: That the Defendant engaged in such travel and with the specific intent to promote, manage, establish or carry
on an “unlawful activity”, as hereafter defined; and
Third: That the Defendant thereafter knowingly and willfully committed an act to promote, manage, establish or carry
on such “unlawful activity.”
The term “interstate commerce” means transportation or movement between one state and another state, and while it
must be proved that the Defendant traveled in interstate commerce with the specific intent to promote, manage, establish
or carry on an “unlawful activity,” it need not be proved that such purpose was the only reason or motive prompting
the travel.
The term “unlawful activity” includes commercial bribery in violation of the laws of the state in which it is committed.

(“Other Racketeering Acts”)
The government charges that other defendants—but not defendants X, Y, & Z—committed one other type of
“racketeering” act. Specifically, the government charges that these other defendants violated the statute against
obstruction of justice. I instruct you that the government does not allege that defendants X, Y, & Z violated RICO in this
way. Therefore, you may not consider any evidence regarding charges of obstruction of justice as evidence of a RICO
violation by these defendants.

(“Unanimous Verdict”)
You are further instructed that you must unanimously agree concerning each Defendant under consideration as to which
of the two predicate offenses he is alleged to have committed. It would not be sufficient if some of the jurors should
find that a Defendant committed two of the predicate offenses while the remaining jurors found that he committed two
different offenses. You must all agree that the same defendant committed the same two predicate offenses in order to
find a Defendant liable for RICO.
U.S. v. Ruggiero, 726 F.2d 913, 921–923, 14 Fed. R. Evid. Serv. 1484 (2d Cir. 1984) (abrogated by, Salinas v. U.S., 522
U.S. 52, 118 S. Ct. 469, 139 L. Ed. 2d 352, R.I.C.O. Bus. Disp. Guide (CCH) P 9382 (1997))).
U.S. v. Ballard, 663 F.2d 534, 554 (5th Cir. 1981), reh'g denied and opinion modified, 680 F.2d 352 (5th Cir. 1982).

(“Statute of Limitations”)
No criminal action shall be maintained unless brought within a specified period.
One of the predicate acts of racketeering, if any you so find, must have been personally committed within five years of
the date of the indictment. The indictment was filed on [date of indictment]. The statute of limitations must be satisfied
as to each defendant.
If you find that a defendant personally committed at least two predicate acts, but you further find that he personally
committed those acts, you so find, before ___, then that defendant has no criminal responsibility for the RICO offense
in Count ___.
U.S. v. Walsh, 700 F.2d 846, 851, 69 A.L.R. Fed. 233 (2d Cir. 1983).
U.S. v. Bethea, 672 F.2d 407, 419 (5th Cir. 1982).


(“Nexus Between Enterprise, Defendant, and Racketeering Activity”)
RICO criminalizes the conduct of an enterprise through a pattern of racketeering activities and not merely the
defendant engaging in racketeering activity. Therefore, there must be a nexus—a connection—between the enterprise,
the defendant, and the pattern of racketeering activity.
The mere fact that a defendant works for a legitimate business and commits racketeering acts while on the business
premises does not establish that the affairs of the enterprise have been conducted through a pattern of racketeering
activity. Racketeering activity alone does not violate RICO. Rather, to violate RICO, the illegal activity must advance
the affairs of the enterprise. Acts performed should be necessary and helpful to the operation of the enterprise. To find
that any defendant has conducted or participated in the affairs of the enterprise “through” a pattern of racketeering
activity, the government must prove beyond a reasonable doubt each of the following facts:
1. That, beyond a reasonable doubt, the party accused of violating RICO has in fact committed the racketeering acts
alleged;
2. That the party accused of violating RICO had a position in the enterprise which facilitated, or played an essential role
in, the commission of those racketeering acts; and
3. That the racketeering acts had some effect upon the enterprise. You may find such an effect if you find that the
enterprise's affairs were advanced or furthered by the pattern of racketeering activity. This is another way of saying
that the pattern of racketeering activity must be related to the affairs of the enterprise.
However, a defendant's mere association with a lawful enterprise whose affairs are conducted through a pattern of
racketeering activity in which he is not personally engaged does not establish his guilt under RICO.
U.S. v. Phillips, 664 F.2d 971, 1011, 1014, 9 Fed. R. Evid. Serv. 970 (5th Cir. 1981) (gravaman of RICO offense is conduct
of an enterprise through a pattern of racketeering activity).
U.S. v. Martino, 648 F.2d 367, 381–382 (5th Cir. 1981), on reconsideration in part, 650 F.2d 651 (5th Cir. 1981) and on
reh'g, 681 F.2d 952 (5th Cir. 1982), judgment aff'd, 464 U.S. 16, 104 S. Ct. 296, 78 L. Ed. 2d 17, R.I.C.O. Bus. Disp.
Guide (CCH) P 6100 (1983) (RICO proscribes the furthering of the enterprise, not the predicate acts; acts performed
should be “necessary and helpful to the operation of the enterprise.).
U.S. v. Cauble, 706 F.2d 1322, 1331–1332 (5th Cir. 1983).
U.S. v. Barber, 668 F.2d 778, 10 Fed. R. Evid. Serv. 258 (4th Cir. 1982).
U.S. v. Erwin, 793 F.2d 656, 671 (5th Cir. 1986).

U.S. v. Manzella, 782 F.2d 533, 538, 20 Fed. R. Evid. Serv. 196 (5th Cir. 1986).
U.S. v. Mitchell, 777 F.2d 248, 258 (5th Cir. 1985) (racketeering act must “be conducted through a defined enterprise”).
U.S. v. Welch, 656 F.2d 1039, 1060–61 (5th Cir. 1981) (acts must be “related to” the affairs of enterprise).
U.S. v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 2528–29, 69 L. Ed. 2d 246, R.I.C.O. Bus. Disp. Guide (CCH) P
6100 (1981) (activities must be “connected” to enterprise).
Haroco, Inc. v. American Nat. Bank and Trust Co. of Chicago, 747 F.2d 384, 400, R.I.C.O. Bus. Disp. Guide (CCH) P
6100 (7th Cir. 1984), decision aff'd, 473 U.S. 606, 105 S. Ct. 3291, 87 L. Ed. 2d 437, Fed. Sec. L. Rep. (CCH) P 92087,
R.I.C.O. Bus. Disp. Guide (CCH) P 6100, 1985-2 Trade Cas. (CCH) ¶ 66667 (1985).
Alcorn County, Miss. v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1168, 39 Fed. R. Serv. 2d 171, 76 A.L.R. Fed. 181
(5th Cir. 1984) (abrogated by, U.S. v. Cooper, 135 F.3d 960 (5th Cir. 1998)).
U.S. v. Elliott, 571 F.2d 880, 899 n.23 (5th Cir. 1978).

(“Withdrawal”)
As you have been instructed, an enterprise requires an ongoing organization and continuing membership.
So, if a Defendant becomes a member of an enterprise but later changes his mind and withdraws before he has personally
committed any racketeering acts as previously defined, then the crime was not complete at that time, and the Defendant
who withdrew cannot be convicted—he would be not guilty of the alleged RICO offense.
U.S. v. Riccobene, 709 F.2d 214, 221–222, 13 Fed. R. Evid. Serv. 564 (3d Cir. 1983).
U.S. v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981) (abrogated by, Salinas v. U.S., 522 U.S. 52, 118 S. Ct. 469, 139 L.
Ed. 2d 352, R.I.C.O. Bus. Disp. Guide (CCH) P 9382 (1997)).
U.S. v. Sutherland, 656 F.2d 1181, 1186–87 n.4, 9 Fed. R. Evid. Serv. 278 (5th Cir. 1981).

(“Multiple Enterprises”)
The government charges that the defendants formed themselves into an illegal group for purposes of committing
“racketeering” crimes. In RICO Count ___, this allegedly illegal group is called a RICO “enterprise.”
You may find from the evidence, however, that no such “enterprise,” as alleged by the government, existed at all.
You also may find from the evidence that the defendants formed themselves into different groups—that is, different
“enterprises”—than the enterprise alleged in the indictment. If you find that no “enterprise” existed at all, or that there
existed different “enterprises” than the one alleged in the indictment, then you must find the defendants not guilty.
All of this is so because proof of several separate enterprises is not proof of the single, overall RICO enterprise charged in
the indictment. What you must do, therefore, is determine whether the single, overall enterprise charged in the indictment
existed. If you find that no such single, overall enterprise existed, then you must find the defendants not guilty. In other
words, to find a defendant guilty, you must find that he was a member of precisely the same enterprise charged in the
indictment, and not some other, separate enterprise. However, if you find that the single, overall enterprise existed, but
that certain defendants were not members of that enterprise, then you must find those defendants not guilty.
To establish a single, overall enterprise, the government must prove a single agreement to accomplish an overall objective
or goal. The government also must prove beyond a reasonable doubt that the nature of the illegal enterprise was such
that each defendant must necessarily have known that others were participating in the same illegal scheme. On this point,
therefore, you must find a defendant not guilty unless the government proves that the defendant knew (1) that he was
directly involved in an enterprise whose purpose was to profit from crime, (2) that he knew that the enterprise was larger
than his own role in it, and (3) that others, unknown to him, were participating in the illegal scheme.
That is, the participants in an enterprise must have known of the others' illegal activities and, indeed, must have joined
with one another in furtherance of the illegal activities. Each defendant must have realized that the enterprise extended
beyond his individual role. Moreover, a defendant is not responsible for the acts of the others in the enterprise that go
beyond the goals of the enterprise as that defendant understands them.
The scope of an enterprise is judged by five factors: (1) the time during which it existed; (2) the persons who participated
in the group; (3) the statutory offenses charged in the indictment; (4) the nature and scope of the allegedly illegal acts
that were committed; and (5) the locations where those events took place. Each of these factors must point toward a
single enterprise. That is, there must be similarity of time, persons, places, offenses charged, and acts undertaken before
you could find that the alleged events are tied together into a single enterprise.
For example, there are three different corporations that are defendants. The government charges that the three companies
and their employees formed one overall illegal enterprise. If you find that each company and its employees acted illegally,
but that each company and its employees did so separately and apart from each other, then you must find the defendants
not guilty, because your findings would be different from the charges brought by the government.
U.S. v. Elliott, 571 F.2d 880, 902–903 (5th Cir. 1978).

U.S. v. Sutherland, 656 F.2d 1181, 1191–1195, 9 Fed. R. Evid. Serv. 278 (5th Cir. 1981).
U.S. v. Brooklier, 685 F.2d 1208, 1222, 11 Fed. R. Evid. Serv. 703 (9th Cir. 1982).
U.S. v. Starnes, 644 F.2d 673, 677–78 (7th Cir. 1981).
Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496, 105 S. Ct. 3292, 87 L. Ed. 2d 346, Fed. Sec. L. Rep. (CCH) P
92086 (1985).
U.S. v. Bright, 630 F.2d 804, 834–835, 6 Fed. R. Evid. Serv. 550 (5th Cir. 1980).
U.S. v. Stratton, 649 F.2d 1066, 1073 n.8 (5th Cir. 1981).
U.S. v. Mitchell, 777 F.2d 248, 260 (5th Cir. 1985).
U.S. v. Nerone, 563 F.2d 836, 851–852 (7th Cir. 1977).

(“Proof of Seven Facts”)
In order to establish that the Defendants, or any of them, committed the offense charged in that a particular, there are
seven specific facts which the government must prove beyond a reasonable doubt:
First: That the defendant was a “person” as defined in these instructions;
Second: That the defendant was “associated with” an “enterprise” as both terms are defined in these instructions;
Third: That the defendant knowingly and willfully personally committed at least two of the predicate offenses previously
specified within ten years of each other, one of which must have occurred after ___;
Fourth: That the two predicate offenses allegedly committed by the defendant were connected with each other by some
common scheme, plan or motive so as to be a pattern of criminal activity and not merely a series of separate, isolated
or disconnected acts;

Fifth: That through the commission of the two or more connected offenses, the defendant “conducted or participated
in the conduct of the enterprise's affairs” as defined in these instructions;
Sixth: That the defendant's conduct or participation in the enterprise's affairs was related to the management or operation
of the affairs of the enterprise; and
Seventh: That the “enterprise” was engaged in, or that its activities affected, “interstate commerce”, as defined in these
instructions.

(“Liability of Corporations”)
Three of the defendants in this case are corporations. Because they are lifeless entities, whose existence is recognized only
by the law, corporations cannot be found guilty of any crime under the same standards that apply to the human officers
and employees of a corporation. Instead, special standards apply to criminal charges brought against corporations.
In your consideration of the charges against the corporations that are defendants here, you should first consider the
evidence presented as to the charges against the officers and the employees of the corporations. If you find that the
officers and employees of the corporations are not guilty of any offense, then you must find the corporations for whom
the officers and employees worked not guilty as well.
However, if you find any officer or employee of one of the corporations guilty of an offense, then you must examine
the evidence with respect to two issues that affect the responsibility of the corporation for the acts of its officers and
employees:
First: At the time that any officer or employee acted illegally, was he acting within the scope of his employment. That is
to say, was the employee then performing a function of the type that he was supposed to perform at his job.
Second: At the time that any officer or employee acted illegally, was he acting with the purpose to benefit the corporation
for which he worked, as opposed to a purpose to benefit only himself or others. If the answer to either of those two
questions is “no,” then you must find the defendant corporations not guilty, no matter what verdict you reach with
respect to the officers and employees of the corporations. U.S. v. Bi-Co Pavers, Inc., 741 F.2d 730, 737, 1984-2 Trade
Cas. (CCH) ¶ 66198, 16 Fed. R. Evid. Serv. 421 (5th Cir. 1984). Standard Oil Co. of Tex. v. U.S., 307 F.2d 120, 125
(5th Cir. 1962).

(“RICO — Conspiracy”)

The government also charges that the Defendants knowingly and willfully conspired to violate RICO. The alleged
conspiracy is a separate crime or offense in violation of RICO. In that regard, you must find beyond a reasonable doubt
the same seven specific facts listed in instruction number [Instruction Number], page [Page], (RICO substantive), except
that the government need not prove that two or more substantive crimes were actually committed; what the government
must prove is that the defendant personally agreed to commit two or more substantive crimes.

(“Definition of Conspiracy”)
Under the law a “conspiracy” is a combination or agreement of two or more persons to join together to attempt to
commit an offense which would be in violation of RICO. It is a kind of “partnership in criminal purposes” in which
each member becomes the agent of every other member with the objective of conducting or participating in the affairs of
the enterprise through a pattern of racketeering activity. U.S. v. Sutherland, 656 F.2d 1181, 1191–1195, 9 Fed. R. Evid.
Serv. 278 (5th Cir. 1981). Pattern Jury Instructions

(“Cautionary Instruction Conspiracy—Hearsay”)
With respect to the conspiracy offense as alleged in the indictment you should first determine, from all of the testimony
and evidence in the case, whether or not the conspiracy existed as charged in the indictment, or whether there were
multiple conspiracies as defined in instruction number [Instruction Number] on page [Page]. If you conclude that a
conspiracy did exist as alleged in the indictment, you should next determine whether the defendant under consideration
willfully became a member of such conspiracy. In determining whether a defendant was a member of the alleged
conspiracy, however, the jury should consider only that evidence, if any, pertaining to his own acts and statements. He
cannot be bound by the acts or statements of other alleged participants until it is established, beyond a reasonable doubt,
First, that a conspiracy existed as charged in the indictment; and, Second, from evidence of his own acts and statements,
that the defendant under consideration was one of its members.
On the other hand, if and when it does appear, if it should so appear, beyond a reasonable doubt from the evidence in
the case that a conspiracy did exist as charged in the indictment, and that the defendant under consideration was one
of its members, then the statements and acts knowingly made and done, during the conspiracy and in furtherance of
its objects, by any other proven member of the conspiracy, may be considered as evidence against the defendant under
consideration even though he was not present to hear the statements made or see the acts done.
This is true because, as stated earlier, a conspiracy is a kind of “partnership” under the law so that each member is an
agent of every other member, and each member is bound by or responsible for the acts and statements of every other
member made in pursuance of their unlawful scheme.
For example, during the course of the trial you have heard what are alleged to have been out-of-court declarations
by various defendants that were offered through the testimony of government agents or others. Any admission or
incriminatory statement or declaration made or act done outside of court by one defendant may only be considered

as evidence against the defendant making the statement or declaration and may not be considered as evidence against
any other defendant unless you find beyond a reasonable doubt (1) that independent evidence other than the alleged
statement or declaration has been presented that shows that the conspiracy as charged in the indictment existed; (2) that
from independent evidence of his own acts and statements the defendant against whom the statement is offered was
a member of the same conspiracy as charged in the indictment as the defendant/declarant; and (3) that the statement
was made during the course and in furtherance of that conspiracy as charged in the indictment. Because of presumptive
unreliability of co-conspirator's out-of-court statements, a co-conspirator's statement implicating the defendant in an
alleged conspiracy must be corroborated by fairly incriminating evidence. Evidence of wholly innocuous conduct or
statements by the defendant will rarely be sufficiently corroborative of the co-conspirator's statement to constitute proof,
beyond a reasonable doubt, that the defendant knew of and participated in the conspiracy. Evidence of innocent conduct
does little, if anything, to enhance the reliability of the co-conspirator's statement. A co-conspirator's statement, which is
presumptively unreliable hence inadmissible standing alone, is no more reliable when coupled with evidence of conduct
that is completely consistent with defendant's unawareness of the conspiracy.
Independent evidence separate from the out-of-court declarations must demonstrate the existence of the charged
conspiracy and defendant's membership and participation. Although a defendant's own statements may constitute
independent evidence of membership and participation, you should always consider the character and credibility of the
person who provides the testimony against a defendant. For example, the testimony of an alleged accomplice, and the
testimony of one who provides evidence against a Defendant as an informer for pay or for immunity from punishment or
for personal advantage or vindication, must always be examined and weighed by the jury with greater care and caution
that the testimony of ordinary witnesses. You, the jury, must decide whether the witness' testimony has been affected by
any of those circumstances, or by his interest in the outcome of the case, or by prejudice against the Defendant, or by the
benefits that he has received either financially, or as a result of being immunized from prosecution; and, if you determine
that the testimony of such a witness was affected by any one or more of those factors, you should keep in mind that
such testimony is always to be received with caution and weighed with great care. A witness may also be discredited or
impeached by evidence that the general reputation of the witness for truth and veracity is bad in the community where
the witness now resides, or has recently resided. If you believe that any witness has been so impeached, then it is your
exclusive province to give the testimony of that witness such credibility or weight, if any, as you may think it deserves.
Finally, any alleged statement made after the conspiracy has ended or before a defendant has joined a conspiracy was
not made during the course of and in furtherance of the conspiracy as applied to the particular defendant. For example,
statements made after the cessation of the primary purpose of the conspiracy that serve only to conceal the conspiracy are
not to be considered. Furthermore, any statements or actions of any defendant prior to the time another defendant joined
the conspiracy, if you find that a conspiracy existed and he did join in, it will not be considered against the latecomer
to the alleged conspiracy.
U.S. v. Carter, 760 F.2d 1568, 1580–81, 18 Fed. R. Evid. Serv. 108 (11th Cir. 1985) (rejected by, U.S. v. Manganellis,
864 F.2d 528, 27 Fed. R. Evid. Serv. 1063 (7th Cir. 1988)) (terminated conspiracy; independent evidence).
U.S. v. Zielie, 734 F.2d 1447, 1457, 15 Fed. R. Evid. Serv. 1928 (11th Cir. 1984).
U.S. v. Griggs, 735 F.2d 1318, 1324–25, 15 Fed. R. Evid. Serv. 1951 (11th Cir. 1984) (concealment).
U.S. v. Acosta, 763 F.2d 671, 678–680, 18 Fed. R. Evid. Serv. 365 (5th Cir. 1985).

U.S. v. James, 590 F.2d 575, 3 Fed. R. Evid. Serv. 785 (5th Cir. 1979).
U.S. v. Gold, 743 F.2d 800, 813–814, 17 Fed. R. Evid. Serv. 669 (11th Cir. 1984).
Bourjaily v. U.S., 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144, 22 Fed. R. Evid. Serv. 1105 (1987).
U.S. v. Silverman, 861 F.2d 571, 578, 27 Fed. R. Evid. Serv. 1 (9th Cir. 1988).
See, Raeder, Re-Thinking the Admissibility of Co-Conpsirator Statements, Criminal Justice, Spring 1991, at 39; ABA
Proposed Rule 808: Statement By a Co-Conspirator.
Author's Note:
This jury charge on conspiracy is a modified version of the conspiracy charge that is generally used by the courts. I have
incorporated Silverman's analysis of Bourjaily and more. In Bourjaily, the contested hearsay statements offered by the
Government to prove the preliminary facts were amply corroborated by other evidence. Because the contested statements
were fully corroborated by evidence of defendant's own actions, the court found it unnecessary to decide “whether the
courts below could have relied solely upon [the co-conspirator's] hearsay statements to determine that a conspiracy had
been established …” (Blackmun, J., joined by Brennan and Marshall, J.J., dissenting) (“It is at least heartening … to
see that the Court reserves the question whether a co-conspirator's statement alone, without any independent evidence,
could establish the existence of a conspiracy and a defendant's participation in it.”). U.S. v. Silverman, 861 F.2d 571,
577, 27 Fed. R. Evid. Serv. 1 (9th Cir. 1988).
The question has arisen as to whether, when co-conspirator hearsay is admitted, the jury needs to receive an instruction
at all. See, U.S. v. Peralta, 941 F.2d 1003, 1008–09, 34 Fed. R. Evid. Serv. 125 (9th Cir. 1991), as amended on denial
of reh'g, (Oct. 31, 1991). If the charge is written in terms of the weight and credibility of co-conspirator hearsay rather
than in terms of admissibility, such a charge is proper. U.S. v. Whitley, 670 F.2d 617, 10 Fed. R. Evid. Serv. 90 (5th Cir.
1982); U.S. v. Noll, 600 F.2d 1123, 1128 (5th Cir. 1979).

(“Membership”)
A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or
the names and identities of all of the other alleged conspirators provided that the Government establishes his knowledge
of the essentials of the conspiracy. The defendant must have an understanding of the unlawful and essential nature of
the plan, and knowingly and willfully join in that plan or associate with the objective of the conspiracy, for the evidence
to be sufficient to convict him. In other words, it is not enough for the evidence to establish a climate of activity that
reeks of something foul. The defendant must have had the deliberate, knowing, and specific intent to join the conspiracy
knowing its criminal objective.

U.S. v. Cole, 755 F.2d 748, 755 (11th Cir. 1985).
U.S. v. Saenz, 747 F.2d 930, 938, 17 Fed. R. Evid. Serv. 517 (5th Cir. 1984).
U.S. v. DeSimone, 660 F.2d 532, 537 (5th Cir. 1981).
U.S. v. Carter, 721 F.2d 1514, 1529, 84-2 U.S. Tax Cas. (CCH) P 9537, 14 Fed. R. Evid. Serv. 1613, 53 A.F.T.R.2d
84-1413 (11th Cir. 1984), vacated in part, 886 F.2d 304 (11th Cir. 1989), citing U.S. v. Sutherland, 656 F.2d 1181, 1192,
9 Fed. R. Evid. Serv. 278 (5th Cir. 1981); U.S. v. Bright, 630 F.2d 804, 834–35, 6 Fed. R. Evid. Serv. 550 (5th Cir. 1980).
U.S. v. Mitchell, 777 F.2d 248, 259–260 (5th Cir. 1985).
U.S. v. Rastelli, 870 F.2d 822, 828, 130 L.R.R.M. (BNA) 2966, 111 Lab. Cas. (CCH) P 11078, 27 Fed. R. Evid. Serv.
860 (2d Cir. 1989) (A conspirator need only know of the general details of the enterprise and that it extends beyond
his individual role).
Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986, 996, R.I.C.O. Bus. Disp. Guide (CCH) P 7304 (8th Cir.
1989) (A Defendant's misrepresentations which furthered the scheme provided sufficient evidence that he was involved
in a conspiracy to defraud).

(“Mere Presence”)
Of course, mere presence at the scene of a transaction or event, or the mere fact that certain persons may have associated
with each other, and may have assembled together and discussed common aims and interests, does not necessarily
establish proof of the existence of a conspiracy. In fact, close association with persons involved in a criminal enterprise
is insufficient to prove knowing participation in a conspiracy. Also, a person who has no knowledge of a conspiracy, but
who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator. It is
a cardinal rule of conspiracy law that one does not become a conspirator simply by virtue of knowledge of a conspiracy
and association with conspirators. The essence of conspiracy is the agreement to engage in concerted unlawful activity.
To connect the defendant to a conspiracy, the prosecution must demonstrate that the defendant agreed with others to
join the conspiracy and participate in the achievement of the illegal objective.
U.S. v. Grassi, 616 F.2d 1295, 1301, 6 Fed. R. Evid. Serv. 196 (5th Cir. 1980).

U.S. v. Perry, 624 F.2d 29, 31, 6 Fed. R. Evid. Serv. 1284 (5th Cir. 1980).
U.S. v. Miller, 742 F.2d 1279, 1285 (11th Cir. 1984).
U.S. v. DeSimone, 660 F.2d 532, 537 (5th Cir. 1981).
U.S. v. Bain, 736 F.2d 1480, 1485 (11th Cir. 1984).
U.S. v. Sarro, 742 F.2d 1286, 1298, 16 Fed. R. Evid. Serv. 971 (11th Cir. 1984).

(“RICO Conspiracy — Objective”)
The object of a RICO conspiracy is to violate a substantive RICO provision—to conduct or participate in the affairs of
the enterprise through a pattern of racketeering activities, and not merely to commit each of the predicate acts necessary
to demonstrate a pattern of racketeering activity. The gravamen of the conspiracy charge is not that each defendant
agreed to commit arson, to steal goods, etc.; rather, it is that each agreed to participate, directly or indirectly, in the
affairs of the enterprise by committing two or more predicate acts. It is necessary, moreover, that such predicate acts
be connected with each other by some common plan or motive so as to constitute a pattern and not merely a series of
isolated or disconnected acts.
The Government does not have to prove that each of the conspirators had explicitly agreed with all the others to
violate the substantive RICO provision at issue. However, the Government must prove that, as in the traditional chain
conspiracy, the nature of the scheme was such that each defendant who personally agreed to commit two or more
predicate acts must necessarily have known that others were also conspiring to participate in the same enterprise through
a pattern of racketeering activity. Unless the Government has demonstrated that a defendant knew that he was directly
involved in an enterprise whose purpose was to profit from crime, and that he knew that the enterprise was bigger
than his role in it, and that others, unknown to him, were participating in its affairs, the proof is insufficient to convict
defendant as a member of the RICO conspiracy charged. The mere fact that a defendant has conspired to violate RICO
by participating in an enterprise that was also the enterprise through which others had conspired is insufficient to convict
defendant as a member of the RICO conspiracy charged.
Each of the characters of the conspiracy must have known of the other's illegal activities, and indeed, conspired with one
another in furtherance of the illegal activities of the enterprise. Each conspirator must have realized that the conspiracy
extended beyond his individual role. A defendant is not responsible for acts of his co-conspirators which are beyond the
goals of the enterprise, as he, the defendant, understands them.

92086 (1985).

(“Personally Agree”)
In conjunction with determining the scope and participation in a RICO conspiracy, in addition to agreeing to participate
in the conduct of the enterprise through a pattern of racketeering activity, a defendant must personally agree to commit
two or more predicate acts; he cannot be held liable on the theory that he agreed to the commission of two or more
predicate crimes by other conspirators.
52, 118 S. Ct. 469, 139 L. Ed. 2d 352, R.I.C.O. Bus. Disp. Guide (CCH) P 9382 (1997))).
U.S. v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981) (abrogated by, Salinas v. U.S., 522 U.S. 52, 118 S. Ct. 469, 139 L.
Ed. 2d 352, R.I.C.O. Bus. Disp. Guide (CCH) P 9382 (1997))).
U.S. v. Martino, 648 F.2d 367, 394–396, (5th Cir. 1981), on reconsideration in part, 650 F.2d 651 (5th Cir. 1981) and
on reh'g, 681 F.2d 952 (5th Cir. 1982), judgment aff'd, 464 U.S. 16, 104 S. Ct. 296, 78 L. Ed. 2d 17, R.I.C.O. Bus. Disp.
Guide (CCH) P 6100 (1983).
U.S. v. Zemek, 634 F.2d 1159, 1172 n.17, 7 Fed. R. Evid. Serv. 216 (9th Cir. 1980).
General Agreement to Commit Two Acts:

U.S. v. Adams, 759 F.2d 1099, 1116, 17 Fed. R. Evid. Serv. 1244 (3d Cir. 1985) (to be convicted of a RICO conspiracy,
defendant must agree only to the commission of predicate acts, and need not agree to commit personally those acts. The
dissent on petition for certiorari recognized the conflict in circuits on this issue).
U.S. v. Carter, 721 F.2d 1514, 1528–31, 84-2 U.S. Tax Cas. (CCH) P 9537, 14 Fed. R. Evid. Serv. 1613, 53 A.F.T.R.2d
84-1413 (11th Cir. 1984), vacated in part, 886 F.2d 304 (11th Cir. 1989) (Statutory language imposes no requirement that
the defendant must agree to participate in the conduct of an “enterprise's” affairs only by personally committing two
predicate acts. Imposing a requirement that in all cases, the government must prove the defendant agreed to personally
commit two predicate acts would severely limit the RICO conspiracy remedy provided by Congress. When an agreement
lacks the objective of a RICO conspiracy, that is violation of a substantive RICO provision, no “pattern of racketeering
activity” necessary for a RICO conspiracy is present unless the defendant supplies the lack by personally agreeing to
engage in a pattern of racketeering activity in furtherance of the conspiracy's single objective.).
U.S. v. Alonso, 740 F.2d 862, 871, 16 Fed. R. Evid. Serv. 265 (11th Cir. 1984).
U.S. v. Tille, 729 F.2d 615, 619, 15 Fed. R. Evid. Serv. 597 (9th Cir. 1984).
U.S. v. Neapolitan, 791 F.2d 489, 494–499, R.I.C.O. Bus. Disp. Guide (CCH) P 6274 (7th Cir. 1986) (holding modified
by, Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, R.I.C.O. Bus. Disp. Guide (CCH) P 9819 (7th Cir. 2000)))
(it is not necessary that defendant agree personally to commit two predicate acts).
U.S. v. Rastelli, 870 F.2d 822, 831–32, 130 L.R.R.M. (BNA) 2966, 111 Lab. Cas. (CCH) P 11078, 27 Fed. R. Evid. Serv.
860 (2d Cir. 1989) (A RICO conspiracy conviction can be based on an agreement to commit racketeering acts as an aider
and abettor.); Lentz v. Woolley, Exchange Act Release No. 89-0805, [1990 Transfer Binder] Fed. Sec. L. Rep. (CCH)
¶94,498 (June 12, 1989) (Conspiracy claim may be based on allegations of either an agreement to commit a substantive
RICO violation or an agreement to participate in the predicate acts).
Agreement to Personally Commit Two Acts:
52, 118 S. Ct. 469, 139 L. Ed. 2d 352, R.I.C.O. Bus. Disp. Guide (CCH) P 9382 (1997)).
U.S. v. Teitler, 802 F.2d 606, 611–12, R.I.C.O. Bus. Disp. Guide (CCH) P 6395 (2d Cir. 1986).
U.S. v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981) (abrogated by, Salinas v. U.S., 522 U.S. 52, 118 S. Ct. 469, 139 L. Ed.
2d 352, R.I.C.O. Bus. Disp. Guide (CCH) P 9382 (1997))) (adopting the government's understanding of Elliott which it
found instructive, the court held that a RICO conspiracy count must charge as a minimum that each defendant agreed
to commit two or more specified predicate crimes in addition to charging an agreement to participate in the conduct of
the “enterprise's” affairs through a “pattern of racketeering activity”).
U.S. v. Elliott, 571 F.2d 880, 903 (5th Cir. 1978).

U.S. v. Diecidue, 603 F.2d 535, 557, 4 Fed. R. Evid. Serv. 1294 (5th Cir. 1979).
U.S. v. Martino, 648 F.2d 367, 394–396, (5th Cir. 1981), on reconsideration in part, 650 F.2d 651 (5th Cir. 1981) and on
reh'g, 681 F.2d 952 (5th Cir. 1982), judgment aff'd, 464 U.S. 16, 104 S. Ct. 296, 78 L. Ed. 2d 17, R.I.C.O. Bus. Disp. Guide
(CCH) P 6100 (1983) (there are two agreements contained in a RICO conspiracy charge: an agreement to participate
and an agreement to commit at least two proscribed acts).
U.S. v. Zemek, 634 F.2d 1159, 1172, 7 Fed. R. Evid. Serv. 216 (9th Cir. 1980).
U.S. v. Melton, 689 F.2d 679, 683 (7th Cir. 1982).
Hecht v. Commerce Clearing House, Inc., 713 F. Supp. 72, 77, 4 I.E.R. Cas. (BNA) 814, R.I.C.O. Bus. Disp. Guide
(CCH) P 7193 (S.D. N.Y. 1989), judgment aff'd, 897 F.2d 21, 5 I.E.R. Cas. (BNA) 78, R.I.C.O. Bus. Disp. Guide (CCH)
P 7411, 100 A.L.R. Fed. 655 (2d Cir. 1990) (An agreement by each defendant to commit two predicate acts is necessary).
Reinfeld v. Riklis, 722 F. Supp. 1077, 1083, Fed. Sec. L. Rep. (CCH) P 94789, R.I.C.O. Bus. Disp. Guide (CCH) P 7336
(S.D. N.Y. 1989) (Personal agreement of each defendant to commit two or more predicate acts is required.).
Friedman v. Arizona World Nurseries Ltd. Partnership, 730 F. Supp. 521, 548, Fed. Sec. L. Rep. (CCH) P 94902,
R.I.C.O. Bus. Disp. Guide (CCH) P 7423 (S.D. N.Y. 1990), aff'd, 927 F.2d 594 (2d Cir. 1991) and aff'd, 927 F.2d 594
(2d Cir. 1991) and aff'd, 927 F.2d 594 (2d Cir. 1991) and aff'd, 927 F.2d 594 (2d Cir. 1991) and aff'd, 927 F.2d 594 (2d
Cir. 1991) (A defendant must personally agree to commit two or more predicate crimes.).

(“Overt Act”)
The government need not prove in a conspiracy case that any contemplated crime was actually committed. Instead, the
government must demonstrate that in addition to a personal agreement to commit two or more “racketeering” crimes,
some “overt act” was taken in furtherance of a conspiratorial agreement to commit a racketeering crime. In this case,
however, the government alleges that the “overt acts” were one and the same as the “racketeering” acts on which I
previously instructed you.

(“Unanimous Agreement”)

You are further instructed that you must unanimously agree concerning each defendant under consideration as to which
of the two predicate acts he is alleged to have personally agreed to commit. It would not be sufficient if some of the
jurors should find that a defendant agreed to commit two of the predicate acts while the remaining jurors found that
he agreed to commit two different offenses. You must all agree upon the same two predicate offenses in order to find
a defendant guilty of a RICO conspiracy.
U.S. v. Ruggiero, 726 F.2d 913, 921–923, 14 Fed. R. Evid. Serv. 1484 (2d Cir. 1984) (abrogated by, Salinas v. U.S., 522
U.S. 52, 118 S. Ct. 469, 139 L. Ed. 2d 352, R.I.C.O. Bus. Disp. Guide (CCH) P 9382 (1997))).
U.S. v. Ballard, 663 F.2d 534, 554 (5th Cir. 1981), reh'g denied and opinion modified, 680 F.2d 352 (5th Cir. 1982).

(“Withdrawal from Conspiracy”)
As you have been instructed, a conspiracy, like the one charged in this case, does not become a crime until three things
have occurred: first, the making of the agreement; second, a personal agreement to commit two or more predicate acts
of racketeering activity; and third, the performance of some “overt act” by one of the conspirators.
So, if a Defendant enters into a conspiracy agreement and personally agrees to commit two or more acts of racketeering
activity, but later changes his mind and withdraws from that agreement before anyone has committed an “overt act,” as
previously defined, then the crime was not complete at that time and the Defendant who withdrew cannot be convicted
—he would be not guilty of the alleged conspiracy offense.
In conjunction therewith, if a defendant enters into a conspiracy agreement but later changes his mind and withdraws
from that agreement before he has personally agreed to commit two or more predicate acts of racketeering activity, as
previously defined, then the crime was not complete at that time and the defendant who withdrew cannot be convicted
— he would not be guilty of the alleged conspiracy offense.
U.S. v. Riccobene, 709 F.2d 214, 221–222, 13 Fed. R. Evid. Serv. 564 (3d Cir. 1983).

(“Statute of Limitations”)
No criminal action shall be maintained unless brought within a specified period.
The commission of at least one overt act—in this case, one “racketeering” act—must have occurred within five years of
the date of the indictment. The indictment was filed on [Date of Indictment]. The statute of limitations must be satisfied
as to each defendant.
Hence, if you find that a defendant personally agreed to commit at least two predicate acts, but you further find that the
commission of the overt acts—in this case, “racketeering” acts—took place before [Date], then that defendant is not
guilty of RICO conspiracy. In that respect you must also remember that if there was more than one personal agreement
to commit the predicate acts, at least one of the overt acts—in this case, one “racketeering” act—must have occurred
after [Date], and within ten years of a prior overt act—in this case, racketeering act—of a prior personal agreement.
Accordingly, if the conspiracy terminated before [Date], then defendants would not be guilty of a RICO conspiracy.
U.S. v. Walsh, 700 F.2d 846, 851, 69 A.L.R. Fed. 233 (2d Cir. 1983).
U.S. v. Bethea, 672 F.2d 407, 419 (5th Cir. 1982).
U.S. v. Castellano, 610 F. Supp. 1359, 1381 (S.D. N.Y. 1985).
Grunewald v. U.S., 353 U.S. 391, 396–97, 77 S. Ct. 963, 969–70, 1 L. Ed. 2d 931, 57-1 U.S. Tax Cas. (CCH) P 9693, 51
A.F.T.R. (P-H) P 20, 62 A.L.R.2d 1344 (1957).
U.S. v. Davis, 533 F.2d 921, 926 (5th Cir. 1976).
U.S. v. Silverstein, 737 F.2d 864, 867, 15 Fed. R. Evid. Serv. 2015 (10th Cir. 1984).

(“Multiple Conspiracies”)
The government charges that the defendants formed themselves into an illegal group for purposes of committing
“racketeering” crimes. In RICO Count ___, this allegedly illegal group is called a “conspiracy.”
You may find from the evidence, however, that no such “conspiracy,” as alleged by the government, existed at all.
You also may find from the evidence that the defendants formed themselves into different groups—that is, different
“conspiracies”—than the conspiracy alleged in the indictment. If you find that no “conspiracy” existed at all, or that
there existed different “conspiracies” than the one alleged in the indictment, then you must find the defendants not guilty.

All of this is so because proof of several separate conspiracies is not proof of the single, overall RICO conspiracy
charged in the indictment. What you must do, therefore, is determine whether the single, overall conspiracy charged in
the indictment existed. If you find that no such single, overall conspiracy existed, then you must find the defendants
not guilty. In other words, to find a defendant guilty, you must find that he was a member of precisely the same
conspiracy charged in the indictment, and not some other, separate conspiracy. However, if you find that the single,
overall conspiracy existed, but that certain defendants were not members of that conspiracy, then you must find those
defendants not guilty.
To establish a single, overall conspiracy, the government must prove a single agreement to accomplish an overall objective
or goal. The government also must prove beyond a reasonable doubt that the nature of the illegal conspiracy was such
that each defendant must necessarily have known that others were participating in the same illegal scheme. On this point,
therefore, you must find a defendant not guilty unless the government proves that the defendant knew (1) that he was
directly involved in a conspiracy whose purpose was to profit from crime, (2) that he knew that the conspiracy was larger
than his own role in it, and (3) that others, unknown to him, were participating in the illegal scheme.
That is, the participants in a conspiracy must have known of the others' illegal activities and, indeed, must have joined
with one another in furtherance of the illegal activities. Each defendant must have realized that the conspiracy extended
beyond his individual role. Moreover, a defendant is not responsible for the acts of the others in the conspiracy that go
beyond the goals of the conspiracy as that defendant understands them.
The scope of a conspiracy is judged by five factors: (1) the time during which it existed; (2) the persons who participated
in the group; (3) the statutory offenses charged in the indictment; (4) the nature and scope of the allegedly illegal acts
that were committed; and (5) the locations where those events took place. Each of these factors must point toward a
single conspiracy. That is, there must be similarity of time, persons, places, offenses charged, and acts undertaken before
you could find that the alleged events are tied together into a single conspiracy.
For example, there are three different corporations that are defendants. The government charges that the three companies
and their employees formed one overall illegal conspiracy. If you find that each company and its employees acted illegally,
but that each company and its employees did so separately and apart from each other, then you must find the defendants
not guilty, because your findings would be different from the charges brought by the government.

92086 (1985).
U.S. v. Mitchell, 777 F.2d 248, 260 (5th Cir. 1985).
U.S. v. Nerone, 563 F.2d 836, 851–852 (7th Cir. 1977).

(“Proof of Acts”)
What the evidence in the case must show beyond a reasonable doubt is:
First: That the defendant was a “person” as defined in these instructions;
Second: That the defendant was “associated with” an “enterprise” as both terms are defined in these instructions;
Third: That the “enterprise” was engaged in, or that its activities affected, “interstate commerce”, as defined in these
instructions;
Fourth: That two or more persons, in some way or manner, came to a mutual understanding to try to accomplish a
common and unlawful plan, namely, to conduct the affairs of an illegal enterprise through a “pattern of racketeering
activity” as charged in the indictment; and
Fifth: That the Defendant knowingly and willfully became a member of such conspiracy;
Sixth: That at the time the Defendant knowingly and willfully agreed to join in such conspiracy, he did so with the
specific intent to personally participate in the commission of at least two “racketeering” acts, as elsewhere defined in
these instructions;
Seventh: That the two “racketeering” acts allegedly agreed to be committed by the defendant were connected with each
other by some common scheme, plan or motive so as to be a pattern of criminal activity and not merely a series of
separate isolated or disconnected acts;

Eighth: That the personal agreement to commit the predicate acts along with the commission of at least one overt act
must have occurred after [Date]. If there was more than one personal agreement to commit the predicate acts, at least
one of the agreements along with the commission of at least one overt act must have occurred after [Date], and within
ten years of the other personal agreement; and
Ninth: That some “overt act” was taken in furtherance of the conspiracy to commit a “racketeering” crime.
Pattern Jury Instruction

(“Forfeiture”)
If you convict any one of these defendants under RICO you must also decide whether those particular Defendants must
forfeit their money and property as part of their punishment. Anyone convicted under RICO may be required, as a part
of the penalty, to forfeit to the United States any interest he has acquired or maintained in violation of the law or any
property or property right of any kind affording a source of influence over the “enterprise”.
The term “forfeiture” means to be divested or deprived of the ownership of something as a penalty for the commission
of a crime.
You are instructed that, to be entitled to forfeiture, the Government must prove beyond a reasonable doubt:
First: That the money or proceeds or property sought to be forfeited constituted an interest acquired by the specified
Defendant, or Defendants, as charged; and
Second: That such interest was acquired by the Defendant in violation of RICO and as a result of the conduct of the
enterprise's affairs through the pattern of racketeering activity committed by such Defendant as charged in Count ___.
You are further instructed that all of the instructions previously given to you concerning your consideration of the
evidence, the credibility of believability of the witnesses, the Government's burden of proof beyond a reasonable doubt,
your duty to give separate and individual consideration to the case of each Defendant, your duty to deliberate together,
and the necessity of a unanimous verdict, will all continue to apply during your supplemental deliberations concerning
the forfeiture claims. The specific instructions I gave you earlier concerning Count ___ and the definitions of the terms
“enterprise” and “pattern of racketeering activity” also continue to apply.
With respect to these several claims of forfeiture, you will be provided a series of Special Verdict forms for your
convenience and use. You will note that there is a separate, special verdict form as to each separate item sought to be
forfeited.

(Explain Special Verdict Form)
You will take these verdict forms to the jury room and when you have reached unanimous agreement as to each claim
of forfeiture you will have your foreperson fill in, date and sign them and then return to the Courtroom.
Westlaw. © 2016 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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§ 13:31.Criminal jury instructions, 2 White Collar Crime § 13:31 (2d ed.

2 White Collar Crime § 13:31 (2d ed.)

White Collar Crime | July 2016 Update

§ 13:31. Criminal jury instructions

1. RICO Instruction No. 1 RICO — Substantive

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

35. RICO Instruction No. 35 Forfeiture

RICO INSTRUCTION NO. 1

RICO INSTRUCTION NO. 2

RICO INSTRUCTION NO. 3

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 2

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 3

Single Scheme Sufficient:

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 4

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 5

RICO INSTRUCTION NO. 4

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 6

1) That the defendants had a common purpose;

3) that the defendants had personnel who functioned as a continuing unit.

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 7

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 8

Proof of Existance of Enterprise:

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 9

U.S. v. Cauble, 706 F.2d 1322, 1340 (5th Cir. 1983).

U.S. v. Rone, 598 F.2d 564, 568–569 (9th Cir. 1979).

U.S. v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978).

U.S. v. Cauble, 706 F.2d 1322 (5th Cir. 1983).

RICO INSTRUCTION NO. 5

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 10

RICO INSTRUCTION NO. 6

U.S. v. Elliott, 571 F.2d 880, 903 (5th Cir. 1978).

U.S. v. Mazzei, 700 F.2d 85, 89–90 (2d Cir. 1983).

RICO INSTRUCTION NO. 7

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 11

Participation in Operation or Management:

RICO INSTRUCTION NO. 8

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 12

U.S. v. Dickens, 695 F.2d 765, 781 (3d Cir. 1982).

U.S. v. Rone, 598 F.2d 564, 573 (9th Cir. 1979).

U.S. v. Stratton, 649 F.2d 1066, 1075 (5th Cir. 1981).

U.S. v. Nerone, 563 F.2d 836 (7th Cir. 1977).

RICO INSTRUCTION NO. 9

RICO INSTRUCTION NO. 10

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 13

Pattern Jury Charges

RICO INSTRUCTION NO. 11

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 14

Third: That such items had a value in excess of $5,000.00; and

Fourth: That the Defendant acted knowingly and willfully.

Pattern Jury Instructions

RICO INSTRUCTION NO. 12

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 15

RICO INSTRUCTION NO. 13

Pattern Jury Instructions

RICO INSTRUCTION NO. 14

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 16

(“Other Racketeering Acts”)

RICO INSTRUCTION NO. 15

U.S. v. Cauble, 706 F.2d 1322, 1345 (5th Cir. 1983).

RICO INSTRUCTION NO. 16

No criminal action shall be maintained unless brought within a specified period.

U.S. v. Bethea, 672 F.2d 407, 419 (5th Cir. 1982).

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 17