RICO Jury Instructions: Racketeering Enterprise & Activity Elements 8.152-54 - Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit

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MANUAL OF

MODEL CRIMINAL

JURY INSTRUCTIONS

FOR THE

DISTRICT COURTS OF THE

NINTH CIRCUIT

Prepared by the Ninth Circuit

Jury Instructions Committee

_________

2010 Edition



8.152 RACKETEERING ENTERPRISE—ENTERPRISE

AFFECTING INTERSTATE COMMERCE—DEFINED

(18 U.S.C. § 1959)

With respect to the first element in Instruction _______ [insert cross reference to

pertinent instruction, e.g., Instruction 8.151], the government must prove that an “enterprise”existed that was engaged in or had an effect on interstate commerce. An enterprise is a group of

people who have associated together for a common purpose of engaging in a course of conduct

over a period of time. This group of people, in addition to having a common purpose, must have

an ongoing organization, either formal or informal. The personnel of the enterprise, however,

may change and need not be associated with the enterprise for the entire period alleged in the

indictment. This group of people does not have to be a legally recognized entity, such as a

partnership or corporation. This group may be organized for a legitimate and lawful purpose, or

it may be organized for an unlawful purpose. [The name of the organization itself is not an

element of the offense and does not have to be proved.]

Therefore, the government must prove beyond a reasonable doubt that this was a group of people (1) associated for a common purpose of engaging in a course of conduct; (2) that the

association of these people was an ongoing formal or informal organization, and (3) the group

was engaged in or had an effect upon interstate or foreign commerce. The government need not

prove that the enterprise had any particular organizational structure.

Interstate commerce includes the movement of goods, services, money and individuals

between states. These goods can be legal or illegal. Only a minimal effect on commerce is

required and the effect need only be probable or potential, not actual. It is not necessary to prove

that the defendant’s own acts affected interstate commerce as long as the enterprise’s acts had

such effect.

Comment

Use this instruction in conjunction with Instructions 8.151 (Violent Crime in Aid of

Racketeering Enterprise), 8.153 (Racketeering Activity—Defined), and 8.154 (Racketeering

Enterprise—Proof of Purpose).

Definitions of “enterprise” are found in 18 U.S.C. §§ 1959(b)(2) and 1961(4). See also

United States v. Turkette, 452 U.S. 576, 583 (1981); Odom v. Microsoft Corp., 486 F.3d 541,

550-52 (9th Cir.2000); United Energy Owners Committee, Inc. v. United States Energy

Management System, Inc., 837 F.2d 356, 362 (9th Cir.1988).

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8.153 RACKETEERING ACTIVITY—DEFINED

(18 U.S.C. § 1959)

With respect to the second element in Instruction _______ [insert cross reference to

pertinent instruction, e.g. Instruction 8.151], the government must prove that the enterprise was

engaged in racketeering activity. “Racketeering activity” means the commission of certaincrimes. These include [insert applicable statutory definitions of state or federal crimes at issue

as listed in 18 U.S.C. § 1961.]

The government must prove beyond a reasonable doubt that the enterprise was engaged in

[at least one of] the crime[s] named above.

Comment


Racketeering Enterprise), 8.152 (Racketeering Enterprise—Enterprise Affecting Interstate

Commerce—Defined), and 8.154 (Racketeering Enterprise—Proof of Purpose).

For a definition of “racketeering activity,” see 18 U.S.C. § 1959(b)(1), which states that

term has the meaning set forth in 18 U.S.C. § 1961(1). See also United States v. Banks, 514 F.3d

959, 968 (9th Cir.2008).

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8.154 RACKETEERING ENTERPRISE—PROOF OF PURPOSE

(18 U.S.C. § 1959)

With respect to the fourth element in Instruction _______ [insert cross reference to

pertinent instruction, e.g. Instruction 8.151], the government must prove beyond a reasonable

doubt that the defendant’s purpose was to gain entrance to, or to maintain, or to increase [his][her] position in the enterprise.

It is not necessary for the government to prove that this motive was the sole purpose, or

even the primary purpose of the defendant in committing the charged crime. You need only find

that enhancing [his] [her] status in [name of enterprise] was a substantial purpose of the

defendant or that [he] [she] committed the charged crime as an integral aspect of membership in

[name of enterprise].

In determining the defendant’s purpose in committing the alleged crime, you must

determine what [he] [she] had in mind. Since you cannot look into a person’s mind, you have to

determine purpose by considering all the facts and circumstances before you.

Comment


Racketeering Enterprise), Instructions 8.152 (Racketeering Enterprise—Enterprise Affecting

Interstate Commerce—Defined), and 8.153 (Racketeering Activity—Defined). See Comment to

Instruction 8.151. If the fourth element of Instruction 8.151 is modified, this instruction should

also be modified.

“[T]he purpose element is met if ‘the jury could properly infer that the defendant

committed his violent crime because he knew it was expected of him by reason of hismembership in the enterprise or that he committed it in furtherance of that membership.’”

United States v. Banks, 514 F.3d 959, 965 (9th Cir.2008) (quoting United States v. Pimentel , 346

F.3d 285, 295-96 (2d Cir.2003)).

“VICAR’s purpose element is satisfied even if the maintenance or enhancement of his

position in the criminal enterprise was not the defendant’s sole or principal purpose.” Banks, 514

F.3d at 965. The law, however, requires a defendant’s purpose be “more than merely incidental.”

Id. at 969. Although the gang or racketeering enterprise purpose does not have to be “the only

purpose or the main purpose” of a murder or assault, it does have to be a substantial purpose. Id.

at 970 “Murder while a gang member is not necessarily a murder for the purpose of maintaining

or increasing position in a gang, even if it would have the effect of maintaining or increasing

position in a gang.” Id.

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Documents

RICO Jury Instructions: Racketeering Enterprise & Activity Elements 8.152-54 - Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit