United States v. Paul Bergrin

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-2204

___________

UNITED STATES OF AMERICA,

Appellant

v.

PAUL W. BERGRIN; YOLANDA JAUREGUI,

a/k/a Yolanda Bracero;

THOMAS MORAN;

ALEJANDRO BARRAZA-CASTRO,

a/k/a George; VICENTE ESTEVES,

a/k/a Vinny

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 09-cr-00369)

District Judge: Honorable William J. Martini

___________

Argued December 15, 2010

Before: RENDELL, JORDAN and HARDIMAN, Circuit

Judges.

(Filed: April 12, 2011)

Steven G. Sanders [Argued]

Mark E. Coyne

Zach Intrater

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102-0000

Attorneys for Appellant

Lawrence S. Lustberg [Argued]

Michael A. Baldassare

Joshua C. Gillette

Jennifer Mara

Gibbons

One Gateway Center

Newark, NJ 07102-5310

Attorneys for Defendant-Appellee Bergrin

Christopher D. Adams

Walder, Hayden & Brogan

5 Becker Farm Road

3rd Floor

Roseland, NJ 07068-0000

Attorney for Defendant-Appellee Jauregui

Anthony J. Iacullo

Iacullo, Martino & Marzella

247 Franklin Avenue

P.O. Box 110129

Nutley, NJ 07110-0000

Attorney for Defendant-Appellee Moran

David B. Glazer

Glazer & Luciano

2

19-21 West Mount Pleasant Avenue

Livingston, NJ 07039-0000

Attorney for Defendant-Appellee Barraza-Castro

John McGovern

2nd Floor

221 Washington Street

Newark, NJ 07102-0000

Attorney for Defendant-Appellee Esteves

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This case arises under the Racketeer Influenced and

Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c). The

Government appeals the District Court‘s order dismissing a

RICO indictment of attorney Paul W. Bergrin and his co-

defendants. Because the indictment adequately pleaded a

RICO violation, we will reverse and remand.

I

Bergrin is a high-profile defense attorney and former

federal prosecutor from New Jersey who now stands accused

of leading an extensive criminal enterprise from 2003 through

2009.

On November 10, 2009, a federal grand jury in

Newark, New Jersey returned a thirty-nine count superseding

indictment charging Bergrin and seven co-defendants with a

3

host of offenses, all allegedly connected through an

―association-in-fact‖ enterprise called the Bergrin Law

Enterprise (BLE or Enterprise). According to the indictment,

the BLE was comprised of five individuals—Paul Bergrin;

Yolanda Jauregui; Thomas Moran; Alejandro Barrazo-Castro;

and Vicente Esteves—and four corporations—the law firm

Pope, Bergrin & Verdesco, PA (PB&V); the Law Office of

Paul W. Bergrin, PC; Premium Realty Investment Corp., Inc.;

and Isabella‘s International Restaurant, Inc.1

The indictment alleged that Bergrin was the leader of

the BLE and played an instrumental role in all of the

Enterprise‘s six criminal schemes. His co-defendants‘

alleged roles differed by scheme, with each having significant

involvement in at least one scheme and little or no

involvement in others. The six alleged schemes, also listed as

―racketeering acts,‖ are summarized below:

1. Racketeering Act One: In 2003 and 2004,

Bergrin, as a partner in PB&V, represented a

client with the initials ―W.B.,‖ who was being

held on federal drug trafficking charges. W.B.

informed Bergrin during a private attorney-

client visit that ―K.D.M.‖ was the government‘s

key witness against him. Bergrin relayed that

information to W.B.‘s drug associates along

with his own message that if they killed

K.D.M., he could assure that W.B. escaped

prison, but if they did not, W.B. would spend

1

Three defendants named in the indictment—Alonso

Barraza-Castro, Jose Jiminez, and Sundiata Koontz—were

charged with individual substantive crimes, but were not

alleged to be part of the BLE.

4

the rest of his life in jail. Those associates

subsequently murdered K.D.M.

2. Racketeering Acts Two and Three: In 2008 and

2009, Bergrin, through his law firm, Law Office

of Paul W. Bergrin, PC, represented Esteves,

who was charged with federal drug crimes in

Monmouth County, New Jersey. ―Under the

guise of providing legitimate attorney services,‖

Enterprise members Bergrin, Jauregui, and

Moran assisted Esteves in arranging to have a

witness against him murdered. Members of the

BLE solicited a hitman to locate and kill the

witness, traveled to meetings with the hitman,

offered to assist the hitman in obtaining a gun,

instructed the hitman on how to commit the

murder, and then received $20,000 in cash for

their services to Esteves.

3. Racketeering Act Four: In 2009, Bergrin,

through his law firm, Law Office of Paul W.

Bergrin, PC, represented a client with the

initials ―R.J.,‖ who was charged with robbing

―M.P.‖ in Essex County, New Jersey.

Enterprise members Bergrin, Jauregui, and

Moran bribed and assisted in bribing M.P., who

was to testify for the government against R.J.

They did so by causing a third party, ―M.C.,‖ to

participate in telephone conversations with

M.P., after which they paid M.P. $3,000 in cash

to change his/her testimony.

4. Racketeering Acts Five, Six, and Seven: From

2005 to 2009, Bergrin, Jauregui, and Barraza-

5

Castro—along with several non-Enterprise

members—trafficked in kilogram quantities of

cocaine ―[u]nder the guise of conducting

legitimate business‖ at Law Office of Paul W.

Bergrin, PC, PB&V, Premium Realty

Investment Corp., Inc, and Isabella‘s

International Restaurant, Inc. As part of the

operation, a ―stash house‖ was maintained at

Isabella‘s in Newark.

5. Racketeering Acts Eight and Nine: In 2004 and

2005, Bergrin, through his law firms, Law

Office of Paul W. Bergrin, PC and PB&V,

represented a client with the initials ―J.I.,‖ who

ran a prostitution business in New York.

Bergrin helped J.I. evade New Jersey Parole

Board restrictions by telling the Board that J.I.

worked at the Law Office of Paul W. Bergrin,

PC. Bergrin also supported that claim with

false paychecks drawn on Premium Realty

Investment Corp., Inc. accounts. When J.I. was

arrested again, Bergrin took over the

prostitution business, but he too was caught and

charged in New York. Following Bergrin‘s

arrest for his role in the business, Jauregui

solicited M.C.—i.e., the ―third party‖ in

Scheme Three—to murder a witness against

Bergrin. Jauregui then supplied M.C. with

information about the witness and paid him/her

$10,000.

6. Racketeering Acts Ten, Eleven, Twelve, and

Thirteen: In 2005 and 2006, Bergrin and

Jauregui committed and assisted others in

6

committing wire fraud relating to the sale of

real estate properties to individuals they knew

to have fraudulently obtained mortgage loans.

They did so ―[u]nder the guise of conducting

[the] legitimate business‖ of the Law Office of

Paul W. Bergrin, PC and Premium Realty

Investment Corp., Inc. At least one of the

properties was owned by Bergrin and Jauregui

through Premium Realty. Bergrin and other

attorneys from the Law Office of Paul W.

Bergrin acted as closing attorneys on the

transactions.

The indictment also alleged the following seven purposes of

the Enterprise, which we quote in full:

a. providing The Bergrin Law

Enterprise and its leaders, members and

associates with an expanding base of clients for

legal and illegal services;

b. generating, preserving and

protecting The Bergrin Law Enterprise‘s profits

and client base through acts of, among other

things, witness tampering, murder, conspiracy

to commit murder, traveling in aid of

racketeering enterprises, bribery, drug

trafficking, prostitution, wire fraud, and money

laundering.

c. protecting and preserving

defendant PAUL BERGRIN‘s status as a

licensed attorney;

7

d. enhancing defendant PAUL

BERGRIN‘s reputation as a criminal defense

attorney;

e. promoting and enhancing The

Bergrin Law Enterprise and its leaders‘,

members‘ and associates‘ activities;

f. enriching the leaders, members,

and associates of The Bergrin Law Enterprise;

and

g. concealing and otherwise

protecting the criminal activities of The Bergrin

Law Enterprise and its members and associates

from detection and prosecution.

Bergrin, Jauregui, Moran, and Barazza-Castro were

each charged in Count One with violating RICO, 18 U.S.C.

§1962(c), and in Count Two with conspiring to violate RICO,

§ 1962(d).2 Bergrin, Jauregui, Moran, and Esteves were also

2

Section 1962(c) states:

It shall be unlawful for any person employed by

or associated with any enterprise engaged in, or

the activities of which affect, interstate or

foreign commerce, to conduct or participate,

directly or indirectly, in the conduct of such

enterprise‘s affairs through a pattern of

racketeering activity or collection of unlawful

debt.

8

charged in Count Three with the commission of violent

crimes in aid of racketeering (VICAR), 18 U.S.C. § 1959(a).3

Bergrin and his co-defendants moved to dismiss the

RICO and racketeering-based counts. On April 7, 2010, the

District Court heard oral argument on whether the

Government alleged in its indictment facts sufficient to

support RICO charges. Two weeks later, the District Court

granted the motions to dismiss Count One, finding that the

Section 1962(d) criminalizes ―conspir[ing] to violate

any of the provisions of subsection (a), (b), or (c) of

this [§ 1962].‖

3

The VICAR statute applies to anyone who:

as consideration for the receipt of, or as

consideration for a promise or agreement to

pay, anything of pecuniary value from an

enterprise engaged in racketeering activity, or

for the purpose of gaining entrance to or

maintaining or increasing position in an

enterprise engaged in racketeering activity,

murders, kidnaps, maims, assaults with a

dangerous weapon, commits assault resulting in

serious bodily injury upon, or threatens to

commit a crime of violence against any

individual in violation of the laws of any State

or the United States, or attempts or conspires so

to do.

18 U.S.C. § 1959(a).

9

indictment did not adequately allege a racketeering

―enterprise‖ or a ―pattern of racketeering activity.‖ United

States v. Bergrin, 707 F. Supp. 2d 503, 519 (D.N.J. 2010).

Because charges of conspiracy to violate RICO and VICAR

both require elements of an underlying RICO charge, Counts

Two and Three were dismissed as well. Id. The Government

filed this timely appeal.4

II

―[W]hen reviewing a motion to dismiss an indictment,

our standard of review is mixed, employing plenary or de

novo review over a district court‘s legal conclusions, and

reviewing any challenges to a district court‘s factual findings

for clear error.‖ United States v. Shenandoah, 595 F.3d 151,

156 (3d Cir. 2010) (citing United States v. Nolan-Cooper, 155

F.3d 221, 229 (3d Cir.1998)). ―A finding is clearly erroneous

when[,] although there is evidence to support it, the reviewing

[body] on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.‖ United States

v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (quoting Concrete

Pipes & Prods. of Cal., Inc. v. Constr. Laborers Pension

Trust for S. Cal., 508 U.S. 602, 622 (1993)) (internal

quotation marks omitted).

III

A

4

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231 because Bergrin and his co-defendants were

charged with violating ―offenses against the laws of the

United States.‖ We have jurisdiction over the District Court‘s

order dismissing the indictment pursuant to 18 U.S.C. § 3731.

10

We begin our analysis by setting forth the

requirements of a well-pleaded indictment and the rules

governing a district court‘s review of a motion to dismiss.

Federal Rule of Criminal Procedure 7(c)(1) requires an

indictment to ―be a plain, concise, and definite written

statement of the essential facts constituting the offense

charged.‖ The Supreme Court has explained that ―the Federal

Rules ‗were designed to eliminate technicalities in criminal

pleadings and are to be construed to secure simplicity in

procedure.‘ . . . While detailed allegations might well have

been required under common-law pleading rules, . . . they

surely are not contemplated by Rule 7(c)(1).‖ United States

v. Resendiz-Ponce, 549 U.S. 102, 110 (2007) (citations

omitted) (quoting United States v. Debrow, 346 U.S. 374, 376

(1953)). Likewise, we have held:

[A]n indictment [is] sufficient so long as it ―(1)

contains the elements of the offense intended to

be charged, (2) sufficiently apprises the

defendant of what he must be prepared to meet,

and (3) allows the defendant to show with

accuracy to what extent he may plead a former

acquittal or conviction in the event of a

subsequent prosecution.‖ United States v.

Vitillo, 490 F.3d 314 (3d Cir.2007) (internal

quotation marks omitted). Moreover, ―no

greater specificity than the statutory language is

required so long as there is sufficient factual

orientation to permit the defendant to prepare

his defense and to invoke double jeopardy in the

event of a subsequent prosecution.‖ United

States v. Rankin, 870 F.2d 109, 112 (3d

Cir.1989).

11

United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007).

To determine whether an indictment ―contains the

elements of the offense intended to be charged,‖ a district

court may look for more than a mere ―recit[ation] in general

terms [of] the essential elements of the offense.‖ United

States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002). A

district court must find that ―a charging document fails to

state an offense if the specific facts alleged in the charging

document fall beyond the scope of the relevant criminal

statute, as a matter of statutory interpretation.‖ Id.; see also

United States v. Schiff, 602 F.3d 152, 162–66 (3d Cir. 2010)

(indictment alleging ―failure to rectify misstatements of

others‖ does not, as a matter of law, state an offense under

securities statute that criminalizes omissions of information);

Gov’t of V.I. v. Greenidge, 600 F.2d 437, 438–40 (3d Cir.

1979) (indictment alleging assault on male companion of a

rape victim does not, as a matter of law, state an offense

under statute that criminalizes assaulting a rape victim).

A ruling on a motion to dismiss is not, however, ―a

permissible vehicle for addressing the sufficiency of the

government‘s evidence.‖ United States v. DeLaurentis, 230

F.3d 659, 660–61 (3d Cir. 2000) (citations omitted).

―Evidentiary questions‖—such as credibility determinations

and the weighing of proof—―should not be determined at

th[is] stage.‖ United States v. Gallagher, 602 F.2d 1139,

1142 (3d Cir. 1979). Rather, ―[i]n considering a defense

motion to dismiss an indictment, the district court [must]

accept[] as true the factual allegations set forth in the

indictment.‖ United States v. Besmajian, 910 F.2d 1153,

12

1154 (3d Cir. 1990) (citing Boyce Motor Lines v. United

States, 342 U.S. 337, 343 n.16 (1952)).

B

Having reviewed the legal principles governing

motions to dismiss indictments generally, we turn now to the

specific question of what a RICO indictment must allege

under 18 U.S.C. § 1962(c). In United States v. Irizarry, we

elaborated on the pleading requirements thusly:

To establish a § 1962(c) RICO violation, the

government must prove the following four

elements: ―(1) the existence of an enterprise

affecting interstate commerce; (2) that the

defendant was employed by or associated with

the enterprise; (3) that the defendant

participated . . ., either directly or indirectly, in

the conduct or the affairs of the enterprise; and

(4) that he or she participated through a pattern

of racketeering activity.‖

341 F.3d 273, 285 (3d Cir. 2003) (quoting United States v.

Console, 13 F.3d 641, 652-653 (3d Cir.1993)). We are also

guided in our application of § 1962(c) by statutes and

Supreme Court decisions that have more precisely defined the

many operative words and phrases in the RICO law,

including ―enterprise‖ and ―pattern of racketeering activity.‖

1

The United States Code defines an ―enterprise‖ as

―any individual, partnership, corporation, association, or other

legal entity, and any union or group of individuals associated

13

in fact although not a legal entity.‖ 18 U.S.C. § 1961(4).

According to the indictment in this case, the BLE was ―a

group of individuals and legal entities associated in fact.‖

The Supreme Court held in United States v. Turkette, 452

U.S. 576, 583 (1981)—and reaffirmed in Boyle v. United

States, 129 S. Ct. 2237, 2244 (2009)—that such an

―[association-in-fact] enterprise is an entity, for present

purposes a group of persons associated together for a

common purpose of engaging in a course of conduct,‖ and it

―is proved by evidence of an ongoing organization, formal or

informal, and by evidence that the various associates function

as a continuing unit. . . . separate and apart from the pattern of

activity in which it engages.‖ In Boyle, the Court added that

―an association-in-fact enterprise must have at least three

structural features: a purpose, relationships among those

associated with the enterprise, and longevity sufficient to

permit these associates to pursue the enterprise‘s purpose.‖

129 S. Ct. at 2244. The Court also listed a number of

structural elements that the government need not prove to

establish an ―enterprise‖:

[A]n association-in-fact enterprise . . . . need not

have a hierarchical structure or a ‗chain of

command‘; decisions may be made on an ad

hoc basis and by any number of methods-by

majority vote, consensus, a show of strength,

etc. Members of the group need not have fixed

roles; different members may perform different

roles at different times. The group need not

have a name, regular meetings, dues,

established rules and regulations, disciplinary

procedures, or induction or initiation

ceremonies. While the group must function as a

14

continuing unit and remain in existence long

enough to pursue a course of conduct, nothing

in RICO exempts an enterprise whose

associates engage in spurts of activity

punctuated by periods of quiescence. Nor is the

statute limited to groups whose crimes are

sophisticated, diverse, complex, or unique; for

example, a group that does nothing but engage

in extortion through old-fashioned,

unsophisticated, and brutal means may fall

squarely within the statute‘s reach.

Id. at 2245–46.5

In order to be ―employed by or associated with‖ a

RICO enterprise, a defendant must be a ―person‖ legally

distinct from the ―enterprise‖ with which the person is

employed or associated. Cedric Kushner Promotions, Ltd. v.

King, 533 U.S. 158, 161 (2001). The Supreme Court

recognized in Cedric Kushner Promotions that one person

and one wholly-owned entity can be distinct. 533 U.S. at 163

5

Long before Boyle, we held in United States v.

Riccobene that establishing an enterprise requires proof of an

―ongoing organization‖ with a ―superstructure or framework,‖

members who ―each . . . perform a role in the group

consistent with the organizational structure,‖ and ―an

existence beyond that which is necessary merely to commit

each of the acts charged as predicate racketeering offenses.‖

709 F.2d 214, 221-24 (3d Cir. 1983), overruled by Griffin v.

United States, 502 U.S. 46 (1991). To the extent that this

holding is inconsistent with Boyle, it is no longer good law.

But even if Riccobene were unaffected by Boyle, our decision

in this appeal would remain the same.

15

(―The corporate owner/employee, a natural person, is distinct

from the corporation itself, a legally different entity with

different rights and responsibilities due to its different legal

status. And we can find nothing in the statute that requires

more ‗separateness‘ than that. . . . [L]inguistically speaking,

the employee and the corporation are different ‗persons,‘ even

where the employee is the corporation‘s sole owner. After

all, incorporation‘s basic purpose is to create a distinct legal

entity, with legal rights, obligations, powers, and privileges

different from those of the natural individuals who created it,

who own it, or whom it employs.‖ (citations omitted)).

Courts have also recognized that an ―association-in-fact‖

enterprise can exist—and satisfy the ―distinctiveness‖

requirement—when it is comprised of members that are a

mixture of individual persons and ―entities that they control.‖

See, e.g., United States v. Masters, 924 F.2d 1362, 1366 (7th

Cir. 1991) (Posner, J.) (finding an ―enterprise‖ made up of a

lawyer, his law firm, two police officers, and their respective

police departments).

2

A ―pattern of racketeering activity‖ is defined as

―requir[ing] at least two acts of racketeering activity, one of

which occurred after the effective date of this chapter and the

last of which occurred within ten years . . . after the

commission of a prior act of racketeering activity.‖ 18 U.S.C.

§ 1961(5). It is the ―person‖ charged with the racketeering

offense—not the entire enterprise—who must engage in the

―pattern of racketeering activity.‖ See H.J., Inc. v. Nw. Bell

Tel. Co., 492 U.S. 229, 244 (1989).

―[T]o prove a pattern . . . a plaintiff or prosecutor must

show that the racketeering predicates are related, and that

16

they amount to or pose a threat of continued criminal

activity.‖ Id. at 239 (emphasis in original). ―Relatedness‖

can be shown through evidence that the criminal activities

―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.‖ Id. at 240 (quoting 18 U.S.C. § 3575(e)).

Crimes can be ―interrelated by [a] distinguishing

characteristic[]‖ when they are ―committed pursuant to the

orders of key members of the enterprise in furtherance of its

affairs.‖ United States v. Pungitore, 910 F.2d 1084, 1104 (3d

Cir. 1990). ―Continuity‖ includes ―both a closed- and open-

ended concept, referring either to a closed period of repeated

conduct, or to past conduct that by its nature projects into the

future with a threat of repetition.‖ H.J., Inc., 492 U.S. at 241.

―Closed-ended continuity‖ can be established ―by proving a

series of related predicates extending over a substantial period

of time.‖ Id. at 242. A finding of ―open-ended continuity,‖

on the other hand, ―depends on whether the threat of

continuity is demonstrated.‖ Id. (emphasis in original).

Although ―[f]or analytic purposes [relatedness and continuity]

. . . must be stated separately, . . . in practice their proof will

often overlap.‖ Id. at 239.

―Racketeering activity‖ is defined by 18 U.S.C.

§1961(1) to include dozens of crimes, including ―any act or

threat involving murder, . . . bribery, . . . or dealing in a

controlled substance,‖ as well as ―any act which is indictable

under . . . [18 U.S.C. §] 1343 (relating to wire fraud), . . . [18

U.S.C. §] 1512 (relating to tampering with a witness, victim,

or an informant), . . . [and 18 U.S.C. §] 1952 (relating to

racketeering).‖ In keeping with Congress‘s intent, the

Supreme Court has recognized that racketeering activities of

17

criminal enterprises are often quite diverse and can include

predicate offenses ranging from loan sharking and theft to

trafficking in illicit prescription drugs and counterfeiting

music albums. Turkette, 452 U.S. at 590 (―In view of the

purposes and goals of the Act, as well as the language of the

statute, we are unpersuaded that Congress nevertheless

confined the reach of the law to only narrow aspects of

organized crime . . . .‖ (citing Organized Crime Control Act

of 1970, Pub. L. No. 91-452, 84 Stat. 922, 947 and 116 Cong.

Rec. 592 (1970))). Because § 1961(1) casts such a wide net,

RICO‘s reach can be exceptionally broad.

3

We are also guided by the Supreme Court‘s expansive

interpretation of RICO. In numerous instances, the Court has

been asked to impose limits on how RICO may be applied,

and it has consistently declined to do so. Instead, the Court

has repeatedly pointed to RICO‘s legislative history and

§904(a) of the Organized Crime Control Act of 19706 as

evidence that Congress intended to create a broad and

powerful new statutory weapon for the federal government to

wield against individuals like Bergrin and organizations like

the BLE. See Boyle, 129 S. Ct. at 2244–47 (7-2 decision

rejecting limitation that ―enterprise‖ must have ―an

ascertainable structure beyond that inherent in the pattern of

racketeering activity in which it engages‖); Cedric Kushner

Promotions, 533 U.S. at 164–65 (unanimous decision

rejecting limitation that president and sole shareholder of a

company is not distinct ―person‖ from wholly-owned

6

84 Stat. at 947 (―The provisions of this Title shall be

liberally construed to effectuate its remedial purposes.‖).

18

company ―enterprise‖); Nat’l Org. for Women v. Scheidler,

510 U.S. 249, 256–62 (1994) (unanimous decision rejecting

limitation that ―enterprise‖ must have ―an economic motive‖);

Turkette, 452 U.S. at 586–87 (1981) (8-1 decision rejecting

limitation that ―enterprise‖ must be legitimate entity); see

also H.J., Inc., 492 U.S. at 248–49 (―Congress drafted RICO

broadly enough to encompass a wide range of criminal

activity, taking many different forms and likely to attract a

broad array of perpetrators operating in many different ways.

It would be counterproductive and a mismeasure of

congressional intent now to adopt a narrow construction . . . .

RICO may be a poorly drafted statute; but rewriting it is a job

for Congress, if it is so inclined, and not for this Court.‖);

Russello v. United States, 464 U.S. 16, 21 (1983) (―Congress

selected [the] general term [―interest‖ in § 1963(a)]

apparently because it was fully consistent with the pattern of

the RICO statute in utilizing terms and concepts of breadth.‖).

With these definitions and points of reference in mind,

we turn to the District Court‘s decision to dismiss the

indictment in this case.

C

Federal Rule of Criminal Procedure 12(b)(3)(B) allows

a district court to review the sufficiency of the government‘s

pleadings on ―a motion alleging a defect in the indictment.‖

The court is limited, however, in what it may consider during

this analysis. Its determination must be based on whether the

facts alleged in the indictment, if accepted as entirely true,

state the elements of an offense and could result in a guilty

verdict. DeLaurentis, 230 F.3d at 660–61 (―[A] pretrial

motion to dismiss an indictment is not a permissible vehicle

for addressing the sufficiency of the government‘s evidence. .

19

. . Federal Rule of Criminal Procedure 12(b)(2) [now

12(b)(3)(B)] authorizes dismissal of an indictment if its

allegations do not suffice to charge an offense, but such

dismissals may not be predicated upon the insufficiency of

the evidence to prove the indictment's charges.‖ (citations

omitted)). Generally speaking, it is a narrow, limited analysis

geared only towards ensuring that legally deficient charges do

not go to a jury.

The District Court dismissed the indictment of Bergrin

and his alleged co-conspirators based on its determination

that ―Count One . . . both fails to set forth a pattern of

racketeering and an enterprise.‖ Bergrin, 707 F. Supp. 2d at

519. Neither of these conclusions is correct; the indictment

adequately alleges all of the sub-elements required to

establish both a pattern of racketeering activity and an

enterprise, as well as all of the other elements of a RICO

offense.7

7

Although some of the sub-elements are not explicitly

discussed—for example, the indictment does not contain the

words ―closed or open-ended continuity‖—the facts alleged

are sufficiently numerous and detailed to ―apprise[] the

defendant of what he must be prepared to meet‖ and, if

proven, provide an ample basis for a guilty verdict. See

United States v. Elliott, 571 F.2d 880, 898 (5th Cir. 1978) (―A

jury is entitled to infer the existence of an enterprise on the

basis of largely or wholly circumstantial evidence.‖); cf.

Boyle, 129 S. Ct. at 2244 (―Although an association-in-fact

enterprise must have these structural features, it does not

follow that a district court must use the term ‗structure‘ in its

jury instructions.‖).

20

1

The indictment alleges that the BLE constituted a

RICO enterprise because it states this element of the charged

offense, is sufficiently specific both to advise the defense of

what it must be prepared to defend against and to allow

recognition of a double jeopardy problem in future cases, and

contains facts that fall within the scope of the RICO statute as

a matter of law.

According to the indictment, the BLE was an

―association-in-fact‖ of five individuals and four corporations

that met all of the sub-elements outlined in Turkette. The

indictment describes the BLE as a group of persons and

entities that associated and engaged in a course of conduct

(i.e., a pattern of racketeering activity) for several common

purposes (e.g., to make money, expand its client base, etc.)

and was an ―ongoing organization‖ (though an informal one)

comprised of associates who operated as a unit to provide

illicit services to Bergrin‘s clients and one another. The

indictment also alleges facts that satisfy the Boyle

requirements: purpose, relationships among the members

(though, again, relatively loose and informal), and longevity

sufficient to enable the BLE to pursue its goals of, inter alia,

making money and protecting its own members and criminal

schemes.

Similarly, there are sufficient facts in the indictment to

apprise the defense that the Government will seek to prove

that the BLE is a distinct entity, not merely a different name

for the individual RICO defendants. The Government alleges

that the individual defendants (i.e., the ―persons‖) worked

21

together and in conjunction with multiple corporations to

achieve long-term common goals, and thus each individual

defendant was merely a part of, not an alter ego of, the

―association-in-fact‖ enterprise. As the Supreme Court noted

in Cedric Kushner Promotions, ―[w]hether the Act seeks to

prevent a person from victimizing, say, a small business, . . .

or to prevent a person from using a corporation for criminal

purposes, . . . the person and the victim, or the person and the

tool, are different entities, not the same.‖ 533 U.S. at 162

(citations omitted). Although Cedric Kushner Promotions

dealt with the infiltration of legitimate businesses, not

―association-in-fact‖ enterprises, the principle remains the

same: if Bergrin and the other individual defendants are ―the

persons,‖ the BLE is adequately alleged to be ―the tool‖ that

Bergrin directed.

The allegations supporting the ―enterprise‖ element are

not negated by the fact that the BLE pursued various

predicate crimes. Rather, the BLE‘s versatility provides even

stronger evidence that it was an ongoing association formed

to pursue criminal objectives. See, e.g., Masters, 924 F.2d at

1366; (―The strongest evidence [of an enterprise] is the

handling of the problem of dealing with [the leader‘s cheating

wife]. When that problem arose, a loose-knit but effective

criminal organization was in place ready to respond

effectively by planning and carrying out a . . . crime that

would have been beyond the capacities of the individual

defendants acting either singly or without the aid of their

organizations.‖).

2

The indictment also alleges facts indicating that each

individual defendant engaged in at least two predicate acts,

22

which is the basis for the assertion that each engaged in a

―pattern of racketeering activity.‖8

First, it is undisputed that the indictment charges each

RICO defendant with committing at least two predicate acts

within the last ten years, thus certainly meeting the statutory

threshold set forth in § 1961(5).

Second, the ―relatedness‖ sub-element of H.J. Inc. is

satisfied because the indictment states that the predicate

crimes were all committed for ―the same or similar purposes,‖

e.g., ―promoting and enhancing the Bergrin Law Enterprise

and its leaders‘, members‘ and associates‘ activities;

enriching the leaders, members and associates of the Bergrin

Law Enterprise; and concealing and otherwise protecting the

criminal activities of the Bergrin Law Enterprise.‖

Furthermore, there are several ―distinguishing characteristics‖

that imply that the predicate crimes were ―not isolated

events.‖ Most notably, four of the six schemes involved the

performance of some kind of service for Bergrin‘s clients

(e.g., murdering witnesses against two clients, bribing a

8

The Supreme Court has recognized that the

government may use the same evidence to prove the pattern

of racketeering activity and the enterprise. Turkette, 452 U.S.

at 583; Boyle, 129 S. Ct. at 2246 n.5, 2247. At the motion to

dismiss stage, the District Court had to accept as true all

allegations in the indictment, regardless of its uncertainty as

to how the Government would prove those elements at trial.

The question is merely whether the indictment put the

defendants on notice as to the nature of the charges against

them, and whether the facts, if proven, are sufficient as a

matter of law for a jury to convict.

23

witness against another, and helping a fourth run an illicit

business).

Moreover, the indictment alleges both closed- and

open-ended continuity. Regarding the former, the predicate

offenses are alleged to have occurred over a ―closed period of

repeated conduct,‖ i.e., six years during which six criminal

schemes were executed. Several of the schemes themselves

occurred over a number of years and involved repeated

conduct (e.g., Scheme Four: a four-year drug trafficking

conspiracy, which involved three individuals, four companies,

and multiple predicate acts such as conspiracy to distribute

five kilograms or more of cocaine, distribution of 500 grams

or more of cocaine, and maintaining drug-involved premises).

As to the latter, the alleged number of schemes and the BLE‘s

apparent willingness to engage in criminal acts to aid

Bergrin‘s clients suggest that there is also a ―threat of

continui[ng]‖ criminal activity in the future.

As was the case with the ―enterprise‖ element, the fact

that the BLE‘s alleged schemes differed from one another

does not establish that, as a matter of law, there was no

pattern. Congress intended for RICO to apply to individuals

who, through involvement in an enterprise, commit any

combination of the many and diverse predicate acts, whether

the usual organized crime-type offenses (e.g., bribery,

extortion, gambling), more violent crimes (e.g., murder,

kidnapping), or more niche crimes (e.g., counterfeiting music

or trafficking in illicit prescription drugs). We are not alone

in agreeing with Judge Posner‘s observation that ―[a] criminal

enterprise is more, not less, dangerous if it is versatile,

flexible, diverse in its objectives and capabilities.‖ See

United States v. Eufrasio, 935 F.2d 553, 566 (3d Cir. 1991)

(quoting Masters, 924 F.2d at 1367); see also United States v.

24

Brandao, 539 F.3d 44, 55 (1st Cir. 2008); United States v.

Eppolito, 543 F.3d 25, 57 (2d Cir. 2008). In short, ―[t]he acts

of a criminal enterprise within the scope of the enterprise‘s

evolving objectives form pattern enough to satisfy the

requirements of the RICO statute.‖ Masters, 924 F.2d at

1367.

We have also noted that ―RICO‘s pattern requirement

ensures that separately performed, functionally diverse and

directly unrelated predicate acts and offenses will form a

pattern under RICO, as long as they all have been undertaken

in furtherance of one or another varied purposes of a common

organized crime enterprise,‖ Eufrasio, 935 F.2d at 566, as

was the case with the BLE. Based on the kinds of

commonalities listed in H.J., Inc.—e.g., common purpose and

direction from common leadership—we, as well as other

circuit courts of appeals, have found patterns of racketeering

activity in cases with equally (and in some cases, even more)

disparate predicate crimes. See, e.g., id. (―The murder

conspiracy predicate was, for purposes of the pattern

requirement, legally related to the gambling and extortion

predicates, and they to each other, because all were

undertaken to further varied and diverse Scarfo enterprise

purposes, namely, to control, manage, finance, supervise,

participate in and set policy concerning the making of money

through illegal means. Each charged predicate was related

one to the other also because each was carried out by Idone or

members of his crew, pursuant to orders of ‗key members of

the enterprise‘, either Idone or Scarfo.‖); Masters, 924 F.2d at

1366–67 (finding pattern when defendants participated in

kickback scheme between police departments and a law firm,

bribery of police to ignore illegal gambling activity, and a

conspiracy to commit and cover up the murder of one

25

enterprise member‘s cheating wife); Elliott, 571 F.2d at 884–

95 (finding a pattern when predicate acts included arson,

counterfeiting titles to stolen cars, stealing Hormel meat

products, attempting to influence the outcome of ―the stolen

meat trial,‖ stealing Swift meat and dairy products, stealing a

forklift and ditchwitch, stealing ―Career Club‖ shirts,

engaging in illegal drug transactions, and plotting to steal

fungicide).

D

Because the indictment in this case alleged facts

sufficient to charge Bergrin and his co-defendants with RICO

violations, it should have survived a motion to dismiss, and

the District Court erred in finding to the contrary.

1

In our view, the District Court‘s principal error was its

failure to accept as true all of the facts alleged in the

indictment. The District Court treated Panarella—which

calls for courts to determine whether ―the specific facts

alleged in the charging document fall beyond the scope of the

relevant criminal statute, as a matter of statutory

interpretation,‖ 277 F.3d at 685 (emphasis added)—as though

it allows inquiry into what the Government will be able to

prove at trial. Such factfinding is impermissible at the motion

to dismiss stage. Id. at 681 (―For purposes of determining the

sufficiency of the superseding information, we assume the

truth of the . . . facts alleged.‖); Console, 13 F.3d at 650 (―The

existence vel non of a RICO enterprise is a question of fact

for the jury.‖).

26

In granting Appellees‘ motions to dismiss, the District

Court relied in part on findings that the indictment failed to

allege a common purpose or other commonality among the

predicate acts.9 On these points, the Court openly weighed

the evidence and questioned the Government‘s ability prove

that all of the purported members of the enterprise shared the

alleged common purposes. The Court began by asserting

that, ―[a]lthough the Government attempts to tie together the

disparate predicates by arguing that they each furthered the

‗principal goals of the enterprise,‘ . . . the purposes offered in

the Indictment undermine the assertion that the RICO persons

share any such common objectives.‖ Bergrin, 707 F. Supp.

2d at 512. The Court then listed four alleged purposes and

concluded:

Given these alleged objectives, it strikes the

Court that each pertains to Paul Bergrin

individually as an attorney. . . . The

enhancement of Bergrin‘s reputation and the

preservation of his law license are clearly of

unique importance to Bergrin himself, as is the

expansion of his law firm‘s client base. . . . [I]t

strains credulity to argue, for example, that

Alejandro Barraza-Castro, an alleged drug

dealer, shared the aforementioned purposes

regarding Bergrin‘s law license and his client

base.

9

This finding is especially problematic because, as

discussed in Part III.B., supra, evidence of a common purpose

can be used to prove both a ―pattern of racketeering activity‖

and an ―enterprise.‖

27

Id. at 513 (emphasis added).10 On its face, the indictment

contradicts the District Court‘s findings. The indictment

avers seven (not four) common purposes, all of which cohere

in light of the Government‘s allegation that all the members

of the BLE benefited from Bergrin‘s status as a licensed

attorney because ―the special privileges granted to licensed

attorneys‖ allowed them ―to engage in and assist Client

Criminals to engage in criminal activities.‖ BLE members

also, according to the indictment, shared the common purpose

of ―enriching the leaders, members and associates of The

Bergrin Law Enterprise; and concealing and otherwise

protecting the criminal activities of The Bergrin Law

Enterprise and its members and associates from detection and

prosecution.‖ Moreover, the indictment alleges that certain

entities (i.e., PB&V and the Law Office of Paul W. Bergrin,

PC) were used to commit the predicate acts. It also states,

though admittedly without much elaboration, that the

10

Similar examples can be found throughout the

opinion. For instance, the Court lists the six schemes and the

individuals accused of being involved in their commission,

making no mention of the corporations also allegedly

involved, and then concludes: ―[T]his panoply of criminal

activity has but one common denominator, Paul Bergrin . . . .

[T]he Indictment‘s failure to set forth similar or common

purposes, victims, manners of commission, or otherwise

distinguishing characteristics relating these predicates

warrants dismissal.‖ Bergrin, 707 F. Supp. 2d at 512. Again,

without mentioning the common purposes or entities

involved, the Court refers to the Kemo murder case (Scheme

One), stating: ―This case shares nothing in common with the

other schemes, save for the presence of Paul Bergrin.‖ Id.

28

predicate acts were committed ―[u]nder the guise of providing

legitimate attorney services.‖

The District Court also opined that ―[t]here is no core

group alleged, other than Paul Bergrin himself,‖ id. at 516,

and that ―‗The Bergrin Law Enterprise‘ as pled is essentially

Paul Bergrin, the licensed attorney, by another name,‖ id. at

518.11 These findings cannot be squared with the indictment,

which identifies a number of BLE members, any combination

of which a jury could find were the ―core group.‖12

Moreover, the notion that the BLE ―is essentially Paul

Bergrin‖ cannot be reconciled with the indictment‘s

allegations that other individuals and entities joined together

to form an ―association-in-fact‖ enterprise—i.e., a ―union or

group of individuals associated in fact although not a legal

entity.‖ 18 U.S.C. § 1961(4). Whether a jury will find that

such an enterprise existed is an open question, but as a matter

of law, the Government pleaded facts sufficient to support

such a finding. The District Court was obliged to accept as

those allegations as true.

11

See also id. at 517 (―[L]ooking at the schemes

alleged in the Indictment by date and by defendant, the facts

belie any assertion that an enterprise existed before, during, or

after [The BLE‘s alleged] growth and diversification.‖).

12

Although reasonable minds might differ as to

whether Moran or Isabella‘s International Restaurant were

―core‖ members, the indictment alleges that Bergrin and one

of his law firms were involved in every racketeering act, and

that Jauregui joined in four of the six schemes.

29

2

In addition to making impermissible factual findings,

the District Court also penalized the Government for failing

to allege facts that are unrelated to any required element of a

RICO offense. For example, the Court suggested that, to

constitute a ―pattern,‖ the predicate acts must be similar in

ways not actually required by the statute or judicial precedent

(e.g., that there must be similar methods employed or some

temporal proximity linking the predicate acts).13 The Court

also suggested that proving the existence of a distinct RICO

enterprise requires the Government to show that the

enterprise‘s goals do not primarily benefit one specific

member and that its operations do not too heavily rely on the

skill or status of one specific member.14 Lastly, the Court

13

See, e.g., Bergrin, 707 F. Supp. 2d at 512 (―[I]t is

clear from the nature of the allegations that the Kemo murder

case shares little, if anything, in common with the methods

allegedly employed in the commission of the other predicates.

. . . [I]t is evident on the face of these schemes that they lack

any similarity in method.‖); Id. at 513(―[T]he Indictment as

pled offers a series of disconnected street crimes and white

collar frauds carried out using divergent methods for distinct

purposes at different times as the RICO ‗pattern.‘‖); Id. at 516

(―There is no common criminal conduct; instead, the acts

alleged range from prostitution to murder to mortgage fraud

without any apparent overlap or coordination, again other

than the presence of Paul Bergrin, over different periods of

time.‖).

14

See, e.g., id. at 515 (―Each of the seven purposes

pled in ¶ 7 of the Indictment inure to the benefit of Paul

30

opined that a RICO enterprise must have structure, defined

leadership, organization, and history comparable to more

traditional organized crime-type enterprises (e.g., La Cosa

Nostra).15

These factual averments are not required to prove a

RICO case. See supra Part III.B. Indeed, the Supreme Court

Bergrin, as discussed above with regard to the pattern of

racketeering.‖); Id. at 518 (―Through its focus on the misuse

of legal services, the Government ties this enterprise together

through Bergrin‘s status as an attorney. ‗The Bergrin Law

Enterprise‘ therefore is simply Paul W. Bergrin, Esq., without

whom, as the Indictment states, none of the criminal schemes

would be possible.‖).

15

See, e.g., id. at 515 (―No structure, or at best a

minimal structure, is pled in the instant Indictment with

regard to ‗The Bergrin Law Enterprise.‘ Instead, the

Government attempts to graft an enterprise onto the actions of

Defendant Bergrin by alleging that he led ‗The Bergrin Law

Enterprise.‘ . . . The Indictment, however does not describe

what this leadership entailed. Except for the labeling of

Bergrin as the ‗leader,‘ there is no discussion of the roles of

the other associates, other than their commission of illegal

acts. . . . This pleading stands in stark contrast to the typical

form of a RICO Indictment. In an organized crime or union

corruption RICO Indictment, for example, there is often a

lengthy discussion of each associate‘s role in the enterprise

and how the enterprise came to be. . . . There is no such

pleading as to the history of the enterprise or the role of its

members‘ roles here.‖ (citations omitted)).

31

in H.J., Inc. used a disjunctive list when explaining what

constitutes evidence of a ―pattern of racketeering activity‖:

―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.‖ 492 U.S. at 240 (emphasis added) (citation

omitted). The ―methods employed‖ need not be similar; in

fact, it is hard to imagine how they could be similar in cases

where the predicate acts themselves are fundamentally

different (e.g., extortion, drug trafficking, gambling, murder,

and counterfeiting music albums). Boyle also makes clear

that there need not be a rigid temporal relationship among

predicate acts. 129 S.Ct. at 2245 (―While the group must

function as a continuing unit and remain in existence long

enough to pursue a course of conduct, nothing in RICO

exempts an enterprise whose associates engage in spurts of

activity punctuated by periods of quiescence.‖). Neither the

District Court nor the Appellees cite any authority that stands

for the proposition that there is no ―enterprise‖ if an

association-in-fact forms for purposes that primarily benefit

one member or operates with total dependence on one

member. Finally, the Supreme Court has repeatedly, and

most explicitly in Boyle, rejected the notion that a RICO

enterprise must have the type of structure, defined leadership,

organization, or history generally associated with traditional

organized crime associations. Id. at 2245–46; see also H.J.,

Inc., 492 U.S. at 243–44 (―[Continuous] associations include,

but extend well beyond, those traditionally grouped under the

phrase ‗organized crime.‘ . . . [T]he argument for reading an

organized crime limitation into RICO‘s pattern concept,

whatever the merits and demerits of such a limitation as an

initial legislative matter, finds no support in the Act‘s text and

is at odds with the tenor of its legislative history.‖).

32

3

Throughout its opinion, the District Court raised

equitable or logistical concerns. Because these concerns are

either endemic to RICO prosecutions or involve the

application of irrelevant legal standards, it was improper for

the Court to dismiss the indictment for any of these reasons.

On several occasions, the District Court alludes to

RICO‘s broad scope and the potential for the law to be

misapplied so as to unfairly try and punish common criminals

and conspirators who were not the original targets of the

law.16 If we were writing on a blank slate circa 1971, the

District Court‘s concerns might carry the day. In the forty

years since RICO was enacted, however, much has been

written on the proverbial slate. The Supreme Court has

unwaveringly disagreed with the District Court‘s sincere

16

See, e.g., Bergrin, 707 F. Supp. 2d at 511 (―[T]he

Government admitted that the acts would be prejudicially

joined under Rule 14(a). . . . These admissions speak volumes

as to the disparate nature of the substantive crimes that, in

effect, also serve as the racketeering predicates. While the

Government maintains that these wide-ranging crimes

nonetheless fall within the ambit of a RICO pattern, to hold as

much would be to condone the precise type of overreaching

that courts and commentators have warned against since the

enactment of RICO.‖); Id. at 516 n.15 (finding that if ―the

common purpose of the enterprise is to break the law and the

course of conduct is committing illegal acts . . . . [RICO]

would convert any garden variety criminal conspiracy into a

RICO enterprise, which would be true neither to the letter nor

the spirit of the RICO statute‖).

33

policy concern and we must do likewise. As we have noted,

the Supreme Court has repeatedly reaffirmed that RICO is a

powerful weapon that significantly alters the way trials are

conducted in cases that involve racketeering acts committed

by members of an enterprise. Most recently, the Court in

Boyle stated:

Because the statutory language is clear, there is

no need to reach petitioner‘s remaining

arguments based on statutory purpose,

legislative history, or the rule of lenity. In prior

cases, we have rejected similar arguments in

favor of the clear but expansive text of the

statute. See National Organization for Women,

510 U.S., at 262, 114 S.Ct. 798 (―The fact that

RICO has been applied in situations not

expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates

breadth‖ (quoting Sedima, 473 U.S. at 499, 105

S.Ct. 3275, brackets and internal quotation

marks omitted)); see also Turkette, 452 U.S. at

589-591, 101 S.Ct. 2524. ―We have repeatedly

refused to adopt narrowing constructions of

RICO in order to make it conform to a

preconceived notion of what Congress intended

to proscribe.‖ Bridge v. Phoenix Bond &

Indemnity Co., 553 U.S. ----, ----, 128 S.Ct.

2131, 2145, 170 L.Ed.2d 1012 (2008).

129 S. Ct. at 2246–47. During oral argument in Boyle, the

petitioner argued that too broad a reading of RICO amounts

to ―overreaching‖ because it results in a conflation of

conspiracy and enterprise: ―[C]onspirators are liable for the

acts of their co-conspirators, which is the Pinkerton doctrine

34

which collapses 1962(c) into a general conspiracy statute, if

you are going to define an enterprise principally by virtue of

its common purpose.‖ Oral Argument at 58:13, Boyle v.

United States, 129 S.Ct. 2237 (No. 07-1309), available at

http://www.oyez.org/cases/2000-

2009/2008/2008_07_1309/argument. The Supreme Court, in

keeping with its broad understanding of RICO, brushed this

concern aside. Boyle, 129 S. Ct. at 2246 (―Under § 371, a

conspiracy is an inchoate crime that may be completed in the

brief period needed for the formation of the agreement and

the commission of a single overt act in furtherance of the

conspiracy. Section 1962(c) demands much more: the

creation of an enterprise‘-a group with a common purpose

and course of conduct-and the actual commission of a pattern

of predicate offenses.‖ (citation omitted)). In the final

analysis, irrespective of any logical or theoretical appeal to

the District Court‘s concerns, they have been soundly rejected

by the Supreme Court.

The District Court also was concerned about the

difficulties of managing a complex multi-defendant, multi-

count criminal trial.17 Again, although this is an

17

Bergrin, 707 F. Supp. 2d at 511 n.10 (―The

differences between these RICO predicates are not merely a

pleading concern. Thinking through the practicalities of trial,

it concerns the Court that evidence of these different alleged

criminal acts likely would pose evidentiary problems. . . .

[T]he spillover prejudice from the introduction of each

witness murder case [sic] in a trial of the other would give the

Court serious pause. Beyond this, the Government would

introduce its mortgage fraud case and prostitution cases

during the same megatrial. The many and complex limiting

35

understandable concern for a trial judge, the fear that

―complex limiting instructions . . . would confound the

Court‖ is distinct from the question of whether an indictment

alleges all of the elements of a crime.

Finally, the District Court analogized RICO to a more

familiar legal framework by discussing how the various

predicates would be analyzed under joinder and severance

standards if they were tried as stand-alone offenses.18 The

Court again had a rational reason for discussing joinder and

severance under Rules 8 and 14 of the Federal Rules of

Criminal Procedure. The Government‘s indictment was

somewhat unwieldy, charging all of the RICO and non-RICO

instructions that would have to be employed as to the counts

and defendants would confound the Court, let alone the

jurors.‖).

18

See, e.g., Bergrin, 707 F. Supp. 2d at 510–11

(―There is little on the face of the Indictment demonstrating

relatedness among the varied white collar frauds and street

crimes offered by the Government as RICO predicates. The

Government even conceded as much during oral argument,

admitting that these disparate acts could not be joined but for

the allegation of a RICO enterprise. . . . [T]he Government

admitted that the acts would be prejudicially joined under

Rule 14(a). . . . These admissions speak volumes as to the

disparate nature of the substantive crimes that, in effect, also

serve as the racketeering predicates.‖); Id. at 516–17 (―[T]he

predicate acts themselves are so disparate in type and method

that the Government conceded that they could not be properly

joined under Rule 8(b) absent a RICO count.‖).

36

defendants with all of the RICO counts and underlying

substantive crimes. Faced with a handful of motions to sever,

the Court needed to analyze these rules. The misstep that the

Court made, however, is that it did not merely assess whether

the RICO counts and defendants could be tried along with the

non-RICO counts and defendants. Instead, it determined that

the predicate crimes underlying the RICO counts could not all

be joined in one trial without a RICO charge binding them

together, and from that, it extrapolated that the predicates

cannot establish a ―pattern of racketeering activity.‖ In this

case, however, there was a RICO count, and the Supreme

Court has interpreted ―pattern‖ such that it requires only

―relationship and continuity,‖ broadly construed. H.J., Inc.,

492 U.S. at 239. There is no support in H.J., Inc. or

elsewhere for the notion that the individual predicates crimes

must all be joinable in one trial, and it was therefore improper

for the District Court to consider such an inapplicable

standard as part of its analysis of the alleged ―pattern.‖19

III

For all the foregoing reasons, we hold that the District

Court erred in dismissing the RICO and RICO-based counts.

Accordingly, we will reverse the judgment of the District

19

Cf. Eufrasio, 935 F.2d at 567 (―Rule 8(b) . . . .

permits joinder of defendants charged with participating in

the same racketeering enterprise or conspiracy, even when

different defendants are charged with different acts, so long

as indictments indicate all the acts charged against each

joined defendant . . . are charged as racketeering predicates or

as acts undertaken in furtherance of, or in association with, a

commonly charged RICO enterprise of conspiracy.‖).

37

Court and remand the case for further proceedings consistent

with this opinion.

38