RICO: A Sketch
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RICO: A Sketch
Updated August 22, 2025
Congressional Research Service
https://crsreports.congress.gov
96-950
RICO: A Sketch
Summary
Congress enacted the federal Racketeer Influenced and Corrupt Organization (RICO) provisions
as part of the Organized Crime Control Act of 1970. Despite its name and origin, RICO is not
limited to “mobsters” or members of “organized crime” as those terms are popularly understood.
Rather, it covers those activities that Congress felt characterized the conduct of organized crime,
no matter who actually engages in them.
RICO proscribes no conduct that is not otherwise criminal. Instead, under certain circumstances,
it enlarges the civil and criminal consequences of a list of state and federal crimes.
In simple terms, RICO condemns
(1) any person
(2) who
(a) uses for or invests in, or
(b) acquires or maintains an interest in, or
(c) conducts or participates in the affairs of, or
(d) conspires to invest in, acquire, or conduct the affairs of
(3) an enterprise
(4) which
(a) engages in, or
(b) whose activities affect, interstate or foreign commerce
(5) through
(a) the collection of an unlawful debt, or
(b) the patterned commission of various state and federal crimes.
Violations are punishable by (1) the forfeiture of any property acquired through a RICO violation
and of any property interest in the enterprise involved in the violation; (2) imprisonment for not
more than twenty years, or for life if one of the predicate offenses carries such a penalty; and/or
(3) a fine of not more than the greater of twice the amount of gain or loss associated with the
offense or $250,000 for individuals ($500,000 for organizations). RICO has generally survived
constitutional challenges, although its forfeiture provisions are potentially constrained by the
Excessive Fines Clause and perhaps a cruel and unusual punishment disproportionality analysis.
RICO violations also subject the offender to civil liability. The courts may award anyone whose
business or property is injured by a RICO violation treble damages, costs and attorneys’ fees, and
may enjoin RICO violations, order divestiture, dissolution or reorganization, or restrict an
offender’s future professional or investment activities. RICO’s civil provisions have been often
criticized and, at one time, commentators urged Congress to revise them. Congress found little
consensus on the questions raised by proposed revisions, however, and the issue seems to have
been put aside at least for the time being.
The text of the RICO sections, citations to state RICO statutes, and a selected bibliography are
appended.
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RICO: A Sketch
Contents
I. Introduction .................................................................................................................................. 1
II. A Closer Look at the Elements ................................................................................................... 3
A. Any person............................................................................................................................ 3
B. Conduct ................................................................................................................................ 4
1. Invest or Use ................................................................................................................... 4
2. Acquire or Maintain ........................................................................................................ 5
3. Conduct of Affairs........................................................................................................... 6
4. Conspiracy ...................................................................................................................... 7
C. Pattern of Racketeering Activity........................................................................................... 9
1. Predicate Offenses .......................................................................................................... 9
2. Pattern ........................................................................................................................... 13
D. Collection of an Unlawful Debt ......................................................................................... 15
E. Enterprise in or Affecting Interstate or Foreign Commerce ............................................... 16
1. Enterprise ...................................................................................................................... 16
2. In or Affecting Interstate or Foreign Commerce ........................................................... 17
III. RICO Abroad ........................................................................................................................... 17
IV. Consequences .......................................................................................................................... 18
A. Criminal Liability ............................................................................................................... 18
B. Civil Liability ..................................................................................................................... 19
V. Violent Crimes in Aid of Racketeering (VICAR) ..................................................................... 25
VI. Constitutional Questions ......................................................................................................... 29
A. General ............................................................................................................................... 29
1. Legislative Authority Under the Commerce Clause ..................................................... 29
2. Double Jeopardy ........................................................................................................... 30
3. Ex post facto ................................................................................................................. 31
4. Vagueness...................................................................................................................... 31
5. Cruel and Unusual Punishment ..................................................................................... 32
B. Forfeiture ............................................................................................................................ 32
1. Eighth Amendment ....................................................................................................... 32
2. First Amendment........................................................................................................... 34
3. Right to the Assistance of Counsel ............................................................................... 34
4. Right to Jury Trial ......................................................................................................... 35
5. Forfeiture of Estate ....................................................................................................... 35
Appendixes
Appendix A. Text of RICO Statutory Provisions .......................................................................... 37
Appendix B. Selected Bibliography .............................................................................................. 47
Appendix C. State RICO Citations ................................................................................................ 51
Contacts
Author Information........................................................................................................................ 51
Congressional Research Service
RICO: A Sketch
I. Introduction
Congress enacted the federal Racketeer Influenced and Corrupt Organization (RICO) provisions1
as part of the Organized Crime Control Act of 1970.2 Despite its name and origin, RICO is not
limited to “mobsters” or members of “organized crime,” as those terms are popularly understood.3
Rather, it covers those activities which Congress felt characterized the conduct of organized
crime, no matter who actually engages in them.4
RICO builds on other crimes.5 It enlarges the civil and criminal consequences of the patterned
commission of other state and federal offenses (otherwise known as predicate offenses or
racketeering activity), making it a crime to be a criminal, under certain circumstances.6
In simple terms, RICO condemns
(1) any person
(2) who
(a) invests in, or
(b) acquires or maintains an interest in, or
(c) conducts or participates in the affairs of, or
(d) conspires to invest in, acquire, or conduct the affairs of
(3) an enterprise
(4) which
(a) engages in, or
(b) whose activities affect, interstate or foreign commerce
(5) through
1 18 U.S.C. §§ 1961–1968 (text is appended in Appendix A).
2 Pub. L. No. 91-452, 84 Stat. 922.
3 Boyle v. United States, 556 U.S. 938, 950–51 (2009) (“‘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.... (declining to
read ‘an organized crime limitation into RICO’s pattern concept’) ... [and] (rejecting the view that RICO provides a
private right of action ‘only against defendants who had been convicted on criminal charges, and only where there had
occurred a racketeering injury.’”) (citations omitted) (quoting first Bridge v. Phoenix Bond & Indem. Co., 553 U.S.
639, 660 (2008); then Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 481 (1985); and then H.J., Inc. v. Nw. Bell Tel.
Co., 492 U.S. 229, 244 (1989))).
4 “To avoid classifying defendants according to such ancillary characteristics as group association and national origin,
the Act basically says ‘racketeer is as racketeer does’ and then tries to define what a racketeer does indeed do.” Andrew
P. Bridges, Private RICO Litigation Based Upon “Fraud” in the Sale of Securities, 18 GA. L. REV. 43, 49 (1983); see
also Gerard E. Lynch, RICO: The Crime of Being a Criminal: Parts I & II, 87 COLUM. L. REV. 661, 686–88 (1987).
5 Gerard E. Lynch, RICO: The Crime of Being a Criminal, Parts III & IV, 87 COLUM. L. REV. 920, 938–39 (1987); G.
Robert Blakey & Brian Gettings, Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts—Criminal
and Civil Remedies, 53 TEMP. L. Q. 1009, 1021 n.71 (1980) (“RICO is not a criminal statute: it does not make criminal
conduct that before its enactment was not already prohibited, since its application depends on the existence of
‘racketeering activity’ that violates an independent criminal statute.”).
6 The statute describes these underlying offenses as “racketeering activities.” See 18 U.S.C. § 1961(1) (defining
“racketeering activity” to mean “any act or threat involving” specified state offenses, any “act which is indictable
under” specified federal statutes, and certain federal “offenses”). They are often referred to as “predicate offenses.”
RJR Nabisco, Inc. v. Eur. Cmty, 579 U.S. 325, 329–30 (2016) (“RICO is founded on the concept of racketeering
activity. The statute defines racketeering activity to encompass dozens of state and federal offenses, known in RICO
parlance as predicates.”); Eller v. EquiTrust Life Ins. Co., 778 F.3d 1089, 1092 (9th Cir. 2015) (“A RICO claim requires
‘racketeering activity (known as predicate acts).’”).
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RICO: A Sketch
(a) the collection of an unlawful debt, or
(b) the patterned commission of various state and federal crimes.7
RICO violations subject the offender to a range of criminal penalties: (1) forfeiture of any
property acquired through a RICO violation and of any property interest in the enterprise
involved in the violation; (2) imprisonment for not more than twenty years, or life if one of the
predicate offenses carries such a penalty; and/or (3) a fine of not more than the greater of twice of
amount of gain or loss associated with the offense or $250,000 for individuals and $500,000 for
organizations.8 RICO shares predicate offenses with the federal money laundering statute9 and to
a limited extent with the Travel Act,10 so that conduct constituting a RICO violation or a RICO
predicate offense violation may also trigger criminal liability under those statutes. Federal law
also features a kind of RICO-enterprise’s “hitman” offense that outlaws committing various
crimes of violence at the behest of a RICO enterprise.11
RICO violations may also subject the offender to civil liability. The courts may award anyone
whose business or property is injured by a RICO violation treble damages, costs and attorneys’
fees,12 and may enjoin RICO violations, order divestiture, dissolution or reorganization, or restrict
an offender’s future professional or investment activities.13
7 In exact terms, 18 U.S.C. § 1962 declares the following:
(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of
racketeering activity or through collection of an unlawful debt in which such person has participated as a principal
within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such
income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any
enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of
securities on the open market for purposes of investment, and without the intention of controlling or participating in
control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection, if the securities of the
issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern of
racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one
percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one
or more directors of the issuer.
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful
debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the
activities of which affect, interstate or foreign commerce.
(c) 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.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this
section.
8 Id. §§ 1963, 3571.
9 Id. § 1956(c)(7)(A) (“the term ‘specified unlawful activity’ means – (A) any act or activity constituting an offense
listed in section 1961(1) of this title.... ”); id. § 1957(f)(3) (“the term[] ‘specified unlawful activity’ ... shall have the
meaning given th[is] term[] in section 1956 of this title.”).
10 Id. § 1952(b) (“As used in this section (i) ‘Unlawful activity’ means (1) any business enterprise involving gambling
... narcotics or controlled substances ... (2) extortion, bribery, or arson ... or (3) any act which is indictable … under
section 1956 or 1957 of this title.... ”).
11 Id. § 1959(a) (“Whoever, 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, shall be punished.... ”). The full text of 18 U.S.C. § 1959, with accompanying penalties, appears in
Appendix A).
12 Id. § 1963(c).
13 Id. § 1964(a).
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The RICO provisions also provide (1) for service of process in RICO criminal and civil cases,
and for venue in civil cases;14 (2) for expedited judicial action in certain RICO civil cases brought
by the United States;15 (3) for in camera proceedings in RICO civil cases initiated by the United
States;16 and (4) for the Department of Justice’s use of RICO civil investigative demands.17 RICO
prosecutions and civil actions have been attacked on a host of constitutional grounds and have
generally survived.18
II. A Closer Look at the Elements
A. Any person
Any person may violate RICO.19 The “person” need not be a mobster or even a human being;
“any individual or entity capable of holding a legal or beneficial interest in property” will do.20
Although the “person” and the “enterprise” must be distinct in the case of a subsection 1962(c)
violation (a person, employed by an enterprise, conducting the enterprise’s activities through
racketeering activity),21 a corporate entity and its sole shareholder are sufficiently distinct to
satisfy the enterprise and person elements of a subsection (c) violation.22 Conversely, the “person”
and “enterprise” need not be distinct for purposes of subsection 1962(a) (investing the
racketeering activity proceeds in an enterprise) or subsection 1962(b) (acquiring or maintaining
an enterprise through racketeering activity) violations.23
14
Id. § 1965.
15 Id. § 1966.
16 “In any proceeding ancillary to or in any civil action instituted by the United States under this chapter the
proceedings may be open or closed to the public at the discretion of the court after consideration of the rights of
affected persons.” Id. § 1967.
17 Id. § 1968. The civil investigative demand process, borrowed from antitrust law like so many of the other features of
RICO, permits the Attorney General to demand the production of documentary evidence from anyone prior to the
initiation of civil or criminal RICO investigation.
18 The challenges, ranging from Article III forfeiture issues to Eighth Amendment cruel and unusual punishment
questions, are discussed toward the end of this report.
19 Id. § 1962(a), (b), (c), (d).
20 Id. § 1961(3); e.g., United States v. Mongol Nation, 56 F.4 th 1244, 1246 (9th Cir. 2023) (unincorporated association).
21 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001) (“[U]nder § 1962(c) one must allege and prove
the existence of two distinct entities: (1) a ‘person’ and (2) an ‘enterprise’.... The Act says that it applies to ‘person[s]’
who are ‘employed by’ ... the ‘enterprise.’ In ordinary English one speaks of ... being employed by ... others, not
oneself.”); United States v. Kelly, 128 F.4th 387, 412 (2d Cir. 2025); CGC Holding Co., LLC v. Hutchens, 974 F.3d
1201, 1212 (10th Cir. 2020); Cisneros v. Petland, Inc., 972 F.3d 1204, 1216 (11th Cir. 2020); United States v. Bergrin,
650 F.3d 257, 266 (3d Cir. 2011); Abraham v. Singh, 480 F.3d 351, 357 (5th Cir. 2007); Living Designs, Inc. v. E.I.
DuPont de Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005); United States v. London, 66 F.3d 1227, 1244–45 (1st
Cir. 1995).
22 Cedric Kushner Promotions, Ltd., 533 U.S. at 163; Kelly, 128 F.4th at 412; CGC Holding Co., LLC, 974 F.3d at
1212; Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1345 (11th Cir. 2016).
23 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 574 (9th Cir. 2004) (“Churchill has pleaded sufficiently nonfrivolous claims under § 1962(a) and (b). We have not required that the RICO ‘person’ and ‘enterprise’ be distinct in
actions under these subsections.”); Gentry v. Resol. Trust Corp., 937 F.2d 899, 907 (3d Cir. 1991); In re Managed Care
Litig., 150 F. Supp. 2d 1330, 1351 (S.D. Fla. 2001).
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Even though governmental entities may constitute a corrupted RICO enterprise24 or in some
instances the victims of a RICO offense,25 courts have not considered them to be “persons”
capable of committing a RICO violation, either because a governmental entity does not have
mens rea capacity or by virtue of sovereign immunity.26
B. Conduct
RICO addresses four forms of illicit activity reflected in the four subsections of § 1962: (1)
acquiring or operating an enterprise using racketeering proceeds; (2) controlling an enterprise
using racketeering activities; (3) conducting the affairs of an enterprise using racketeering
activities; and (4) conspiring to so acquire, control, or conduct.
1. Invest or Use
The first, 18 U.S.C. § 1962(a), was designed as something of a money laundering provision.27
“The essence of a violation of § 1962(a) is not commission of predicate acts but investment of
racketeering income.”28 Section 1962(a), which has been described as the most difficult to
prove,29 has several elements. Under its provisions, it is unlawful for
(1) any person
(2) who is liable as a principal
(a) in the collection of an unlawful debt or
24 United States v. Shamah, 624 F.3d 449, 454–55 (7th Cir. 2010) (police department); United States v. Urban, 404 F.3d
754, 770–71 (3d Cir. 2005) (city department); United States v. Cianci, 378 F.3d 71, 83 (1st Cir. 2004) (mayor’s office);
Michalowski v. Rutherford, 82 F. Supp. 3d 775, 785 (E.D. Ill. 2015) (state agency); Ferluga v. Eickhoff, 408 F. Supp.
2d. 1153, 1162 (D. Kan. 2006) (municipality).
25 County of Oakland v. City of Detroit, 866 F.2d 839, 851 (6th Cir. 1989); Ill. Dep’t of Revenue v. Phillips, 771 F.2d
312, 316–17 (7th Cir. 1985). The United States, however, is not a “person” who may bring a suit for treble damages
under 18 U.S.C. § 1964(c). Chevron Corp. v. Donziger, 833 F.3d 74, 138 (2d Cir. 2016).
26 Ivanenko v. Yanukovich, 995 F.3d 232, 240 (D.C. Cir. 2021) (Foreign Sovereign Immunities Act precludes suit);
Abcarian v. Levine, 972 F.3d 1019, 1027 (9th Cir. 2020) (“[G]overnment entities are incapable of forming a malicious
intent.”); Gil Ramirez Grp., LLC v. Houston Indep. Sch. Dist., 786 F.3d 400, 411–12 (5th Cir. 2015) (“RICO requires
demonstrating an underlying criminal act, which entails a mens rea requirement that a governmental entity cannot
form.”); Brown v. Nationsbank Corp., 188 F.3d 579, 587 (5th Cir. 1999) (Federal Bureau of Investigation) (“[A] federal
agency, is not chargeable, indictable, or punishable for violations of state and federal criminal provisions.”); Gentry,
937 F.2d at 914 (municipal corporation); Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991) (Federal Insurance
Administration); Bloch v. Exec. Off. of the President, 164 F. Supp. 3d 841, 856 (E.D. Va. 2016) (federal agency); BEG
Invs., LLC v. Alberti, 85 F. Supp. 3d 13, 28–30 (D.D.C. 2015) (D.C. Alcohol Beverage Control Bd.); Naples v.
Stefanelli, 972 F. Supp. 2d 373, 389 (E.D.N.Y. 2013) (Suffolk Cty, N.Y.); see also NRP Holdings LLC v. City of
Buffalo, 916 F.3d 177, 190 (2d Cir. 2019) (legislative immunity).
27 Brittingham v. Mobil Corp., 943 F.2d 297, 303 (3d Cir. 1991) (citing 116 Cong. Rec. 35199 (1970) (statements of
Rep. St. Germain), 116 Cong. Rec. 607 (1970) (statements of Sen. Byrd), and 115 Cong. Rec. 6993 (1969) (statements
of Sen. Hruska)), abrogated on other grounds, Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., Inc., 46 F.3d 258 (3d
Cir. 1995) (en banc); Sadighi v. Daghighfekr, 36 F. Supp. 2d 279, 286 (D.S.C. 1999). RICO predates 18 U.S.C. §§
1956, 1957, the principal federal money laundering statutes, by close to a decade and a half.
28 Gristede’s Foods, Inc. v. Unkechauge Nation, 532 F. Supp. 2d 439, 446 (E.D.N.Y. 2007) (quoting Ouaknine v.
MacFarlane, 897 F.2d 75, 83 (2d Cir. 1990)); see also Ideal Steel Supply Corp. v. Anza, 373 F.3d 251 (2d Cir. 2004),
rev'd in part, vacated in part, 547 U.S. 451 (2006) (“Subsection (a), in contrast, focuses the inquiry on conduct
different from the conduct constituting the pattern of racketeering activity. After there have been sufficient predicate
acts to constitute such a pattern, what is forbidden by subsection (a) is the investment or use of the proceeds of that
activity to establish or operate a commerce-affecting enterprise.”).
29 BCCI Holdings (Lux.), Societe Anonyme v. Khalil, 56 F. Supp. 2d 14, 63 (D. D.C. 1999), aff’d in part, rev’d in part,
and remanded sub nom., BCCI Holdings (Lux.), S.A. v. Khalil, 214 F.3d 168 (D.C. Cir. 2000); G. Robert Blakey &
Ronald Goldstock, On the Waterfront: RICO and Labor Racketeering, 17 AM. CRIM. L. REV. 341, 356 (1980).
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(b) in a pattern of predicate offenses
(3) to use or invest
(4) the income from such misconduct
(5) to acquire, establish or operate
(6) an enterprise in or affecting commerce.30
The “person,” the pattern of predicate offenses, and the enterprise elements are common to all of
the subsections. For purposes of § 1962(a), however, a legal entity that benefits from the offense
may be both the “person” and the “enterprise.”31 The person must have committed usury or a
pattern of predicate offenses or aided and abetted in their commission,32 have received income
that would not otherwise have been received as a result, and used those proceeds to acquire or
operate an enterprise in or whose activities have an impact on interstate or foreign commerce.33
That is,
To state a claim under 18 U.S.C. § 1962(a), Plaintiffs must allege that (1) ‘the Defendants
derived income [through the collection of an unlawful debt; [and] (2) the income was used or
invested, directly or indirectly, in the establishment or operation; (3) of an enterprise; (4)
which is engaged in or the activities of which affect interstate or foreign commerce.’34
2. Acquire or Maintain
The second proscription, 18 U.S.C. § 1962(b), is much the same, except that it forbids acquisition
or control of an enterprise through the predicates themselves rather than through the income
derived from the predicates. It makes it unlawful for
(1) any person
(2) to acquire or maintain an interest in or control of
(3) a commercial enterprise
30 18 U.S.C. § 1962(a); N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 202 (5th Cir. 2015);
United States v. Vogt, 910 F.2d 1184, 1194 (4th Cir. 1990); In re Tether and Bitfinex Crypto Asst Litig., 576 F. Supp.
3d 55, 124 (S.D. N.Y. 2021); Francois v. Hatami, 565 F. Supp. 3d 1259, 1265 (S.D. Fla. 2021).
More precisely, the subsection declares, “(a) It shall be unlawful for any person who has received any income derived,
directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such
person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest,
directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the
establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign
commerce. A purchase of securities on the open market for purposes of investment, and without the intention of
controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this
subsection, if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their
accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not
amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or
in fact, the power to elect one or more directors of the issuer.” 18 U.S.C. § 1962(a).
31 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 574 (9th Cir. 2004) (“Where a corporation engages in
racketeering activities and is the direct or indirect beneficiary of the pattern of racketeering activity, it can be both the
‘person’ and the ‘enterprise’ under section 1962(a).”); Gentry v. Resolution Trust Corp., 937 F.2d 899, 907 (3d Cir.
1991); Downing v. Halliburton & Assocs., Inc., 812 F. Supp. 1175, 1178 (M.D. Ala. 1993), aff’d without written op.,
13 F.3d 410 (11th Cir. 1995).
32 Brady v. Dairy Fresh Prods. Co., 974 F.2d 1149, 1152 (9th Cir. 1992); United States v. Wyatt, 807 F.2d 1480, 1482
(9th Cir. 1987).
33 Nat’l Org. for Women, Inc. v. Scheidler, 968 F.2d 612, 625 (7th Cir. 1992), rev’d on other grounds, 510 U.S. 249
(1994); In re Burzynski, 989 F.2d 733, 744 (5th Cir. 1993); Kerrigan v. ViSalus, Inc., 112 F. Supp. 3d 580, 610–11
(E.D. Mich. 2015); Johnson v. GEICO Cas. Co., 516 F. Supp. 2d 351, 361 (D. Del. 2007).
34 Gibbs v. Haynes Inv., LLC, 368 F. Supp. 3d 901, 929–30 (E.D. Va. 2019); see also Anza v. Ideal Steel Suppy Corp.,
547 U.S. 451, 455 (2006)).
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(4) through
(a) the collection of an unlawful debt or
(b) a pattern of predicate offenses.35
As in the case of subsection 1962(a), the “person” and the “enterprise” may be one and the
same.36 There must be a nexus between the predicate offenses and the acquisition of control.37
Exactly what constitutes “interest” or “control” is a case-by-case determination. The defendant
must be shown to have played some significant role in the management of the enterprise, but a
showing of complete control is unnecessary.38 In summary as one court explained, “To establish a
violation of § 1962(b), Plaintiffs must allege that: ‘(1) the Defendants engaged in [collection of an
unlawful debt]; (2) in order to acquire or maintain, directly or indirectly; (3) any interest or
control over an enterprise; (4) which is engaged in, or the activities of which affect interstate or
foreign commerce.’”39
3. Conduct of Affairs
Subsection 1962(c) makes it unlawful for
(1) any person,
(2) employed by or associated with,
(3) a commercial enterprise
(4) to conduct or participate, directly or indirectly, in the conduct of the enterprise’s affairs
(5) through
(a) the collection of an unlawful debt or
(b) a pattern of predicate offenses.40
35 18 U.S.C. § 1962(b) (“It shall be unlawful for any person through a pattern of racketeering activity or through
collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise
which is engaged in, or the activities of which affect, interstate or foreign commerce.”); D’Addario v. D’Addario, 75
F.4th 86, 92–93 (2d Cir. 2023); Tal v. Hogan, 453 F.3d 1244, 1268 (10th Cir. 2006); Advoc. Org. for Patients and
Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 321–22 (6th Cir. 1999).
36 Churchill Vill., L.L.C., 361 F.3d 566, 574 (9th Cir. 2004); Landry v. Air Line Pilots Ass'n Int’l, 901 F.2d 404 (5 th Cir.
1990), opinion modified on denial of reh'g (Apr. 27, 1990); Gentry v. Resol. Trust Corp., 937 F.2d 899, 907 (3d Cir.
1991); Whaley v. Auto Club Ins. Ass’n, 891 F. Supp. 1237, 1241–42 (E.D. Mich. 1995).
37 Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003), rev’d on other grounds, Odom v. Microsoft Corp.,
486 F.3d 541, 551 (9th Cir. 2007) (en banc); Advoc. Org. for Patients and Providers, 176 F.3d at 329; Banks v. Wolk,
918 F.2d 418, 421 (3d Cir. 1990); Andrews Farms v. Calcot, Ltd., 527 F. Supp. 2d 1239, 1256 (E.D. Cal. 2007).
38 Tal, 453 F.3d at 1268–69 (“‘Interest in or control of’ requires more than a general interest in the results of its actions,
or the ability to influence the enterprise through deceit ... Rather, it requires some ownership of the enterprise or an
ability to exercise dominion over it.”); Ikuno v. Yip, 912 F.2d 306, 310 (9th Cir. 1990) (citing Cincinnati Gas & Elec.
Co. v. Gen. Elec. Co., 656 F. Supp. 49, 85 (S.D. Ohio 1986)); Nafta v. Feniks Int’l House of Trade (USA), Inc., 932 F.
Supp. 422, 428 (E.D.N.Y.1996); Griffin v. NBD Bank, 43 F. Supp. 2d 780, 791–92 (W.D. Mich. 1999) (includes the
control evidenced by the ability to select one or more of members of a corporation’s board of directors).
39 Gibbs v. Stinson, 421 F. Supp. 3d 267, 311 (E.D. Va. 2019) (quoting Smithfield Foods, Inc. v. United Food & Com.
Workers Int’l Union, 633 F. Supp. 2d 214, 222 (E.D. Va. 2008)); see also Espire ADS LLC v. Tapp Influencers Corp.,
655 F. Supp. 3d 233, 25 (S.D. N.Y. 2023); Sarpolis v. Tereshko, 26 F. Supp. 3d 407, 429–30 (E.D. Pa. 2014).
40 “(c) 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.” 18 U.S.C. § 1962(c).
United States v. Muñoz-Martinez, 79 F.4th 44, 50 (1st Cir. 2023); Muskegan Hotels, LLC v. Patel, 986 F.3d 692, 698
(7th Cir. 2021) (“To state a claim under § 1962(c), the complaint must allege that [the defendant] engaged in the (1)
conduct (2) of an enterprise (3) through a pattern of racketeering activity or collection of an unlawful debt.” (citing
Salinas v. United States, 522 U.S. 52, 62 (1997))); Molina-Aranda v. Black Magic Enters., L.L.C., 983 F.3d 779, 784
(5th Cir. 2020) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)) (“To state a claim under § 1962(c), a
(continued...)
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Subsection 1962(c) is the most common substantive basis for RICO prosecution or civil action.41
Although on its face subsection 1962(c) might appear to be less demanding than subsections
1962(a) and (b), courts have not always read it broadly. Thus, in any charge of a breach of its
provisions, the “person” and the “enterprise” must ordinarily be distinct.42 A corporate entity and
its sole shareholder, however, are sufficiently distinct for purposes of subsection 1962(c).43
The Supreme Court has identified a managerial stripe in the “conduct or participate in the
conduct” element of subsection 1962(c) under which only those who direct the operation or
management of the enterprise itself satisfy the “conduct” element.44 Liability is not limited to the
“upper management” of an enterprise, but extends as well to those within the enterprise who
exercise broad discretion in carrying out the instructions of upper management.45 Conviction
requires neither an economic predicate offense nor a predicate offense committed with an
economic motive.46
4. Conspiracy
Conspiracy under subsection 1962(d) is
(1) the agreement of
(2) two or more
(3) to invest in, acquire, or conduct the affairs of
(4) a commercial enterprise
plaintiff must adequately plead that the defendant engaged in ‘(1) conduct (2) of an enterprise (3) through a pattern (4)
of racketeering activity.’”); United States v. Fowler, 535 F.3d 408, 418 (6th Cir. 2008) (“A substantive RICO charge
requires the Government to prove: (1) the existence of an enterprise which affects interstate or foreign commerce; (2)
the defendant’s association with the enterprise; (3) the defendant’s participation in the conduct of the enterprise’s
affairs; and (4) that the participation was through a pattern of racketeering activity.”); see also CGC Holding Co., LLC
v. Hutchens, 974 F.3d 1201, 1212 (10th Cir. 2020); United States v. Godwin, 765 F.3d 1306, 1320 (11th Cir. 2014);
Crest Const. II, Inc. v. Doe, 660 F.3d 346, 353 (8th Cir. 2011); United States v. Brandao, 539 F.3d 44, 50–1 (1st Cir.
2008); Cordero v. TransAmerica Annuity Serv. Corp., 452 F. Supp. 3d 1292, 1303 (S.D. Fla. 2020); Brown v.
Knoxville HMA Holding, LLC, 447 F. Supp. 3d 630, 639, 645 (M.D. Tenn. 2020).
41 Randy D. Gordon, Crimes That Count Twice: A Reexamination of RICO’s Nexus Requirements Under 18 U.S.C.
§§1962(c) and 1964(c), 32 VT. L. REV. 171, 173 (2007).
42 RJR Nabisco, Inc. v. Eur. Cmty, 579 U.S. 325, 343 (2016) (citing Cedric Kushner Promotions, Ltd. v. King, 533 U.S.
158, 161 (2001)); Coronavirus Rep. v. Apple, Inc., 85 F.4th 948, 958 (9th Cir. 2023) (“If a corporation is the enterprise,
it cannot also at the same time be the RICO defendant.”); Safe Streets All. v. Hickenlooper, 859 F.3d 865, 883 (10th
Cir. 2019); Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 655 (7th Cir. 2015); N. Cypress Med. Ctr. v. Cigna
Healthcare, 781 F.3d 182, 202 (5th Cir. 2015); In re ClassicStar Mare Lease Litig., 727 F.3d 473, 490 (6th Cir. 2013);
City of New York v. Smokes-Spirits.Com, Inc., 541 F.3d 425, 446–47 (2d Cir. 2008), rev’d on other grounds sub nom.,
Hemi Group v. City of New York, 559 U.S. 1, 11 (2010); Myers v. Provident Life and Accident Ins. Co., 472 F. Supp.
3d 1149, 1172 (M.D. Fla. 2020); Compound Prop. Mgmt. LLC v. Build Realty, Inc., 462 F. Supp. 3d 839, 856 (S.D.
Ohio 2020).
43 Cedric Kushner Promotions, Ltd., 533 U.S. at 161.
44 Reves v. Ernst & Young, 507 U.S. 170, 184–85 (1993); see also Muskegan Hotels, LLC v. Patel, 986 F.3d 692, 698
(7th Cir. 2021); United States v. Rodriguez-Torres, 939 F.3d 16, 28 (1st Cir. 2019) (“Prosecutors also had to prove that
the defendants had ‘some part in directing [the enterprise].... ’” (quoting Reves, 507 U.S. at 184)); D’Addario v.
D’Addario, 901 F.3d 80, 103 (2d Cir. 2018).
45 Muskegan Hotels, 986 F.3d at 698 (“This operation-or-management requirement does not necessarily limit the scope
of liability to an enterprise’s upper management. Lower-rung participants and even third-party outsiders can be liable,
provided they play a part in operating or managing the enterprise.... But the law is equally clear that the operation-ormanagement requirement is not met through the mere provision of professional services to the alleged racketeering
enterprise.”); Rodriguez-Torres, 939 F.3d at 28; Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 674–75 (5th Cir. 2015):
United States v. Godwin, 765 F.3d 1306, 1320 (11th Cir. 2014); Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d
783, 791–92 (6th Cir. 2012).
46 Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256–61 (1994).
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(5) in a manner which violates 18 U.S.C. §§ 1962(a), (b), or (c).47
The heart of the crime lies in the agreement rather than any completed, concerted violation of the
other three RICO subsections.48 Unlike the general conspiracy statute, RICO conspiracy is
complete upon the agreement, even if none of the conspirators ever commit an overt act toward
the accomplishment of its criminal purpose.49 Contrary to the view once held by some of the
lower courts, there is no requirement that a defendant commit or agree to commit two or more
predicate offenses himself.50 It is enough that the defendant, in agreement with another, intended
to further an endeavor which, if completed, would satisfy all of the elements of a RICO
violation.51 In some circuits, both the government and private litigants may be required to prove
the existence of a RICO qualified enterprise under the conspiracy provisions.52
A conspirator is liable not only for the conspiracy but for any foreseeable substantive offenses
committed by any of the conspirators in furtherance of the common scheme, until the objectives
47 18 U.S.C. § 1962(d) (“It shall be unlawful for any person to conspire to violate any of the provisions of subsection
(a), (b), or (c) of this section”); United States v. Huskey, 90 F.4th 651, 662 (4th Cir. 2024); United States v. Onyeri, 996
F.3d 274, 280 (5th Cir. 2021) (“The elements of a RICO conspiracy are: (1) an agreement between two or more people
to commit a substantive RICO offense; and (2) knowledge of and agreement to the overall objective of the RICO
offense.”); United States v. Brown, 973 F.3d 667, 682 (7th Cir. 2020) (“To prove a RICO conspiracy [to violate §
1962(c)], ‘the government must show (1) an agreement to conduct or participate in the affairs (2) of an enterprise (3)
through a pattern of racketeering activity.’” (quoting United States v. Olson, 450 F.3d 655, 664 (7th Cir. 2006))); United
States v. Williams, 974 F.3d 320, 369–70 (3d Cir. 2020); United States v. Wall, 116 F.4th 1285, 1298 (11th Cir. 2024)
(“’Agreement to participate in a RICO conspiracy can be prove[n] in one of two ways’: (1) ‘by showing an agreement
on an overall objective’ or (2) ‘by showing that a defendant agreed personally to commit two predicate acts.’(quoting
United States v. Abbell, 271 F.3d 1286.1299 (11th Cir. 2001))).
48 United States v. Tisdale, 980 F.3d 1089, 1096 (6 th Cir. 2020) (quoting Salinas v. United States, 522 U.S. 52, 63
(1997)) (“To prove guilt of a RICO conspiracy like this one, the government had to show that [the defendant]
‘adopt[ed] the goal of furthering or facilitating the criminal endeavor.’”); United States v. Delgado, 972 F.3d 63, 79 (2d
Cir. 2020) (“Importantly, the crime of RICO conspiracy ‘centers on the act of agreement.... [T]he government ‘need
only prove that the defendant knew of, and agreed to, the general criminal objective of a jointly undertaken scheme.’”
(quoting United States v. Arrington, 941 F.3d 24, 36–37 (2d Cir. 2019))).
49 Salinas v. United States, 522 U.S. 52, 63 (1997); Williams, 974 F.3d at 368; United States v. Wilkerson, 966 F.3d
828, 841 (D.C. Cir. 2020); United States v. Ruan, 966 F.3d 1101 (11th Cir. 2020), vacated and remanded, 597 U.S. 450
(2022), and cert. granted, judgment vacated sub nom., Couch v. United States, 142 S. Ct. 2895 (2022) (mem.), and
adhered to in part, 56 F.4th 1291 (11th Cir. 2023) (per curiam) ; United States v. Leoner-Aguirre, 939 F.3d 310, 317 (1st
Cir. 2019); see also Salinas, 522 U.S. at 65 (“[A] conspiracy may exist and be punished whether or not the substantive
crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself.”).
50 Salinas, 522 U.S. at 65–66; United States v. Watkins, 107 F.4th 607, 627 (7th Cir. 2024); United States v. RamosBaez, 86 F.4th 28, 48 (1st Cir. 2023); United States v. Millán-Machuca, 991 F.3d 7, 18 (1st Cir. 2021); Williams, 974
F.3d at 369; Brown, 973 F.3d at 684.
51 Salinas, 522 U.S. at 65; Millán-Machuca, 991 F.3d at 18 (quoting Salinas, 522 U.S. at 65); United States v.
Rosenthal, 805 F.3d 523, 530 (5th Cir. 2015) (“The elements of a conspiracy under § 1962(d) are simply (1) that two or
more people agreed to commit a substantive RICO offense and (2) that the defendant knew of and agreed to the overall
objective of the RICO offense.”); United States v. Cornell, 780 F.3d 616, 621 (4th Cir. 2015); United States v. Lawson,
535 F.3d 434, 445 (6th Cir. 2008); United States v. Fernandez, 388 F.3d 1199, 1228 (9th Cir. 2004); United States v.
Warneke, 310 F.3d 542, 547–48 (7th Cir. 2003).
52 Bucher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020) (“To state a claim for RICO conspiracy under § 1962(d), the
plaintiff must also ‘allege the existence of an agreement to violate RICO’s substantive provisions.’”) ; Williams, 974
F.3d at 367–68 (“The fountainhead of any criminal conspiracy is the agreement.... ”); Arrington, 941 F.3d 24, 36–37
(2d Cir. 2019) (“To prove a RICO conspiracy, the Government need not establish the existence of an enterprise, or that
the defendant committed any predicate act. It need only prove that the defendant knew of, and agreed to, the general
criminal objective of a jointly undertaken scheme.” (citations omitted)); United States v. Cornelius, 696 F.3d 1307,
1317 (10th Cir. 2012); United States v. Ramirez-Rivera, 800 F.3d 1, 18 (1st Cir. 2015) (“For a defendant to be found
guilty of conspiring to violate RICO, the government must prove (1) the existence of an enterprise affecting interstate
or foreign commerce.... ”); Cornell, 780 F.3d 616, 621 (4th Cir. 2015) (“To satisfy § 1962(d), the government must
prove that an enterprise affecting interstate commerce existed.... ”).
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of the plot are achieved, abandoned, or the conspirator withdraws.53 The statute of limitations for
a RICO conspiracy runs until the scheme’s objectives are accomplished or abandoned, or until the
defendant withdraws.54 As a general rule, “[t]o withdraw from a conspiracy, an individual must
take some affirmative action either by reporting to authorities or communicating his intentions to
his coconspirators.”55 The individual bears the burden of showing he has done so.56
C. Pattern of Racketeering Activity
1. Predicate Offenses
The heart of most RICO violations is a pattern of racketeering activities, that is, the patterned
commission of two or more designated state or federal crimes. The list of state and federal crimes
upon which a RICO violation may be predicated includes the following:
(A) any act or threat, chargeable under state law and punishable by imprisonment for more
than one year, involving—
Murder,
Arson,
Kidnapping,
Bribery,
Extortion,
Gambling,
Robbery,
Dealing in obscene material, or
Dealing in controlled substances or listed chemicals;
(B) any violation of—
18 U.S.C. § 201 (bribery of federal officials)
18 U.S.C. § 224 (bribery in sporting contests)
18 U.S.C. §§ 471, 472, 473 (counterfeiting)
18 U.S.C. § 659 (theft from interstate shipments) (if felonious)
18 U.S.C. § 664 (theft from employee benefit plan)
18 U.S.C. §§ 891–894 (loansharking)
18 U.S.C. § 932 (straw purchasing)
53 Pinkerton v. United States, 328 U.S. 640, 646–47 (1946); United States v. Savage, 85 F.4 th 102, 136 (3d Cir. 2023);
Williams, 974 F.3d at 368; United States v. Portillo, 969 F.3d 144, 166 (5th Cir. 2020); United States v. McGill, 815
F.3d 846, 917–18 (D.C. Cir. 2016); United States v. Christensen, 801 F.3d 970 (9th Cir. 2015), opinion amended and
superseded on denial of reh'g, 828 F.3d 763 (9th Cir. 2015); United States v. Garcia, 754 F.3d 460, 470–71 (7th Cir.
2014); see also Smith v. United States, 568 U.S. 106, 111 (2013) (“Withdrawal terminates the defendant’s liability for
postwithdrawal acts of his co-conspirators, but he remains guilty of conspiracy.”). Co-conspirator statements also
qualify as exceptions to the hearsay rule and may be admitted in evidence against all participants in the scheme. United
States v. Torres, 124 F.4th 84, 99 (2d Cir. 2024).
54 United States v. Wilkerson, 966 F.3d 828, 840 (D.C. Cir. 2020) (“As the Supreme Court has explained, however, ‘the
offense in ... conspiracy ... continues until termination of the conspiracy or, as to a particular defendant, until [the]
defendant’s withdrawal.’ Put simply, ‘a defendant who has joined a conspiracy continues to violate the law through
every moment of the conspiracy’s existence.’” (quoting Smith, 568 U.S. at 113, 111)).
55 United States v. Bostick, 791 F.3d 127, 143–44 (D.C. Cir. 2015); United States v. Horn, 129 F.4 th 1275, 1291 (11th
Cir. 2025); United States v. Jimenez, 96 F.4th 317, 322 (2d Cir. 2024); United States v. Brumfield, 89 F.4th 506, 523 (5th
Cir. 2023); United States v. Ravenell, 66 F.4th 472, 482 (4th Cir. 2023).
56 Smith, 568 U.S. at 111; Williams, 974 F.3d at 368.
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18 U.C.S. § 933 (trafficking in firearms)
18 U.S.C. § 1028 (fraudulent identification documents) (if for profit)
18 U.S.C. § 1029 (computer fraud)
18 U.S.C. § 1084 (transmission of gambling information)
18 U.S.C. § 1341 (mail fraud)
18 U.S.C. § 1343 (wire fraud)
18 U.S.C. § 1344 (bank fraud)
18 U.S.C. § 1351 (fraud in foreign labor contracting),
18 U.S.C. § 1425 (procuring nationalization unlawfully)
18 U.S.C. § 1426 (reproduction of naturalization papers)
18 U.S.C. § 1427 (sale of naturalization papers)
18 U.S.C. §§ 1461–1465 (obscene matter)
18 U.S.C. § 1503 (obstruction of justice)
18 U.S.C. § 1510 (obstruction of criminal investigation)
18 U.S.C. § 1511 (obstruction of state law enforcement)
18 U.S.C. § 1512 (witness tampering)
18 U.S.C. § 1513 (witness retaliation)
18 U.S.C. §§ 1542, 1543, 1544, 1546 (passport or similar document fraud)
18 U.S.C. §§ 1581–1592 (peonage & slavery)
18 U.S.C. § 1831 (economic espionage)
18 U.S.C. § 1832 (theft of trade secrets)
18 U.S.C. § 1951 (Hobbs Act (interference with commerce by threat or violence)
18 U.S.C. § 1952 (Travel Act (interstate travel in aid of racketeering)
18 U.S.C. § 1953 (transportation of gambling paraphernalia)
18 U.S.C. § 1954 (bribery to influence employee benefit plan)
18 U.S.C. § 1955 (illegal gambling business)
18 U.S.C. §§ 1956, 1957 (money laundering)
18 U.S.C. § 1958 (murder for hire)
18 U.S.C. § 1960 (illegal money transmitters)
18 U.S.C. §§ 2251, 2251A, 2252, 2260 (sexual exploitation of children)
18 U.S.C. §§ 2312, 2313 (interstate transportation of stolen cars)
18 U.S.C. §§ 2314, 2315 (interstate transportation of stolen property)
18 U.S.C. §§ 2318–2320 (copyright infringement)
18 U.S.C. § 2321 (trafficking in certain motor vehicles or motor vehicle parts)
18 U.S.C. §§ 2341–2346 (contraband cigarettes)
18 U.S.C. §§ 2421–2424 (Mann Act)
(C) indictable violations of—
29 U.S.C. § 186 (payments and loans to labor organizations)
29 U.S.C. § 501(c) (embezzlement of union funds)
(D) any offense involving—
fraud connected with a case under title 11 (bankruptcy)
fraud in the sale of securities
felonious violations of federal drug law
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(E) violation of the Currency and Foreign Transactions Reporting Act [31 U.S.C. §§ 5311–
5332]
(F) violation (for profit) of the Immigration and Nationality Act, section 274 (bringing in and
harboring aliens), section 277 (helping aliens enter the U.S. unlawfully), or section 278
(importing aliens for immoral purposes), and
(G) violation of [a statute identified as a federal crime of terrorism in 18 U.S.C.
§ 2332b(g)(5)(B)]—
18 U.S.C. § 32 (destruction of aircraft or aircraft facilities)
18 U.S.C. § 37 (violence at international airports)
18 U.S.C. § 81 (arson within special maritime and territorial jurisdiction)
18 U.S.C. § 175 or 175b (biological weapons)
18 U.S.C. § 175c (variola virus)
18 U.S.C. § 229 (chemical weapons)
18 U.S.C. § 351(a), (b), (c), or (d) (congressional, cabinet, and Supreme Court
assassination and kidnaping)
18 U.S.C. § 831 (nuclear materials)
18 U.S.C. § 832 (participating in foreign nuclear program)
18 U.S.C. § 842(m) or (n) (plastic explosives)
18 U.S.C. § 844(f)(2) or (3) (arson and bombing of Government property risking or
causing death)
18 U.S.C. § 844(i) (arson and bombing of property used in interstate commerce)
18 U.S.C. § 930(c) (killing or attempted killing during an attack on a Federal facility with
a dangerous weapon)
18 U.S.C. § 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad)
18 U.S.C. § 1030(a)(1) (protection of computers)
18 U.S.C. § 1030(a)(5)(A)(damage to protected computers under § 1030(a)(4)(A)(i)(II)
through (VI))
18 U.S.C. § 1114 (killing or attempted killing of officers and employees of the United
States)
18 U.S.C. § 1116 (murder or manslaughter of foreign officials, official guests, or
internationally protected persons)
18 U.S.C. § 1203 (hostage taking)
18 U.S.C. § 1361 (destruction of government property)
18 U.S.C. § 1362 (destruction of communication lines, stations, or systems)
18 U.S.C. § 1363 (injury to buildings or property within special maritime and territorial
jurisdiction of the United States)
18 U.S.C. § 1366(a) (destruction of an energy facility)
18 U.S.C. § 1751(a), (b), (c), or (d) (presidential and presidential staff assassination and
kidnaping)
18 U.S.C. § 1992 (attacks on trains or mass transit)
18 U.S.C. §§ 2155–2156 (destruction of national defense materials, premises, or utilities)
18 U.S.C. § 2280 (violence against maritime navigation)
18 U.S.C. § 2280a (maritime safety)
18 U.S.C. § 2281 (violence against maritime fixed platforms)
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18 U.S.C. § 2281 (additional offenses against maritime fixed platforms)
18 U.S.C. § 2332 (homicide and other violence against United States nationals occurring
outside of the United States)
18 U.S.C. § 2332a (use of weapons of mass destruction)
18 U.S.C. § 2332b (acts of terrorism transcending national boundaries)
18 U.S.C. § 2332f (bombing public places and facilities)
18 U.S.C. § 2332g (anti-aircraft missiles)
18 U.S.C. § 2332h (radiological dispersal devices)
18 U.S.C. § 2332i (nuclear terrorism)
18 U.S.C. § 2339 (harboring terrorists)
18 U.S.C. § 2339A (providing material support to terrorists)
18 U.S.C. § 2339B (providing material support to terrorist organizations)
18 U.S.C. § 2339C (financing terrorism)
18 U.S.C. § 2339D (receipt of training from foreign terrorist organization)
18 U.S.C. § 2340A (torture)
21 U.S.C. § 960A (narco-terrorism)
42 U.S.C. § 2122 (atomic weapons)
42 U.S.C. § 2284 (sabotage of nuclear facilities or fuel)
49 U.S.C. § 46502 (aircraft piracy)
49 U.S.C. § 46504 (2d sentence) (assault on a flight crew with a dangerous weapon)
49 U.S.C. § 46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of
human life by means of weapons, on aircraft)
49 U.S.C. § 46506 (if homicide or attempted homicide is involved, application of certain
criminal laws to acts on aircraft)
49 U.S.C. § 60123(b) (destruction of interstate gas or hazardous liquid pipeline facility).57
Offenses “involving” controlled substance felonies are predicate offenses under 18 U.S.C. §
1961(1)(D). The Controlled Substances Act outlaws attempt and conspiracies to violate its felon
proscriptions.58 As a general rule, “predicate racketeering acts that are themselves conspiracies
may form the basis for a charge and eventual conviction under § 1962(d).” 59 Consequently,
conspiracy to commit a controlled substance felony constitutes a RICO predicate offense even
under the RICO conspiracy provision. 60
To constitute “racketeering activity,” the predicate offense need only be committed; there is no
requirement that the defendant or anyone else have been convicted of a predicate offense before a
RICO prosecution or action may be brought.61 Conviction of a predicate offense, on the other
57 18 U.S.C. § 1961(1). Paragraph 1961(1)(G) simply states that the crimes listed in 18 U.S.C. § 2332b(g)(5)(B) (i.e.,
federal crimes of terrorism) are predicate offenses; thus, whenever a crime is added to subparagraph § 2332b(g)(5)(B) it
becomes a RICO predicate offense, sub silentio.
58 21 U.S.C. § 846.
59 United States v. Rodriguez, 971 F.3d 1005, 1013–14 (9th Cir. 2020) (citing in accord First, Second, Third, Fifth,
Sixth, and Seventh Circuit decisions).
60 United States v. Wilkerson, 966 F.3d 828, 839 (D.C. Cir. 2020) (Several circuits have thus held that section
1961(1)(D) encompasses related conspiracy offenses.... We agree and now hold that a narcotics conspiracy offense
constitutes racketeering activity under section 1961(1)(D).”).
61 Sedima, S.P.L.R. v. Imrex Co., 473 U.S. 479, 488 (1985); Am. Chiropractic v. Trigon Healthcare, 367 F.3d 212, 233
(continued...)
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hand, does not preclude a subsequent RICO prosecution, nor is either conviction or acquittal a bar
to a subsequent RICO civil action.62
2. Pattern
The pattern of racketeering activities element of RICO requires (1) the commission of two or
more predicate offenses, (2) that the predicate offenses be related and not simply isolated events,
and (3) that they are committed under circumstances that suggest either a continuity of criminal
activity or the threat of such continuity.63
i. Predicates: The first element is explicit in § 1961(5): “‘Pattern of racketeering activity’ requires
at least two acts of racketeering activity.” The two remaining elements, relationship and
continuity, flow from the legislative history of RICO. That history
shows that Congress indeed had a fairly flexible concept of a pattern in mind. A pattern is
not formed by sporadic activity ... [A] person cannot be subjected to the sanctions [of
RICO] simply for committing two widely separate and isolated criminal offenses. Instead,
the term ‘pattern’ itself requires the showing of a relationship between the predicates and
of the threat of continuing activity. It is this factor of continuity plus relationship which
combines to produce a pattern.64
ii. Related predicates: The commission of predicate offenses forms the requisite related pattern if
the “criminal acts ... 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.”65
(4th Cir. 2004). A civil RICO cause of action based on fraud in the purchase or sale of securities requires a prior
conviction, 18 U.S.C. § 1964(c) (“[E]xcept that no person may rely upon any conduct that would have been actionable
as fraud in the purchase or sale of securities to establish a violation of section 1962.... ”); Menzies v. Seyfarth Shaw
LLP 943 F.3d 328, 334 (7th Cir. 2019) (“[T]he bar in 1964(c) ... requires asking whether the fraud Menzies alleged in
his complaint would be actionable under the securities laws.”); Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1249
(11th Cir. 2016); Lerner v. Coleman, 485 F. Supp. 3d 319, 333 (D. Mass. 2020) (“When it passed the Private Securities
Litigation Reform Act in 1995, ‘Congress meant not only to eliminate securities fraud as a predicate offense in a civil
RICO action, but also to prevent a plaintiff from pleading other specified offenses, such as mail or wire fraud, as
predicate acts under civil RICO if such offenses are based on conduct that would have been actionable as securities
fraud.’”).
62 McCarthy v. Pacific Loan, Inc., 629 F. Supp. 1102, 1108 (D. Haw. 1986); cf. Appley v. West, 832 F.2d 1021, 1024–
25 (7th Cir. 1987); see discussion of “Double Jeopardy” constitutional issue infra page 30.
63 H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 (1989); RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 330
(2016); D & T Partners, LLC v. Baymark Partners Mgmt., LLC, 98 F.4th 198, 205 (5th Cir. 2024); UMB Bank, B.A. v.
Guerin, 89 F.4th 1047, 1056 (8th Cir. 2024); United States v. Laurent, 33 F.4th 63, 75 (2d Cir. 2022); United States v.
Millán-Machuca, 991 F.3d 7, 18 (1st Cir. 2021); United States v. Williams, 974 F.3d 320, 369 (3d Cir. 2020); Cisneros
v. Petland, Inc., 972 F.3d 1204, 1216 (11th Cir. 2020).
64 H.J., Inc., 492 U.S. at 239 (1989) (emphasis of the Court) (citing S. REP. NO. 617, 91st Cong., at 158 (1969) and 116
Cong. Rec. 18940 (1970) (statement of Sen. McClellan)); D & T Partners, 98 F.4th at 205; UMB Bank, 89 F.4th at 1056;
Johnson Heath, 56 F.4th 831, 859 (10th Cir. 2022); Grubbs v. Sheakley Group, Inc., 807 F.3d 785, 804 (6th Cir. 2015);
Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 659 (7th Cir. 2015).
65 H.J., Inc., 492 U.S. at 240 (quoting, 18 U.S.C. § 3575(e)); see also D & T Partners, 98 F.4th at 205; Johnson, 56 F.4th
at 859; Laurent, 33 F.4th at 75; United States v. Stepanets, 989 F.3d 88, 107 (1st Cir. 2021); Menzies v. Seyfarth Shaw,
LLP, 943 F.3d 328, 337 (7th Cir. 2019); United States v. Pinson, 860 F.3d 152, 161 (4th Cir. 2017); United States v.
Henley, 766 F.3d 893, 907 (8th Cir. 2014); United States v. Godwin, 765 F.3d 1306, 1321 (11th Cir. 2014). There may
be some question whether the predicate offenses must relate to each other as well as to the enterprise. Compare United
States v. Vernace, 811 F.3d 609, 615–16 (2d Cir. 2016)(“[P]redicate acts ‘must be related to each other (‘horizontal’
relatedness), and they must be related to the enterprise (‘vertical relatedness’).’ Vertical relatedness requires ‘that the
defendant was enabled to commit the offense solely because of his position in the enterprise or his involvement in or
(continued...)
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iii. Continuity: The law recognizes continuity in two forms, pre-existing (“closed-ended”) and
anticipated (“open-ended”).66 The first is characterized by “a series of related predicates
extending over a substantial period of time. Predicate acts extending over a few weeks or months
and threatening no future criminal conduct do not satisfy this requirement.”67 The second exists
when a series of related predicates has begun and, but for intervention, would be a threat to
continue in the future.68 The Supreme Court has characterized a pattern extending over a period of
time but which posed no threat of reoccurrence as a pattern with “closed-ended” continuity; and a
pattern marked by a threat of reoccurrence as a pattern with “open-ended continuity.”69
In the case of a “closed-ended” pattern, the lower courts have been reluctant to find predicate
activity extending over less than a year sufficient for the “substantial period[s] of time” required
to demonstrate continuity.70
Whether the threat of future predicate activity is sufficient to recognize an “open-ended” pattern
of continuity depends upon the nature of the predicate offenses and the nature of the enterprise.
“Though the number of related predicates involved may be small and they may occur close
together in time, the racketeering acts themselves include a specific threat of repetition extending
control over the enterprise’s affairs, or because the offense related to the activities of the enterprise.’ ‘It is not
necessary,’ however, ‘that the offense be in furtherance of the enterprise’s activities for the offense to be related to the
activities of the enterprise.’ Further, ‘the same or similar proof [that] establish[es] vertical relatedness’ may also
establish horizontal relatedness, because ‘the requirements of horizontal relatedness can be established by linking each
predicate act to enterprise.’” (first quoting United States v. Minicone, 960 F.2d 1099, 1106 (2d Cir. 1992); then quoting
United States v. Burden, 600 F.3d 204, 216 (2d Cir. 2010); then quoting United States v. Bruno, 383 F.3d 65, 84 (2d
Cir. 2004); and then quoting United States v. Daidone, 471 F.3d 371, 375 (2d Cir. 2006) (per curiam)); and Henley,
766 F.3d at 907; with United States v. Fowler, 535 F.3d 408, 420 (6th Cir. 2008) (“It may be true that Fowler’s
predicate acts are not directly interrelated with each other, but that is not required. Instead, the predicate acts must be
connected to the affairs and operations of the criminal enterprise.”).
66 H.J., Inc., 492 U.S. at 242; see also D & T Partners, 98 F.4th at 205; UMB Bank, 89 F.4th 1056; Johnson, 56 F.4th at
859; Chin, 965 F.3d at 41, 48 (1st Cir. 2020); Grubbs, 807 F.3d at 804; United States v. Pierce, 785 F.3d 832, 838 (2d
Cir. 2015).
67 H.J., Inc., 492 U.S. at 242.
68 Id. (emphasis added); United States v. Richardson, 167 F.3d 621, 626 (D.C. Cir. 1999) (“fortuitous interruption of
racketeering activity such as by an arrest does not grant defendants a free pass to evade RICO charges.”).
69 H.J., Inc., 492 U.S. at 242; Chin, 965 F.3d at 48.
70 United States v. Stepanets, 989 F.3d 88, 108 (1st Cir. 2021) (“While the Supreme Court has made clear that it is not
enough to show that the acts extended over a few weeks or months, we have previously recognized that a twenty-one
month period is longer than what the Supreme Court has required.” (citing H.J., Inc. 492 U.S. at 242, and Efron v
Embassy Suites (P.R.), Inc., 223 F.3d 12, 17 (1st Cir. 2000))); D & T Partners, 98 F.4th at 206 (“[W]e have presumed
that more than a year of racketeering acts constitute a ‘substantial period of time.’”); UMB Bank, 89 F.4th at 1056
(“There was no closed-end continuity because this requires related acts continuing over a period of time lasting at least
one year.”); Cisneros v. Petland, Inc., 972 F.3d 1204, 1216 (11th Cir. 2020) (“We measure a ‘substantial period of time’
in years, not in weeks.... ‘The overwhelming weight of case authority suggest that nine months is not an adequately
substantial period of time.’” (quoting Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1267 (11th Cir. 2004))); Reich
v. Lopez, 858 F.3d 55, 60 (2d Cir. 2017) (“As such, closed-ended continuity is ‘primarily a temporal concept,’ and it
requires that the predicate crimes extend ‘over a substantial period of time.’ Predicate acts separated by only a few
months will not do; this Circuit generally requires that the crimes extend over at least two years.” (first quoting Spool v.
World Child Int’l Adoption Agency, 520 F.3d 178, 184 (2d Cir. 2008), then quoting H.J., Inc., 492 U.S. at 242);
Grubbs v. Sheakley Grp., Inc., 807 F.3d 785, 804–05 (6th Cir. 2015) (predicate offenses over an eight-month period
were not sufficient to show closed-ended continuity); Stonebridge Collection, Inc. v. Carmichael, 791 F.3d 811, 823
(8th Cir. 2015) (emphasis added) (“Continuity can be shown by related acts continuing over a period of time lasting at
least one year (closed ended continuity), or by acts which by their very nature threaten repetition (open ended
continuity)”); United States v. Wilson, 605 F.3d 985, 1021 (D.C. Cir. 2010) (fifteen months, sufficient); Spool, 520
F.3d at 184 (sixteen months, insufficient); Jennings v. Auto Meter Prods., Inc., 495 F.3d 466, 474–75 (7th Cir. 2007)
(ten months, insufficient); North Bridge Assocs., Inc. v. Boldt, 274 F.3d 38, 43 (1st Cir. 2001) (four months,
insufficient).
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indefinitely into the future, and thus supply the requisite threat of continuity. In other cases, the
threat of continuity may be established by showing that the predicate acts or offenses are part of
an ongoing entity’s regular way of doing business.”71 The threat “is generally presumed when the
enterprise’s business is primarily or inherently unlawful.”72
D. Collection of an Unlawful Debt
Collection of an unlawful debt may trigger RICO criminal and civil liability in either of two
ways. First, each of the substantive RICO offenses is predicated on either “a pattern of
racketeering activity” or upon the “collection of an unlawful debt.”73 Collection of unlawful debt
appears to be the only instance in which the commission of a single predicate offense will support
a RICO prosecution or cause of action. No proof of pattern seems to be necessary.74
The predicate covers only the collection of usurious debts or unlawful gambling debts:
“[U]nlawful debt” means a debt (A) incurred or contracted in gambling activity which was
in violation of the law of the United States, a State or political subdivision thereof, or which
is unenforceable under State or Federal law in whole or in part as to principal or interest
because of the laws relating to usury, and (B) which was incurred in connection with the
business of gambling in violation of the law of the United States, a State or political
subdivision thereof, or the business of lending money or a thing of value at a rate usurious
under State or Federal law, where the usurious rate is at least twice the enforceable rate.75
Second, the collection of an unlawful debt, when coupled with the threat of harm, constitutes an
extortionate credit transaction (loan sharking), a separate criminal offense.76 This criminal offense
71 H.J., Inc., 492 U.S. at 242; D & T Partners, 98 F.4th at 208 (Open-ended continuity “exists when a threat of
continuing criminal activity extends indefinitely into the future. To establish this element, plaintiffs must show that the
predicate acts ‘are a regular way of conducting defendant’s ongoing legitimate business ... or of conducting or
participating in an ongoing and legitimate RICO enterprise.’”) (quoting H.J., Inc., 492 U.S. at 243); Cisneros, 972 F.3d
at 1216; United States v. Cadden, 965 F.3d 1, 16 (1st Cir. 2020) (“There are at least two types of racketeering
enterprises that, by their nature, extend into the future and therefore demonstrate open-ended continuity: those that
‘involve a distinct threat of long-term racketeering activity, either implicit or explicit’ and those where ‘the predicate
acts or offenses are part of an ongoing entity’s regular way of doing business.’” (quoting H.J., Inc., 492 U.S. at 243)).
72 Spool,, 520 F.3d at 185; cf. United States v. Burden, 600 F.3d 204, 219 (2d Cr. 2010).
73 E.g., 18 U.S.C. § 1962(a) (“It shall be unlawful for any person who has received any income derived ... from a
pattern of racketeering activity or through collection of an unlawful debt ... to use ... any part of such income ... in
acquisition of any enterprise.... ”); subsections 1962(b) and (c) are similarly worded.
74 United States v. Grote, 961 F.3d 105, 119 (2d Cir. 2020); Goldenstein v. Repossessors Inc., 815 F.3d 142, 147–48
n.5 (3d Cir. 2016); United States v. Oreto, 37 F.3d 739, 751 (1st Cir. 1994); United States v. Aucoin, 964 F.2d 1492,
1495–497 (5th Cir. 1992) (quoting dicta in H.J., Inc., 492 U.S. at 232 (1989)); Dillon v. BMO Harris Bank, N.A., 16 F.
Supp. 3d 605, 618 (M.D.N.C. 2014); but see, Wright v. Shepard, 919 F.2d 665, 673 (11th Cir. 1990).
Oreto also rejected the argument to the effect that the equal protection clause precludes requiring proof of only a single
loansharking violation while demanding proof of the patterned commission of at least two violations for every other
predicate offense, 37 F.3d at 751–52 (“Congress could rationally have decided that collections of unlawful debt were
central to the evils at which RICO was directed. Accordingly, it could rationally have chosen to make guilt more easily
provable in unlawful debt cases than in cases involving other forms of racketeering activity.”).
75 18 U.S.C. § 1961(6); e.g., United States v. Moseley, 980 F.3d 9, 18 (2d Cir. 2020) (“[C]onvicting a defendant of an
‘unlawful debt’ RICO violation in connection with a usurious loan to a borrower domiciled in New York requires proof
of five elements: ‘[1] that a debt exist, [2] that it was unenforceable under New York ‘s usury laws; [3] that it was
incurred in connection with the business of lending money at more than twice the legal rate, [4] that the defendant
aided collection of the debt in some manner, and [5] that the defendant acted knowingly, willfully and unlawfully.’”)
(quoting United States v. Biasucci, 786 F.2d 504, 513 (2d Cir. 1986)); Home Orthopedics Corp. v. Rodriguez, 781 F.3d
521, 528 n.8 (1st Cir. 2015); Cmty. State Bank v. Strong, 651 F.3d 1241, 1259 (11th Cir. 2011) (usurious non-gambling
debt).
76 18 U.S.C. §§ 891–896.
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falls within the definition of racketeering activity,77 but collection of an unlawful debt may also
trigger RICO liability without the otherwise necessary “pattern of racketeering activity.”78
E. Enterprise in or Affecting Interstate or Foreign Commerce
1. Enterprise
The statute defines “enterprise” to include “any individual, partnership, corporation, association,
or other legal entity, and any union or group of individuals associated in fact although not a legal
entity.”79 The enterprise may be devoted to entirely legitimate ends or to totally corrupt
objectives.80 It may be governmental as well as nongovernmental.81 As noted earlier, an entity
may not serve as both the “person” and the “enterprise” whose activities are conducted through a
pattern of racketeering activity for a prosecution under subsection 1962(c).82 No such distinction
is required, however, for a prosecution under either subsection 1962(a) (investing the racketeering
activity proceeds in an enterprise) or subsection 1962(b) (acquiring or maintaining an enterprise
through racketeering activity) violations.83 Even under subsection 1962(c), a corporate entity and
its sole shareholder are sufficiently distinct to satisfy the “enterprise” and “person” elements of a
subsection (c) violation.84
As for “associated in fact” enterprises, the Supreme Court in Boyle v. United States rejected the
suggestion that such enterprises must be “business-like” creatures, having discernible hierarchical
structures, unique modus operandi, chains of command, internal rules and regulations, regular
meetings regarding enterprise activities, or even a separate enterprise name or title.85 The statute
demands only “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.”86
77 Id. § 1961.
78 E.g., United States v. Gjeli, 867 F.3d 418, 420 & n.2 (3d Cir. 2017); Mitchell v. First Call Bail and Surety, Inc., 412
F. Supp. 3d 1208, 1226 (D. Mont. 2019).
79 18 U.S.C. § 1961(4); Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020).
80 United States v. Turkette, 452 U.S. 576, 580–93 (1981); United States v. Palacios, 677 F.3d 234, 248 (4th Cir. 2012);
United States v. Cianci, 378 F.3d 71, 83 (1st Cir. 2004).
81 United States v. Warner, 498 F.3d 666, 694 (7 th Cir. 2007) (state); Cianci, 378 F.3d at 83 (mayor’s office); DeFalco
v. Bernas, 244 F.3d 286, 307–08 (2d Cir. 2001) (town); United States v. Massey, 89 F.3d 1433, 1440 (11th Cir. 1995)
(state court); Pelfresne v. Village of Rosemont, 22 F. Supp. 2d 756, 761–62 (N.D. Ill. 1998) (mayor’s office); cf.
Salinas v. United States, 522 U.S. 52 (1997) (sheriff’s office).
82 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001); Bible v. United Student Aid Funds, Inc., 799
F.3d 633, 655 (7th Cir. 2015); Abraham v. Singh, 480 F.3d 351, 357 (5th Cir. 2007); Living Designs, Inc. v. E.I. Dupont
de Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005); Branon v. Boatmen’s First Nat’l Bank, 153 F.3d 1144, 1146
(10th Cir. 1998); United States v. London, 66 F.3d 1227, 1244 (1st Cir. 1995).
83 Gentry v. Resolution Trust Corp., 937 F.2d 899, 907 (3d Cir. 1991); Crowe v. Henry, 43 F.3d 198, 205 (5th Cir.
1995); In re Managed Care Litigation, 150 F. Supp. 2d 1330, 1351 (S.D. Fla. 2001); cf. Churchill Vill., L.L.C. v. Gen.
Elec., 361 F.3d 566, 574–75 (9th Cir. 2004).
84 Cedric Kushner Promotions, Ltd., 533 U.S. at 161; Living Designs, Inc., 431 F.3d at 361; First Cap. Asset Mmgt. v.
Satinwood, Inc., 385 F.3d 159, 173 (2d Cir. 2004).
85 Boyle v. United States, 556 U.S. 938, 948 (2009); see also United States v. Brown, 973 F.3d 667, 682 (7th Cir. 2020).
86 Boyle, 556 U.S. at 946; see also McClaren, 998 F.3d at 217; United States v. Cruz-Ramos, 987 F.3d 27, 36 (1 st Cir.
2020); United States v. Williams, 974 F.3d 320, 368–69 (3d Cir. 2020); Brown, 973 F.3d at 682; Cisneros v. Petland,
972 F.3d 1204, 1211 (11th Cir. 2020); United States v. Mathis, 932 F.3d 242, 259 (4th Cir. 2019); Ouwinga v. Benistar
419 Plan Services, Inc., 694 F.3d 783, 794 (6th Cir. 2012); Crest Constr. II v. Doe, 660 F.3d 346, 354 (8th Cir. 2011).
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“Although the evidence establishing an enterprise and a pattern of racketeering activity ‘may in
particular cases coalesce,’ the two elements themselves remain ‘at all times’ distinct.”87
2. In or Affecting Interstate or Foreign Commerce
To satisfy RICO’s jurisdictional element, the corrupt or corrupted enterprise must either engage in
interstate or foreign commerce or engage in activities that affect interstate or foreign commerce.88
An enterprise that orders supplies and transports its employees and products in interstate
commerce is “engaged in interstate commerce” for purposes of RICO,89 as is an enterprise that
uses telephones, the mail, or internet communications.90 Generally, the impact of the enterprise on
interstate or foreign commerce need only be minimal to satisfy RICO requirements.91 Where the
predicate offenses associated with an enterprise have an effect on interstate commerce, the
enterprise is likely to have an effect on interstate commerce.92 However, “where the enterprise
itself [does] not engage in economic activity, a minimal effect on commerce” may not be
enough.93
III. RICO Abroad
Generally, “[a]bsent clearly expressed congressional intent to the contrary, federal laws will be
construed to have only domestic application.... When a statute gives no clear indication of an
extraterritorial application, it has none.”94 The Supreme Court in RJR Nabisco, Inc. v. Eurpean
Community provided guidance on the application of this general presumption to RICO. The Court
held that RICO’s criminal prohibitions apply abroad when they are grounded on a predicate
87 Williams, 974 F.3d at 369 (quoting United States v. Turkette, 452 U.S. 576, 583 (1981)).
88 18 U.S.C. § 1962(a), (b), (c).
89 United States v. Robertson, 514 U.S. 669, 671–72 (1995); see also United States v. Velasquez, 881 F.3d 314, 329 (5th
Cir. 2018); United States v. Keltner, 147 F.3d 662, 669 (8th Cir. 1998) (multistate travel by the participants in
furtherance of the enterprise’s activities with RICO predicates committed in more than one state).
90 Velasquez, 881 F.3d at 329 (“Use of instrumentalities of interstate commerce such as telephones, the U.S. Postal
Service, and pagers to communicate in furtherance of the enterprise’s criminal purposes can also constitute the
enterprise affecting interstate commerce.”).
91 McClaren, 998 F.3d at 217; United States v. Millán-Machuca, 991 F.3d 7, 18 (1st Cir. 2021) (“The enterprise must be
one affecting interstate or foreign commerce, but it need only have a de minimis effect on interstate or foreign
commerce to demonstrate the required nexus.”); United States v. Zelaya, 908 F.3d 920, 926 (4th Cir. 2018) (“MS-13 is
an enterprise with at least a de minimis effect on interstate commerce.”); United States v. Garcia, 793 F.3d 1194, 1210
(10th Cir. 2015) (“Most other circuits, however, have held that RICO requires only a minimal effect on interstate
commerce.”); United States v. Flores, 572 F.3d 1254, 1267 (11th Cir. 2009); United States v. Gardiner, 463 F.3d 445,
458 (6th Cir. 2006); United States v. Johnson, 440 F.3d 832, 841 (7th Cir. 2006); United States v. Rodriguez, 360 F.3d
949, 955 (9th Cir. 2004); United States v. Miller, 116 F.3d 641, 673–74 (2d Cir. 1997).
92 United States v. White, 116 F.3d 903, 925–26 (D.C. Cir. 1997); United States v. Miller, 116 F.3d 641, 673–74 (2d
Cir. 1997).
93 Waucaush v. United States, 380 F.3d 251, 256 (6th Cir. 2004).
94 RJR Nabisco, Inc. v. Eur. Cmty, 579 U.S 325, 335 (2016) (quoting Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247,
255 (2010)).
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offense that has extraterritorial application,95 but that RICO’s civil liability provision applies only
to injuries suffered domestically.96
IV. Consequences
The commission of a RICO violation exposes offenders to a wide range of criminal and civil
consequences: imprisonment, fines, restitution, forfeiture, treble damages, attorneys’ fees, and a
wide range of equitable restrictions.
A. Criminal Liability
RICO violations are punishable by fine or by imprisonment for life in cases where the predicate
offense carries a life sentence, or by imprisonment for not more than twenty years in all other
cases.97 Although an offender may be sentenced to either a fine or a term of imprisonment under
the strict terms of the statute, the operation of the applicable sentencing guidelines makes it
highly likely that offenders will face both fine and imprisonment.98 The maximum amount of the
95 Id. at 339 (“Congress’s incorporation of these (and other) extraterritorial predicates into RICO gives a clear,
affirmative indication that § 1962 applies to foreign racketeering activity – but only to the extent that the predicates
allege in a particular case themselves apply extraterritorially.”); see also United States v. Perez, 962 F.3d 420, 440 (9 th
Cir. 2020) (overturning a RICO conspiracy conviction because of an erroneous jury instruction stating that RICO
applied extraterritorially and failing to note the requirement that the underlying predicate offense must apply abroad).
The Supreme Court’s endorsement was not without reservation, RJR Nabisco, 579 U.S. at 341, 345 (“[W]e assume
without deciding that respondents have pleaded a domestic investment of racketeering income in violation of § 1962(a)
... and assume without deciding that § 1962(d)’s extraterritoriality tracks that of the [predicate] provision underlying the
alleged conspiracy.... [We] assume without deciding that the alleged pattern of racketeering activity consists entirely of
predicate offenses that were either committed in the United States or committed in a foreign country in violation of a
predicate statute that applies extraterritorially.... On these premises respondents’ allegations that RJR violated §§
1962(b) and (c) do not involve an impermissible extraterritorial application of RICO.” (emphasis added)).
96 Id. at 346 (“Irrespective of any extraterritorial application of § 1962, we conclude that § 1964(c) does not overcome
the presumption against extraterritoriality. A private RICO plaintiff therefore must allege and prove a domestic injury
to its business or property.”); see also Yegiazaryan v. Smargin, 599 U.S. 533, 537 (2023); Bascuñán v. Elsaca, 927
F.3d 108, 117 (2d Cir. 2019) (“Whether an injury is domestic will, as a general matter, depend on the particular facts
alleged in each case. Absent extraordinary circumstances, when a foreign plaintiff maintains tangible property in the
United States, the misappropriation of that property constitutes a domestic injury.” (citations omitted)); Humphrey v.
GlaxoSmithKline PLC, 905 F.3d 694, 706–707 (3d Cir. 2018) (“[T]he analysis of whether a plaintiff has alleged a
domestic injury must focus principally on where the plaintiff has suffered the alleged injury.... Whether an alleged
injury to an intangible interest was suffered domestically is a particular fact-sensitive question requiring consideration
of multiple factors. These include, but are not limited to, where the injury itself arose, the location of the plaintiffs
residence or principal place of business; where the alleged services were provided; where the plaintiff received or
expected to receive the benefits associated with providing such services; where any relevant business agreements were
entered into and the laws binding such agreements; and the location of the activities giving rise to the underlying
dispute.”).
97 18 U.S.C. § 1963(a).
98 U.S.S.G. § 2E1.1. Federal courts were at one time required to sentence an offender within the range provided by the
United States Sentencing Guidelines, unless the court found that the case involved factors not sufficiently considered in
the Guidelines, 18 U.S.C. § 3553(b)(2000). The once-mandatory Guidelines are now advisory, but continue to carry
considerable weight, United States v. Booker, 543 U.S. 220, 264 (2005) (“The district courts, while not bound to apply
the Guidelines, must consult those Guidelines and take them into account when sentencing.”); Gall v. United States,
552 U.S. 38, 50–53 (2007) (holding that district courts must begin the sentencing process by calculating the sentencing
range recommended by the Guidelines and justify a deviation from the recommended range); United States v.
Christensen, 828 F.3d 763, 815 (9th Cir. 2015) (“A sentence may be set aside if substantively unreasonable or if
procedurally erroneous in a way that is not harmless. Procedural error includes failing to calculate or calculating
incorrectly the proper Guidelines range, failing to consider the factors outlined in 18 U.S.C. § 3553(a), choosing a
sentence based on clearly erroneous facts, or failing to explain the sentence selected.”).
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fine for a RICO violation is the greater of twice the amount of the gain or loss associated with the
crime, or $250,000 for an individual, $500,000 for an organization.99 Offenders sentenced to
prison are also sentenced to a term of supervised release of not more than three years to be served
following their release from incarceration.100 Most RICO violations also trigger mandatory
federal restitution provisions, that is, one of the RICO predicate offenses will be a crime of
violence, drug trafficking, or a crime with respect to which a victim suffers physical injury or
pecuniary loss.101 Finally, property related to a RICO violation is subject to confiscation.102
Even without a completed RICO violation, committing any crime designated a RICO predicate
offense opens the door to additional criminal liability. It is a twenty year felony to launder the
proceeds from any predicate offense (including any RICO predicate offense) or to use them to
finance further criminal activity.103 The proceeds of any RICO predicate offense are subject to
civil forfeiture (confiscation without a criminal conviction) by virtue of the RICO predicate’s
status as a money laundering predicate.104
B. Civil Liability
RICO violations may result in civil as well as criminal liability. “Any person injured in his
business or property by reason” of a RICO violation has a cause of action for treble damages and
99 18 U.S.C. §§ 1963(a), 3571.
100 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor
may include as part of the sentence a requirement that the defendant be placed on a term of supervised release after
imprisonment.... ”); id. § 3559(a)(3). Although the language of the statute is discretionary, the Sentencing Guidelines
require a term of supervised release in cases in which the term of imprisonment imposed is more than a year U.S.S.G. §
5d1.1(a).,
101 18 U.S.C. § 3663A. Restitution in other cases is discretionary, 18 U.S.C. § 3663.
102 18 U.S.C. § 1963(a) (“Whoever violates any provision of section 1962 ... shall forfeit to the United States,
irrespective of any provision of State law – (1) any interest the person has acquired or maintained in violation of section
1962; (2) any – (A) interest in; (B) security of; (C) claim against; or (D) property or contractual right of any kind
affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted,
or participated in the conduct of, in violation of section 1962; and (3) any property constituting, or derived from, any
proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in
violation of section 1962.... ”).
103 18 U.S.C. § 1956 (“(a)(1) Whoever, knowing that the property involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity - (A)(i) with the intent to promote the carrying on of specified
unlawful activity; or ... (B) knowing that the transaction is designed in whole or in part - (i) to conceal or disguise the
nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity ... shall be
sentenced to a fine ... or imprisonment for not more than twenty years, or both.... (c) As used in this section ... (7) the
term ‘specified unlawful activity’ means – (A) any act or activity constituting an offense listed in section 1961(1) of
this title except an act which is indictable under subchapter II of chapter 53 of title 31 [relating to financial transaction
reporting requirements].... ”).
104 18 U.S.C. § 981(“(a)(1) The following property is subject to forfeiture to the United States ... (C) Any property, real
or personal, which constitutes or is derived from proceeds traceable to a violation of ... any offense constituting
‘specified unlawful activity (as defined in section 1956(c)(7) of this title).... ”). “Specified unlawful activity” includes
any offense from the RICO predicate offense list in § 1961(1), 18 U.S.C. § 1957(c)(7)(A). For a general overview of
federal forfeiture law, see CRS Report 97-139, Crime and Forfeiture by Charles Doyle (2023).
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attorneys’ fees.105 No prior criminal conviction is required, except in the case of certain securityfraud-based causes of action.106
Liability begins with a RICO violation under subsections 1962(a), (b), (c), or (d). If the
underlying violation involves subsection 1962(a) (use of predicate-offense-tainted proceeds to
acquire an interest in an enterprise), it is the use or investment of the income rather than the
predicate offenses that must have caused the injury.107
If the underlying violation involves subsection 1962(b) (use of predicate offenses to acquire an
enterprise), it is the access or control of the RICO enterprise rather than the predicate offenses
that must have caused the injury.108
If the underlying violation involves subsection 1962(c) (use of the patterned commission of
predicate offenses to conduct the activities of an enterprise), it is the use of the patterned
commission of the predicate offenses to operate the enterprises’ activities that must have caused
the injury.109
105 18 U.S.C. § 1964(c) (“Any person injured in his business or property by reason of a violation of section 1962 of this
chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he
sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon any conduct
that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.
The exception contained in the preceding sentence does not apply to an action against any person that is criminally
convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which
the conviction becomes final.”).
106 Sedima S.P.R.L. v. Imrex Co, Inc., 473 U.S. 479, 493 (1985); Smith v. Husband, 376 F. Supp. 2d 603, 613 (E.D.
Va. 2005).
107 N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 202 (5th Cir. 2015) (“To state a claim under
§ 1962(a), North Cypress had to plead: (1) the existence of an enterprise, (2) the defendant’s derivation of income from
a pattern of racketeering activity, and (3) the use of any part of that income in acquiring an interest in or operating the
enterprise. Additionally, North Cypress had to show a nexus between the claimed violations and the injury. The injury
must flow from the use or investment of racketeering income. Alleging an injury solely from the predicate racketeering
acts themselves is not sufficient.... ” (internal quotation marks omitted)); Eur. Cmty v. RJR Nabisco, Inc., 764 F.3d
129, 138 n.5 (2d Cir. 2014), rev’d on other grounds sub nom., RJR Nabisco v. Eur. Cmty., 579 U.S. 325, 355 (2016);
Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 398 (7th Cir. 2009); Myers v. Provident Life and Accident Ins. Co., 472
F. Supp. 3d 1149, 1174 (M.D. Fla. 2020) (“[T]he majority of courts that have addressed the issue have determined that
a claimant under § 1962(a) must plead an injury which stems ‘not from the racketeering predicate acts themselves,’ but
from the use or investment of racketeering income.” ); In re Nat’l Prescription Opiate Litig., 452 F. Supp. 3d 745, 772
(N.D. Ohio 2020); In re Honey Transshipping Litig., 87 F. Supp. 3d 855, 865–66 (N.D. Ill. 2015); Macauley v. Est. of
Nicholas, 7 F. Supp. 3d 468, 484–85 (E.D. Pa. 2014).
108 D’Addario v. D’Addario, 901 F.3d 80, 97 (2d Cir. 2018) (“Our Circuit, like many others, requires a plaintiff who
brings a civil RICO claim for a 1962(b) violation to demonstrate an injury arising from the defendants’ acquisition of
an interest in, or maintenance of control over, an alleged enterprise.”); N. Cypress, 781 F.3d at 202 (“To state a claim
under § 1962(b), North Cypress had to show that its injuries were proximately caused by a RICO person gaining an
interest in, or control of, the enterprise through a pattern of racketeering activity—a nexus requirement. The district
court found that North Cypress did not successfully plead a nexus between its claimed injuries and Cigna’s acquisition
or maintenance of an interest in the enterprise.... The district court was correct in dismissing this claim.”); Puerto Rico
Medical Emergency Grp., Inc. v. Iglesia Episcopal Puertorriqueña, Inc., 118 F. Supp. 3d 447, 459 (D.P.R. 2015) (“[T]o
state a section 1962(b) claim, a plaintiff must allege that it was injured ‘by reason of [the defendant’s] acquisition or
maintenance of control of an enterprise through a pattern of racketeering activity.’ It is not enough for a plaintiff to
allege an injury caused by defendant’s predicate acts of racketeering.” (quoting Compagnie De Reassurance D’Ile de
France v. N.E. Reinsurance Corp., 57 F.3d 56, 92 (1st Cir. 1995))).
109 Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 647 (2008) (“RICO provides a private right of action for
treble damages to any person injured in his business or property by reason of the conduct of a qualifying enterprise’s
affairs through a pattern of [predicate] acts.... ”); see also Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir.
2020) (“A private plaintiff suing under the civil provisions of RICO must plausibly allege six elements: that the
defendants: (1) operated or managed (2) an enterprise (3) through a pattern (4) of racketeering activity that included at
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If the underlying violation involves subsection 1962(d) (conspiracy to violate subsections
1962(a), (b), or (c)), the injury must flow from the conspiracy. Although a criminal conspiracy
prosecution under subsection 1962(d) requires no overt act, RICO plaintiffs whose claim is based
on a conspiracy under subsection 1962(d) must prove an overt act that is a predicate offense or
one of the substantive RICO offenses, since a mere agreement cannot be the direct or proximate
cause of an injury.110
To recover, a plaintiff must establish an injury to his or her business or property directly and
proximately caused by the defendant’s RICO violation.111 The presence of an intervening victim
or cause of the harm is fatal.112 A couple of lower federal appellate courts “have identified in
[Holmes, Anza, and Hemi Grp.] three functional factors” that may foretell the absence of
proximate cause under RICO. “These are (1) ‘concerns about proof’ because the less direct an
injury is, the more difficult it becomes to ascertain the amount of the plaintiff’s damages
attributable to the violation, as distinct from other independent factors; (2) concerns about
admissibility and the avoidance of multiple recoveries; and (3) a societal interest in deterring
illegal conduct and whether that interest would be served in a particular case.”113 Thus, “a link
least two predicate acts of racketeering, which (5) caused (6) injury to the business or property of the plaintiff.”);
Abcarian v. Levine, 972 F.3d 1019, 1028 (9th Cir. 2020); Sergeants Benevolent Ass’n Health and Welfare v. SanofiAventis U.S., 806 F3d 71, 86 (2d Cir. 2015); CGC Holding Co., LLC v. Broad and Cassel, 773 F.3d 1076, 1088 (10th
Cir. 2014).
110 Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 552 (5th Cir. 2012) (“Injury caused by acts that are not racketeering
activities or otherwise wrongful under RICO will not establish a viable civil RICO claim.”); Morganroth & Morganroth
v. Norris, McLaughlin & Marcus, 331 F.3d 406, 415 (3d Cir. 2003); Bowman v. Western Auto Supply Co., 985 F.2d
383, 387–88 (8th Cir. 1993); cf. Beck v. Prupis, 529 U.S. 494, 507 (2000); Domanus v. Locke Lord, LLP, 847 F.3d 469,
479 (7th Cir. 2017).
111 18 U.S.C. § 1964(c); Molina-Aranda v. Black Magic Enters., L.L.C., 983 F.3d 779, 784 (5th Cir. 2020) (citing
Holmes v. Secs. Inv. Prot. Corp., 503 U.S. 258, 28 (1992); Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006);
and Hemi Grp, LLC v. City of New York, 559 U.S. 1, 110, 12 (2010)) (“A RICO plaintiff must also plausibly allege
that the RICO violation proximately caused the plaintiff’s injuries. The proximate causation standard in this context is
not one of foreseeability; instead, the plaintiff must demonstrate that the alleged violation led directly to the injuries. If
some other conduct directly caused the harm, the plaintiff cannot sustain a RICO claim.”); CGC Holding Co., LLC v.
Hutchens, 974 F.3d 1201, 1213 (10th Cir. 2020) (“RICO requires that a plaintiff prove both but-for and proximate
causation.”).
112 Hemi Grp. v. City of New York, 559 U.S. 1, 11 (2010) (the City, claiming that Hemi sold untaxed cigarettes to City
residents but fraudulently failed to report the sale to state authorities who then would have passed the information on to
City tax authorities, did not suffer a direct RICO injury: “the disconnect between the asserted injury and the alleged
fraud in this case is even sharper than in Anza. There, we viewed the point as important because the same party –
National Steel – had both engaged in the harmful conduct and committed the fraudulent act. We nevertheless found the
distinction between the relevant acts sufficient to defeat Ideal’s RICO claim. Here, the City’s theory of liability rests
not just on separate actions, but separate actions carried out by separate parties”) (emphasis of the Court); Anza v.
Ideal Steel Supply Corp., 547 U.S. 451, 460–61 (2006) (competitors, claiming that Anza could lower prices because he
failed to collect sales tax from cash customers and then used mail and wire fraud to cover his tax evasion, did not suffer
a direct or proximate RICO injury); Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 265–68 (1992) (the Corporation,
that reimbursed the customers of defaulting brokers following the defendant’s alleged stock manipulation, did not
suffer a direct or proximate RICO injury); Molina-Aranda, 983 F.3d at 784; see generally CRS Report RS22470, Civil
RICO and Standing: Anza v. Ideal Steel Supply Corporation (2006).
113 Sterling Suffolk Racecourse, LLC v. Wynn Resorts, Ltd., 990 F.3d 31, 35–36 (1st Cir. 2021) (“This court has
identified in [Holmes, Anza, and Hemi Grp.] ‘three functional factors with which to assess whether proximate cause
exist under RICO.’ These are (1) ‘concerns about proof’ because ‘the less direct an injury, is the more difficult it
becomes to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other,
independent, factors,’; (2) ‘concerns about administrability and the avoidance of multiple recoveries,’; and (3) ‘the
societal interest in deterring illegal conduct and whether that interest would be served in a particular case,’.... ”
(citations omitted) (first quoting In re Neurontin Mktg. & Sales Pracs. Litig., 712 F.3d 21, 35–36 (1st Cir. 2013), then
quoting Hemi Grp.,, 559 U.S. at 9; then quoting Holmes, 503 U.S. at 271)); St. Luke’s Health Network, Inc. v.
Lancaster Gen. Hosp., 967 F.3d 295, 300–01 (3d Cir. 2020) (“The Supreme Court has also articulated three judicially
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between the RICO predicate acts and plaintiff’s injuries that is ‘too remote,’ ‘purely continent,’ or
‘indirect’ is insufficient to show proximate cause.”114 The courts agree generally that personal
injuries may not form the basis for recovery, since they are not injuries to “business or
property.”115 “This does not preclude recovery for all economic harms that result from personal
injuries.”116
“Fraud in the sale of securities” is a RICO predicate offense.117 However, the Private Securities
Litigation Reform Act amended the civil RICO cause of action to bar suits based on allegations of
fraud in the purchase or sale of securities.118 In other private civil RICO cases, Rule 9(b) of the
Federal Rules of Civil Procedure demands that plaintiffs plead allegations of fraud with
particularity.119
Although the United States is apparently not a “person” that may sue for treble damages under
RICO,120 the term does include state and local governmental entities.121 On the other hand, private
parties have enjoyed scant success when they have sought to bring a RICO suit for damages
practicable reasons for requiring directness of injury. First, ‘indirect injuries make it difficult to ascertain the amount of
a plaintiff’s damages attributable to the violation, as distinct from other, independent factors.’ Second, and relatedly,
indirect injuries risk double recovery so the ‘courts would have to adopt complicated rules apportioning damages to
guard against this risk.’ Third, directly injured victims can be counted on and are best positioned to ‘vindicate the law
as private attorneys general,’ so there is no need to extend civil RICO’s private right of action to those whose injuries
are more remote.” (quoting Holmes, 503 U.S. at 269–70)).
114 Sterling Suffolk Racecourse, LLC, 990 F.3d at 35 (quoting Hemi Grp., 559 U.S. at 9); St. Luke’s Health Network,
Inc., 967 F.3d at 301 (“To demonstrate ‘some direct relation between the injury asserted and the injurious conduct
alleged,’ the manipulation alleged must not be ‘purely contingent’ on another event or action.... [T]he cause of an
injury that is ‘entirely distinct from the alleged RICO violation’ may be too attenuated to meet the proximate causation
requirement. Relatedly, a more direct victim of the purported violation or independent, intervening factors may also
break the chain of causation.” (citations omitted) (first quoting Holmes, 503 U.S. at 271, then quoting Anza, 547 U.S. at
458)).
115
RJR Nabisco. Inc. v. Eur. Cmty, 579 U.S. 325, 350 (2016); Bascuñán v. Elsaca, 874 F.3d 806, 817 (2d Cir. 2017);
Sabrina Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 590 (7th Cir. 2017); Safe Streets Alliance v.
Hickenlooper, 859 F.3d 865, 888–89 (10th Cir. 2017); Blevins v. Aksut, 849 F.3d 1016, 1021 (11th Cir. 2017).
116 Medical Marijuana, Inc. v. Horn, 145 S. Ct. 931, 946 (2025).
117 18 U.S.C. § 1961(1)(D).
118 18 U.S.C. § 1964(c) (“Any person injured in his business or property by reason of a violation of section 1962 of this
chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he
sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon any conduct
that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.
The exception contained in the preceding sentence does not apply to an action against any person that is criminally
convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which
the conviction becomes final.” (emphasis added)).
119 Humana Inc. v. Biogen, Inc., 126 F.4th 94, 103 (1st Cir. 2025); Muskegan Hotels, LLC v, Patel, 986 F.3d 692, 698
(7th Cir. 2021) (“Where, as here, the alleged predicate acts of racketeering involve fraud, the complaint must describe
the ‘who, what, where, and how’ of the fraudulent activity to meet the heightened pleading standard demanded by Rule
(b)); Molina-Aranda v. Black Magic Enters., L.L.C., 983 F.3d 779, 784 (5th Cir. 2020); Cisneros, 972 F.3d at 1215
(“Like any allegation of fraud, Cisneros’s alleged [mail and wire fraud] predicate acts must satisfy the heightened
pleading standards embodied in Federal Rule of Civil Procedure 9(b), which requires the plaintiff to ‘state with
particularity the circumstances constituting fraud.’”).
120 United States v. Bonanno Organized Crime Fam., 879 F.2d 20, 21–27 (2d Cir. 1989); Peia v. United States, 152 F.
Supp. 2d 226, 234 (D. Conn. 2001).
121 City of New York v. Smokes-Spirits.Com, Inc., 541 F.3d 425, 444–45 (2d Cir. 2008), rev’d on other grounds sub
nom., Hemi Grp. v. City of New York, 559 U.S. 1, 11 (2010); County of Oakland v. City of Detroit, 866 F.2d 839, 851
(6th Cir. 1989); Illinois Department of Revenue v. Phillips, 771 F.2d 312, 316–17 (7th Cir. 1985). Some courts,
however, believe that a governmental entity may only sue under RICO for injuries related to a commercial transactions,
Canyon Cnty. v. Syngenta Seeds, Inc., 519 F.3d 969, 976 (9th Cir. 2008); Township of Marlboro v. Scannapieco, 545 F.
Supp. 2d 452, 458 (D.N.J. 2008) (citing dicta subsequently repudiated in Smokes-Spirits.Com, Inc.).
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against the United States or other governmental entities.122 Nor in most instances have the courts
been receptive to RICO claims based solely on allegations that the defendant aided and abetted
commission of the underlying RICO violation.123
Notwithstanding the inability of the United States to sue for treble damages under RICO, the
Attorney General may seek to prevent and restrain RICO violations under the broad equitable
powers vested in the courts to order disgorgement, divestiture, restitution, or the creation of
receiverships or trusteeships.124 The government has invoked this authority relatively
122 Ivanenko v. Yanukovich, 995 F.3d 232, 234–35 (D.C. Cir. 2021) (foreign government); Pedrina v. Chun, 97 F.3d
1296, 1300 (9th Cir. 1996) (municipality); McNeily v. United States, 6 F.3d 343, 350 (5th Cir. 1993) (Federal Deposit
Insurance Corp.); Genty v. Resol. Trust Corp., 937 F.2d 899, 908–14 (3d Cir. 1991) (municipality); Berger v. Pierce,
933 F.2d 393, 397 (6th Cir. 1991) (Federal Insurance Administration); Smith v. Babbitt, 875 F. Supp. 1353, 1365 (D.
Minn. 1995), aff’d, 100 F.3d 556 (8th Cir. 1996) (Indian tribal government); McMaster v. State of Minnesota, 819 F.
Supp. 1429, 1434 (D. Minn. 1993), aff’d, 30 F.3d 976 (8th Cir. 1994) (state); Keller v. Centrl. Bank of Nigeria, 277
F.3d 811 (6th Cir. 2002), abrogated by, Samantar v. Yousuf, 560 U.S. 305 (2010) (foreign governmental entity);
Donahue v. F.B.I., 204 F. Supp. 2d 169 (D. Mass. 2002), rev’d sub nom., Donahue v. U.S. 634 F.3d 615 (1st Cir. 2011);
Banks v. Dep’t of Motor Vehicles, 419 F. Supp. 2d 1186, 1192 (C.D. Cal. 2006).
123 Eliahu v. Jewish Agency for Israel, 919 F.3d 709, 713 (2d Cir. 2019) (“There is no private cause of action ... for
aiding and abetting a civil RICO violation.”); see also Pa. Assoc’n of Edwards Heirs v. Rightenour, 235 F.3d 839, 843
(3d Cir. 2000); Cobbs v. Sheahan, 385 F. Supp. 2d 731, 738 (N.D. Ill. 2005) (“Many courts have applied the logic of
Central Bank [of Denv., N.A. v. First Interstate Bank of Denv., N.A., 511 U.S. 164 (1994)] to RICO and concluded that
§ 1962(c) does not provide for [civil] aiding and abetting liability.”); In re Chrysler-Dodge-Jeep Ecodiesel Mktg. Sales
Pracs. and Prod. Liability Litig., 295 F. Supp. 3d 927, 984 (N.D. Cal. 2018) (“Plaintiffs also seek to hold the Bosch
defendant liable for violating RICO under an aiding and abetting theory. Such a theory of liability is not available under
RICO.”); In re Trilegiant Corp. Inc., 11 F. Supp. 3d 132, 139 (D. Conn. 2014); In re Countrywide Fin. Corp. Mortg.
Mktg. and Sales Prac., 601 F. Supp. 2d 1201, 1219 (S.D. Cal. 2009); In re MasterCard Int’l Inc., Internet Gambling
Litig., 132 F. Supp. 2d 468, 493–95 (E.D.La. 2001), aff’d, 313 F.3d 257 (5th Cir. 2002); contra In re Managed Care
Litig., 298 F. Supp. 2d 1259, 1272 (S.D. Fla. 2003); First Am. Corp. v. Al-Nahyan, 17 F. Supp. 2d 10, 23–24 (D.D.C.
1998) (preliminarily finding Central Bank distinguishable, but finding it unnecessary to resolve the issue in light of the
prospect of the defendants’ RICO liability on other grounds); Am. Auto. Accessories, Inc. v. Fishman, 991 F. Supp.
987, 993 (N.D. Ill. 1998) (noting that the Seventh Circuit has yet to “comment[] on the possibility of aiding and
abetting liability in civil RICO actions.”).
124 18 U.S.C. § 1964 (“(a) The district courts of the United States shall have jurisdiction to prevent and restrain
violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any
person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the
future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the
same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or
ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons. (b)
The Attorney General may institute proceedings under this section. Pending final determination thereof, the court may
at any time enter such restraining orders or prohibitions, or take such other actions, including the acceptance of
satisfactory performance bonds, as it shall deem proper.”); e.g., Hengle v. Treppa, 19 F.4th 324, 353–54 (4th Cir. 2021);
United States v. Local 560, 780 F.2d 267, 295–96 (3d Cir. 1985) (equitable remedies available under RICO include
court authority to remove union officials and place the union in trusteeship); United States v. Sasso, 215 F.3d 283, 292
(2d Cir. 2000) (RICO grants the court authority to order a defendant to contribute to cost of monitoring a previously
corrupted union).
The courts have treated RICO requests to order disgorgement cautiously. United States v. Carson, 52 F.3d 1173, 1182
(2d Cir. 1995) (“Ordinarily, the disgorgement of gains ill-gotten long in the past will not serve the goal of ‘preventing
and restraining future violations’ unless there is a finding that the gains are being used to fund or promote the illegal
conduct, or constitute capital available for that purpose.”); Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d
345, 354–55(5th Cir. 2003) (emphasis of the court) (quoting Carson, 52 F.3d at 1182) (internal citations omitted) (“This
Court has not decided whether equitable relief is available to a private civil RICO plaintiff.... The circumstances before
us do not necessitate that we reach this question today.... The Second Circuit interpreted § 1964(a) to mean that
equitable remedies are only proper to ‘prevent and restrain future conduct rather than to punish past conduct.’ With
respect to the disgorgement remedy sought, the Second Circuit noted that disgorgement is generally available under §
1964. However, when disgorgement is sought for the purpose of compensating a party for past injuries, the court held
that the plain language of § 1964 bars relief. We agree with the Second Circuit’s reasoning in Carson.”). One circuit
has concluded that disgorgement is not a remedy available under RICO under any circumstances, United States v.
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RICO: A Sketch
infrequently, primarily to rid various unions of organized crime elements and other forms of
corruption.125 There is some question whether private plaintiffs, in addition to the Attorney
General, may seek injunctive and other forms of equitable relief for RICO violations.126
On the procedural side, RICO’s long-arm jurisdictional provisions authorize nationwide service
of process.127 In addition, the Supreme Court has held that (1) state trial courts of general
Philip Morris USA, Inc., 396 F.3d 1190, 1199 (D.C. Cir. 2005) (The order of disgorgement is not within the terms of
that statutory grant (i.e., § 1964(a)], nor any necessary implication of the language of the [RICO] statute.”); see,
Christopher L. McCall. Comment. Equity Up in Smoke: Civil RICO, Disgorgement, and United States v. Philip Morris,
74 FORDHAM L. REV. 2461 (2006).
125 E.g., Sasso, 215 F.3d 283 (2d Cir. 2000); United States v. Private Sanitation Indus. Ass’n, 995 F.2d 375 (2d Cir.
1993); United States v. Local 560, 974 F.2d 315 (3d Cir. 1992); United States v. Int’l Brotherhood of Teamsters (IBT),
931 F.2d 177 (2d Cir. 1991); United States v. Local 30, 871 F.2d 401 (3d Cir. 1989); United States v. Dougherty, 98 F.
Supp. 3d 721 (E.D. Pa. 2015).
The Teamsters cases, perhaps the best known and most heavily litigated of these instances, arose by and large under a
consent decree negotiated to settle the government’s RICO suit, rather than issues as to the government’s prerogatives
under civil RICO. United States v. IBT, 266 F.3d 45 (2d Cir. 2001); United States v. IBT, 247 F.3d 370 (2d Cir. 2001);
United States v. IBT, 172 F.3d 217, 219 (2d Cir. 1999); United States v. IBT, 170 F.3d 136, 140 (2d Cir. 1999); United
States v. IBT, 168 F.3d 645, 647 (2d Cir. 1999); United States v. Boggia, 167 F.3d 113, 113 (2d Cir. 1999); United
States v. IBT, 156 F.3d 354, 356 (2d Cir. 1998); United States v. IBT, 141 F.3d 405, 407 (2d Cir. 1998); United States
v. IBT, 120 F.3d 341, 343 (2d Cir. 1997); United States v. IBT, 86 F.3d 271, 273 (2d Cir. 1996); United States v. IBT,
19 F.3d 816, 818–19 (2d Cir. 1994); United States v. IBT, 12 F.3d 360, 361 (2d Cir. 1993); United States v. IBT, 3
F.3d 634, 636 (2d Cir. 1993); United States v. IBT, 998 F.2d 1101, 1104 (2d Cir. 1993); United States v. IBT, 998 F.2d
120, 121 (2d Cir. 1993); United States v. IBT, 986 F.2d 15, 17 (2d Cir. 1993); United States v. IBT, 981 F.2d 1362,
1364 (2d Cir. 1992); United States v. IBT, 970 F.2d 1132, 1134 (2d Cir. 1996); United States v. IBT, 968 F.2d 1506,
1508 (2d Cir. 1992); United States v. IBT, 968 F.2d 1472, 1474 (2d Cir. 1992); United States v. IBT, 964 F.2d 180, 181
(2d Cir. 1992); United States v. IBT, 955 F.2d 171, 173 (2d Cir. 1992) remanded by, 968 F.2d 1506 (2d Cir. 1992);
United States v. IBT, 950 F.2d 94, 95 (2d Cir. 1991), supplemented, 968 F.2d 1472 (2d Cir. 1991); United States v.
IBT, 931 F.2d 177, 179 (2d Cir. 1991).
The United States also called upon the authority under § 1964(a) in its RICO litigation against various tobacco
companies, United States v. Philip Morris Inc., 396 F.3d 1190, 1191 (D.C. Cir. 2005).
126 State Farm Mut. Auto. Ins.v. Tri-Bor. Med. Pract. P.C., 120 F.4th 59, 95 (2d Cir. 2024); Arunachalam v. IBM Corp.,
989 F.3d 988, 998 (Fed. Cir. 2021); Chevron Corp. v. Donziger, 833 F.3d 74, 137 (2d Cir. 2016) (“We conclude that a
federal court is authorized to grant equitable relief to a private plaintiff who has proven injury to its business or
property by reason of a defendant’s violation of § 1962, largely for the reasons stated by the Seventh Circuit opinion in
NOW 1.” (citing Nat’l Org. for Women, Inc. v. Scheidler, 267 F.3d 687, 695–700 (7th Cir. 2001) (concluding that
private RICO plaintiffs are entitle to equitable relief), rev’d on other grounds, 537 U.S. 393 (2003)); In re Managed
Care Litig., 298 F. Supp. 2d 1259, 1281–83 (S.D. Fla. 2003); contra Religious Tech. Ctr. v. Wollersheim, 796 F.2d
1076, 1088 (9th Cir. 1986) (“Taken together, the legislative history and statutory language suggest overwhelmingly that
no private equitable action should be implied under civil RICO.”); Dan River v. Icahn, 701 F.2d 278, 290 (4th Cir.
1983) (“While we do not undertake to resolve the question, nevertheless, the probability of success is affected
adversely by the very existence of the uncertainty.”); Minter v. Wells Fargo Bank, 593 F. Supp. 2d 788, 794–95 (D.
Md. 2009) (“Faced with such a split, this Court finds that the Ninth Circuit [in Wollersheim] provides a more wellreasoned and convincing argument.”).
127
18 U.S.C. § 1965. Laurel Gardens, LLC v. McKenna, 948 F.3d 105, 116–17 (3d Cir. 2020) (“There is a circuit split
regarding which specific subsection of the RICO provision governs the exercise of personal jurisdiction in this case.
Plaintiffs recognize that two circuits (the Fourth and the Eleventh Circuits) have looked to § 1965(d) [service of process
in any district in which the person resides, is found, has an agent, or does business].... Five circuits (the Second,
Seventh, Ninth, Tenth, and D.C. Circuits) have stated that subsection (b) [nation-wide service when the ‘ends of justice
require’] governs nation-wide service of process and personal jurisdiction over ‘other parties.’ We agree with the
majority approach.” (citing Republic of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 942 (11th Cir. 1997)));
Peters Broad. Eng’g, Inc. v. 24 Capital, LLC, 40 F.4 th 432, 439 (6th Cir. 2022) (adopting the majority view); Don’t
Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 1293 n.33 (11th Cir. 2021); ESAB Grp. v. IFX Mkts., Ltd., 126
F.3d 617, 626 (4th Cir. 1997); Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226, 1229–33 (10th Cir. 2006); PT United Can
Co. v. Crown Cork & Seal Co., 138 F.3d 65, 71 (2d Cir. 1998); Lisak v. Merchantile Bancorp, Inc., 834 F.2d 668, 671–
72 (7th Cir. 1987); Butchers’ Union Local 498 v. SDC Inv., Inc., 788 F.2d 535, 538–39 (9th Cir. 1986)).
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jurisdiction have concurrent jurisdiction over federal civil RICO claims;128 (2) under the
appropriate circumstances, parties may agree to make potential civil RICO claims subject to
arbitration;129 (3) in the absence of an impediment to state regulation, the McCarran-Ferguson Act
does not bar civil RICO claims based on insurance fraud allegations;130 and (4) the Clayton Act’s
four-year period of limitation applies to civil RICO claims as well,131 and that the period begins
when the victim discovers or should have discovered the injury.132
V. Violent Crimes in Aid of Racketeering (VICAR)
Violence in aid of racketeering (VICAR), under 18 U.S.C. § 1959 is a series of RICO-related
federal proscriptions that ban committing, attempting to commit, or conspiring to commit, any of
several specific violent state or federal predicate offenses with an eye to a reward from a RICO
enterprise.133 “To support a VICAR conviction, the government must show: ‘(1) that the criminal
128 Tafflin v. Lavitt, 493 U.S. 455, 458 (1990). An injured party may also have a cause of action under an applicable
state RICO statute, citations for which are appended.
129 Shearson/ Am. Express Inc. v. McMahon, 482 U.S. 220, 242 (1987); cf. Pacificare Health Sys., Inc. v. Book, 538
U.S. 401, 406–07 (2003); e.g., Miccosukee Tribe of Indians of Florida v. Cypress, 814 F.3d 1202, 1206–07 (11th Cir.
2015); Uthe Tech. Corp. v. Aetrium, 808 F.3d 755, 756 (9th Cir. 2015).
130 Humana, Inc. v. Forsyth, 525 U.S. 299, 302–03 (1999) (“Under the McCarren-Ferguson Act, the federal legislation
may be applied if it does not invalidate, impair, or supersede the State’s regulation. The federal law at issue, RICO,
does not proscribe conduct that the State’s laws governing insurance permit.... When federal law is applied in aid or
enhancement of state regulation, and does not frustrate any declared state policy or disturb the State’s administrative
regime, the McCarran-Ferguson Act does not bar the federal action”); Ludwick v. Harbinger Grp., Inc., 854 F.3d 400,
403–07 (8th Cir. 2017); Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 513–19 (6th Cir. 2010); Am.
Chiropractic Ass’n, Inc. v. Trigon Healthcare, Inc., 367 F.3d 212, 230–32 (4th Cir. 2004); Bancoklahoma Mortg. Corp.
v. Capital Title Co., Inc., 194 F.3d 1089, 1198–1100 (10th Cir. 1999); Myers v. Provident Life and Accident Ins. Co.,
472 F. Supp. 3d 1149, 1169–70 (M.D. Fla. 2020); Flores v. United Airlines, 426 F. Supp. 3d 520, 537–39 (N.D. Ill.
2019); Mitchell v. First Call Bail and Surety, Inc., 412 F. Supp. 3d 1208, 1221–22 (D. Mont. 2019); The William
Powell Co. v. Nat’l Indemnity Co., 141 F. Supp. 3d 773, 781–82 (S.D. Ohio 2015) (“Determining whether the
McCarran-Ferguson Act reverse preempts a federal statute is a three-step process. First, the court must determine
whether the federal statute at issue relates specifically to the business of insurance. If it does, then the McCarranFerguson Act does not apply and the federal statute will not be reverse preempted. Second, the court must determine
whether the state law at issue was enacted for the purpose of regulating the business of insurance. If the state law was
not enacted for the purpose of regulating the business of insurance, then reverse preemption does not apply. Third, the
court must determine whether application of the federal statute would invalidate, supersede or impair the state statute.
If application of the federal statute would not invalidate, supersede or impair the state statute, then reverse preemption
does not apply.... [defendants] point out that: 1) RICO does not specifically relate to the business of insurance; 2) Ohio
has enacted a complex statutory and administrative scheme to regulate unfair insurance practices, including unfair
claims handling; and 3) because Ohio does not provide a private cause of action to insureds for unfair insurance
practices, a statute like RICO, which permits recovery of treble damages against the defendant in the event of a
violation, would invalidate, impair or supersede Ohio’s ability to regulate the business of insurance.... Consequently,
Powell’s RICO claim is reverse preempted by state law pursuant to the McCarran-Ferguson Act.”).
131 Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 156 (1987); Klehr v. A.O. Smith Corp., 521 U.S.
179, 183 (1997). The Court also held that a plaintiff must have exercised due diligence to discover the violation before
statute of limitations will be tolled because of the defendant’s fraudulent concealment, id. at 194, and that unlike the
statute of limitations in criminal cases, a civil cause of action does not date from the “last predicate act” of the RICO
violation, id. at 186–87; see also Álvarez-Maurás v. Banco Popular of P.R., 919 F.3 617, 625 (1st Cir. 2019); CVLR
Performance Horses, Inc. v. Wynne, 792 F.3d 469, 476 (4th Cir. 2015); Evans v. Ariz. Cardinals Football Club, LLC,
231 F. Supp. 3d 342, 346 (N.D. Cal. 2017); State Farm Mut. Auto. Ins. Co. v. Grafman, 655 F. Supp. 2d 212, 225
(E.D.N.Y. 2009). The statute of limitations for a RICO criminal prosecution is five years, 18 U.S.C. § 3282; United
States v. Schiro, 679 F.3d 521, 528 (7th Cir. 2012).
132 Rotella v. Wood, 528 U.S. 549, 552–53 (2000); Álvarez-Maurás, 919 F.3d at 625; CVLR Performance Horses, Inc.,
792 F.3d at 476; Mathews v. Kidder, Peabody & Co., Inc., 260 F.3d 239, 244–45 (3d Cir. 2001); Evans, 231 F. Supp.
3d at 346; Grafman, 655 F. Supp. 2d at 225.
133 The text of 18 U.S.C. § 1959 is attached in Appendix A
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organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendants
committed [or attempted or conspired to commit] a violent crime; and (4) that they acted for the
purpose of promoting their position in [or gaining entrance to] the racketeering enterprise.’”134
The list of predicate state and federal offenses consists of
•
•
•
•
•
•
•
murder;
kidnapping;
maiming;
assault with a deadly weapon;
assault resulting in serious bodily injury;
threat to commit a crime of violence;
attempt or conspiracy to commit a predicate offense.135
The penalties for a VICAR violation turn upon the nature of the predicate offense:
•
•
•
•
•
•
•
murder—death or life imprisonment;
kidnapping—any term of years or life;
maiming—not more than thirty years’ imprisonment;
assault with a deadly weapon—not more than twenty years’ imprisonment;
assault resulting in serious bodily injury—not more than twenty years’
imprisonment;
threat to commit a crime of violence—not more than five years’ imprisonment;
attempt or conspiracy to commit a predicate offense (other than a threat)—not
more than ten years’ imprisonment (murder or kidnapping); not more than three
years’ imprisonment (maiming or assault).136
Accomplices face the same sanctions.137
134 United States v. Rodriguez, 971 F.3d 1005, 1009 (9th Cir. 2020) (parentheticals of the court) (quoting United States
v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995); see also United States v. Lassiter, 96 F.4th 629, 636 (4th Cir. 2024); United
States v. Woods, 14 F.4th 544, 555 (6th Cir. 2021); United States v. Millán-Machuca, 991 F.3d 7, 19 (1st Cir. 2021);
United States v, Portillo, 969 F.3d 144, 164 (5th Cir. 2020) (“In order to establish a violation of this statute, the
government must prove: ‘(1) an enterprise engaged in racketeering; (2) the activities affected interstate commerce; (3) a
murder [or other predicate offense of violence]; and (4) the murder was committed for payment by the enterprise or for
the purpose of gaining entrance to or maintaining or increasing position in an enterprise.’” (parenthetical added)
(quoting United States v. Owens, 724 F. App’x 289, 296 (5th Cir. 2018) )); United States v. Arrington, 941 F.3d 24, 37
(2d Cir. 2019).
135 18 U.S.C. § 1959(a).
136 Id. § 1959(a)(1) –(6). Offenders are also subject to a fine of the greater of $250,000 ($500,000 for organizations) or
twice the pecuniary loss or gain associated with the offense. Id. § 3571.
137 Id. § 2; see, e.g., United States v. Quinn, 131 F.4 th 846, 852 (8th Cir. 2025); United States v. Torres, 124 F.4 th 84, 97
(2d Cir. 2024); United States v. Cruz-Ramos, 987 F.3d 27, 38 (1st Cir. 2020) (“Cruz-Ramos contests his VICAR
conviction for aiding and abetting Pekeke’s murder.... He is wrong,”); United States v. Portillo, 969 F.3d 144, 164–65
(5th Cir. 2020) (“Count Three charged Pike with aiding and abetting Anthony Benesh’s murder in support of a
racketeering enterprise, a crime under the [VICAR] Act.... There was sufficient evidence presented at trial for the jury
to find Pike guilty of Count Three.”); cf. United States v. Brown, 973 F.3d 667, 689–90 (7th Cir. 2020) (“Council, Bush,
and Ford join Derrick in arguing that the evidence was insufficient to support the jury’s special findings that their
racketeering activity included the commission, or aiding and abetting, of Bluitt’s and Neeley’s murders.... The jury ...
could reasonably find that Derrick participated in the murders, without shooting, on an accountability theory.... Derrick
took affirmative steps in furtherance of the murders by conducting surveillance before the murders and serving as
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VICAR uses the RICO definition of “racketeering activity”138 and the RICO description of
“enterprise,”139 but VICAR does not define murder or any of the other predicate offenses. The
omission initially introduced uncertainty as to whether the predicate offenses should be defined
by reference to federal law, the law of jurisdiction that provides the predicate offense, the
common law, or some generic definition reflecting the consensus of U.S. jurisdictions.140 In the
case of murder, the federal appellate courts appear to look to the substantive law of the state in
which murder, the predicate offense, occurred.141
VICAR “‘requires that an animating purpose of the defendant’s action was to maintain or increase
his position’ in the gang,” a requirement that may be satisfied by a defendant’s position of
“shooter” in the gang,142 by obligations imposed by virtue of membership in gang,143or by
backup.” (emphasis added)). Mere association with murderers is not enough to establish accomplice liability. United
States v. Delgado, 972 F.3d 63, 78–9 (2d Cir. 2020).
138 Id. §§ 1959(b)(1), 1961(1).
139 United States v. McClaren, 13 F.4th 386, 403 (5th Cir. 2021) (“Courts treat [the definition of enterprise under
VICAR] as identical to RICO.”). RICO defines “enterprise” broadly in § 1961(4), but waits until the description of
RICO’s substantive offenses before introducing the commercial feature of a RICO enterprises. See, e.g., 18 U.S.C. §
1962(c) (“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” (emphasis added)).
VICAR incorporates RICO’s commercial feature within its definition of “enterprise.” Id. § 1959(b)(2) (“‘[E]nterprise’
includes any partnership, corporation, association, or other legal entity, and any union or group of individuals
associated in fact although not a legal entity, which is engaged in, or the activities of which affect, interstate or foreign
commerce.” (language in italics is unique to § 1959(b)(2) which is otherwise identical to § 1961(4)). See also United
States v. Millán-Machuca, 991 F.3d 7, 20 (1st Cir. 2021) (“[N]othing in the statutory definition of enterprise requires
that the enterprise be defined solely by a criminal purpose. Indeed, the Supreme Court has recognized that RICO, and,
thus also VICAR, extends to ‘both legitimate and illegitimate enterprises.’” (quoting United States v. Turkette, 452
U.S. 576, 580–81 (1981))). United States v. Aquart, 912 F.3d 1, 17 (2d Cir. 2018) (finding that the jurisdictional
requirement “‘can be satisfied by even a de minimis effect on interstate commerce.’” (quoting United States v. Mejia,
545 F.3d 179, 203 (2d Cir. 2008))).
140 United States v. Savage, 970 F.3d 217, 274 (3d Cir. 2020) (“Some jurisdictions view generic definitions as
appropriate in RICO cases.... But the VICAR statute requires a predicate act that is chargeable under state or federal
law.... So as the Second Circuit has observed, trial courts frequently instruct juries on the elements of the specific state
or federal offense that is charged as the predicate act rather than outlining a ‘generic’ version of the crime.” (citing
United States v. Carrillo, 229 F.3d 177, 184–85 (2d Cir. 2000)); see also United States v. Keene, 955 F.3d 391, 389–99
(4th Cir. 2020) (“Reading the language of the VICAR statute under which the defendants were charged, we conclude
that Congress intended for individuals to be convicted of VICAR assault with a dangerous weapon by engaging in
conduct that violated both that enumerated federal offense as well as a state law offense, regardless whether the two
offenses are a categorical ‘match.’ Here, before convicting a defendant, a jury must find he engaged in the conduct
alleged in the indictment, namely, assaulting the named victim with a dangerous weapon in violation of the Virginia
brandishing statute.”).
141 United States v. Quinn, 131 F.4 th 846, 859 (8th Cir. 2025); United States v. Garcia, 74 F.4 th 1073, 1122 (10th Cir.
2023); United States v. Maley, 52 F.4th 143, 151 (4th Cir. 2022); Savage, 970 F.3d at 274; Carrillo, 229 F.3d at 184–85;
but see Garcia, 74 F.4th at 1125 (“Congress did not intend VICAR’s ‘violation of state laws’ language to incorporate
various states’ procedural, evidentiary, and limitations rules ... ”).
142 United States v. Tisdale, 980 F.3d 1089, 1095–96 (6th Cir. 2020) (quoting United States v. Ledbetter, 929 F.3d 338,
358 (6th Cir. 2019)); id. at 1096 (“Did [Tisdale] commit the assault to maintain or increase his position in the gang?
Remember that Tisdale was a ‘shooter’ in the gang, which meant that, if something happened, he was expected to
protect other gang members. According to his colleagues in the gang, he fired back at the Stout Street house to do just
that. That’s what someone of his rank was expected to do, and the statute applies to actions designed to ‘maintain’
status.” (citing Ledbetter, 929 F.3d at 358)).
143 United States v. Torres, 124 F.4th 84, 97 (2d Cir. 2024); United States v. Brown, 973 F.3d 667, 686 (7th Cir. 2020)
(“Next, the defendants argue that even if they actually committed the murder, the government failed to present
sufficient evidence that it was ‘for the purpose of maintaining or increasing position in’ the Hobos enterprise, as
required under 18 U.S.C. § 1959(a)(1). The question here is whether there was evidence permitting the jury to ‘infer
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expectations of a leader of an enterprise.144 That purpose, however, need not be the sole purpose
or even the main purpose.145
Juveniles convicted of murder in aid of racketeering have sometimes challenged their sentences
on grounds of Eighth Amendment limitations.146 In Miller v. Alabama, the Supreme Court held
that the Eighth Amendment’s ban on cruel and unusual punishments precludes a mandatory
sentence of life imprisonment without any possibility of parole for an offense the defendant
committed while a juvenile.147 However, Congress has largely abolished parole, and the VICAR
provision states that murder “shall be” punished by one of two sentences—death or life
imprisonment.148 The Fifth Circuit resolved the issue under a similarly worded statute by
concluded that in the case of juveniles the language establishes alternative maximum penalties
and “provides discretion to the sentencing judge to sentence anywhere between no penalty, and
the maximum penalty.”149 Most recently, the Supreme Court in Jones v. Mississippi150observed
that a juvenile who commits a homicide when under the age of eighteen may be sentenced to life
imprisonment without the possibility of parole as long as the sentencing authority did so as a
matter of discretion and might have imposed a less severe sentence.151 A number of lower federal
courts have recognized Miller protection claims from under-aged VICAR murder defendants, but
upheld lengthy terms of imprisonment as a matter of sentencing discretion.152
that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in
the enterprise or that he committed it in furtherance of that membership.’”) (quoting United States v. DeSilva, 505 F.3d
711, 715 (7th Cir. 2007)); United States v. Arrington, 941 F.3d 24, 38 (2d Cir. 2019) (“This motive requirement is
‘satisfied if the jury could properly infer that Arrington committed his violent crime because he knew it was expected
of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership,’”
(quoting United States v. Thai, 29 F.3d 785, 817 (2d Cir. 1994))).
144 United States v. Aquart, 912 F.3d 1, 20 (2d Cir. 2018) (“[The defendant] was the leader of the charged enterprise,
and the evidence was sufficient to allow a reasonable jury to infer that he was ‘expected to act based on the threat posed
to the enterprise’ by [the murdered victim’s] drug sales, ‘and failure to do so would have undermined his position
within that enterprise.’’) (quoting United States v. Dhinsa, 243 F.3d 635, 671 (2d Cir. 2001)).
145 Garcia, 74 F.4th at 1122 (“To have a VICAR purpose, status in the enterprise need not be the sole, or even the
primary, motive for the violent act.”); United States v. Millán-Machuca, 991 F.3d 7, 22 (1st Cir. 2021) (“To meet the
elements of a murder in aid of racketeering conviction, the government must show that the defendant acted with such a
purpose, and we have previously recognized that the statute does not require that the government prove this was ‘the
sole purpose,’”) (quoting United States v. Brandao, 539 F.3d 44, 56 (1st Cir. 2008)); United States v. Rodriguez, 971
F.3d 1005, 1009–10 (9th Cir. 2020) (“[T]he VICAR statute is limited ‘to those cases in which the jury finds that one of
the defendant’s general purposes or dominant purposes was to enhance his status or that the violent act was committed
as an integral aspect of gang membership.’ Recognizing that ‘[p]eople often act with mixed motives,’ we rejected a
more stringent reading of VICAR that would require the gang or racketeering enterprise purpose to be the only purpose
or the main purpose behind the violent conduct.”) (emphasis added) (quoting United States v. Banks, 514 F.3d 959,
969–70 (9th Cir. 2008)).
146United States v. Gonzalez, 981 F.3d 11, 18–21 (1st Cir. 2020); United States v. Sierra, 933 F3d 95, 97 (2d Cir. 2019);
United States v. Chavez, 894 F.3d 593, 609 (4th Cir. 2018).
147 Miller v. Alabama, 567 U.S. 460, 479 (2012).
148 See 18 U.S.C. § 1959(a)(1).
149 United States v. Bonilla-Romero, 984 F.3d 414, 417 (5th Cir. 2020) (affirming a sentence of 460 months’
imprisonment for first degree murder under 18 U.S.C. §1111 (which carries a maximum sentence of death or
imprisonment for life), for a defendant who committed the offense when he was 17 years old).
150 593 U.S. 98 (2021).
151 Id. at 100 (citing Miller, 567 U.S. at 460). The Court held in Jones that there is no requirement that the sentencing
authority first determine that the accused is permanently incorrigible. Id. at 113.
152 United States v. Holt, 126 F.4th 599, 606 (6th Cir. 2024); Stone v. United States, 37 F.4th 825, 827 (2d Cir. 2022);
Bonilla-Romero, 984 F.3d at 416.
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The Eighth Amendment also cabins sentencing authority in capital cases. It forbids imposing the
death penalty upon juveniles;153 execution of the mentally “retarded”;154 and forbids sentencing to
death those convicted of felony-murder who neither killed, attempted to kill, nor intended to
kill.155 In United States v. Savage, the Third Circuit upheld a sentence of death for a drug dealer
convicted of RICO conspiracy, twelve counts of murder in aid of racketeering, conspiracy to
commit murder in aid of racketeering, witness retaliation, and fire bombing.156 Savage, who
ordered the firebombing that killed his intended victim and five other occupants of the house,
argued unsuccessfully that the felony-murder limitation in Enmund v. Florida should be extended
to accomplices who incur liability by operation of the transferred intent doctrine.157
VI. Constitutional Questions
Over the years, various aspects of RICO have been challenged on a number of constitutional
grounds. Most either attack the RICO scheme generally or its forfeiture component. The general
challenges have been based on vagueness, ex post facto, and double jeopardy. Attacks on the
constitutionality of RICO forfeiture have been grounded in the right to counsel, excessive fines,
cruel and unusual punishment, and forfeiture of estate. While the challenges have been
unsuccessful by and large, some have helped to define RICO’s outer reaches.
A. General
1. Legislative Authority Under the Commerce Clause
The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes,” and “to make all Laws which shall be necessary
and proper for carrying to Execution” that authority.158 The powers which the Constitution does
not confer upon the federal government, it reserves to the states and the people.159 Although
RICO deals only with enterprises “engaged in, or the activities of which affect, interstate or
foreign commerce,” some have suggested that RICO has been applied beyond the scope of
Congress’s constitutional authority to legislate under the commerce clause.160 The courts have yet
to agree.161
153 Roper v. Simmons, 543 U.S. 551 (2005).
154 Atkins v. Virginia, 536 U.S. 304 (2002).
155 458 U.S. 782 (1982).
156 970 F.3d 217, 235–36, 316 (3d Cir. 2020).
157 Id. at 280. The doctrine of transferred intent is something of a doctrine of liability for collateral consequences where
the intent to kill one victim is “transferred” for the purposes of satisfying the intent element for killing a bystander. As
explained by Professor LaFave, “In the unintended victim (or bad aim) situation – where A aims at B but misses,
hitting C – it is the view of the criminal law that A is just as guilty as if his aim had been accurate.” 1 WAYNE R.
LAFAVE, SUBSTANTIVE CRIMINAL LAw § 6(d) (2d ed. 2003).
158 U.S. CONST. art. I, § 8, cls. 3, 18.
159 U.S. CONST. amend. X.
160 Matthew Hardwick. Note. RICO Overreach: How the Federal Government’s Escalating Offensive Against Gangs
Has Run Afoul of the Constitution, 62 VAND. L. REV. 211 (2009); WILLIAM ROQUEMORE TAYLOR. COMMENT.
Federalizing Street Crime: The Improper Broadening of RICO’s “Affecting Commerce” Requirement, 46 HOUS. L.
REV. 139 (2009).
161 United States v. Adams, 722 F.3d 788, 804 n.8 (6th Cir. 2013); United States v. Nascimento, 491 F.3d 25, 45 (1st Cir.
2007); United States v. Palfrey, 515 F. Supp. 2d 120, 124–25 (D.D.C. 2007). Courts have also rejected contentions that
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2. Double Jeopardy
Even a general description of RICO evokes double jeopardy and ex post facto questions. RICO
rests on a foundation of other crimes. At a glance, double jeopardy might appear to block any
effort to base a RICO charge on a crime for which the accused had already been tried. By the
same token, ex post facto might appear to bar a RICO charge built upon a predicate offense
committed before RICO was enacted or before the crime was added to the list of RICO
predicates. On closer examination, courts have found that neither presents insurmountable
obstacles in most instances.
The Constitution’s Double Jeopardy Clause commands that no person “be subject for the same
offence to be twice put in jeopardy of life or limb.”162 In general terms, it condemns multiple
prosecutions or multiple punishments for the same offense.163 The bar on multiple punishments is
a precautionary presumption. Unless a contrary intent appears, it presumes that Congress does not
intend to inflict multiple punishments for the same misconduct.164 Nevertheless, the courts have
concluded that Congress did intend to authorize “consecutive sentences for both predicate the acts
and the RICO offense,”165 as well as for both the substantive RICO offense and the RICO
conspiracy to commit the substantive RICO offense.166
The bar on multiple prosecutions is more formidable. For it, the Supreme Court has long adhered
to the so-called Blockburger test under which offenses are considered the same when they have
the same elements, that is, unless each requires proof of an element not required of the other.167 In
the RICO context, the courts have held that the Double Jeopardy Clause does not bar successive
RICO prosecutions of the same defendants on charges involving different predicate offenses,
enterprises, or patterns.168 They have been more receptive to double jeopardy concerns in the case
of successive prosecutions of the same enterprise. There, they have invoked a totality of the
circumstances test which asks: “(1) the time of the various activities charged as parts of [the]
separate patterns; (2) the identity of the persons involved in the activities under each charge; (3)
the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope
VICAR exceeds congressional authority under the Commerce Clause. Garcia, 74 F.4th at 1090; United States v.
Umana, 750 F.3d 323, 336 (4th Cir. 2014); United States v. Mills, 378 F. Supp. 3d 563, 572 (E.D. Mich. 2019).
162 U.S. CONST. amend. V.
163 United States v. Dixon, 509 U.S. 688, 696 (1993) (“The Double Jeopardy Clause ... applies both to successive
punishments and to successive prosecutions for the same criminal offense.”).
164 United States v. Garcia, 754 F.3d 460, 474 (7th Cir. 2014) (quoting Missouri v. Hunter, 459 U.S. 359, 365 (1983))
(“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than
prevent the sentencing court from prescribing greater punishment than the legislature intended.”); see also United
States v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010).
165 Garcia, 754 F.3d at 474; see also Ayala, 601 F.3d at 265; United States v. Basciano, 599 F.3d 184, 205 (2d Cir.
2010); United States v. Mahdi, 598 F.3d 883, 889 (D.C. Cir. 2010); United States v. Beale, 921 F.2d 1412, 1437 (11th
Cir. 1991).
166 United States v. Devine, 40 F.4 th 139, 151–52 (4th Cir. 2022) (“Our sister circuits have been repeatedly faced with a
dizzying variety of double jeopardy challenges to various combinations of RICO-related offenses. And time and time
again these challenges have been rejected.”) (collecting cases); United States v. Pratt, 728 F.3d 463, 478 n. 59 (5th Cir.
2013), abrogated on other grounds, Molina-Martinez v. United States, 578 U.S. 189 (2016); United States v. Kehoe,
310 F.3d 579, 587–88 (8th Cir. 2002); United States v. Marino, 277 F.3d at 39; United States v. Diaz, 176 F.3d 52, 115–
16 (2d Cir. 1999); United States v. Rone, 598 F.2d 564, 569–71 (9th Cir. 1979).
167 Blockburger v. United States, 284 U.S. 299, 304 (1932); see also United States v. Ortiz-Orellana, 90 F.4th 689, 705
(4th Cir. 2024); United States v. Ledbetter, 929 F.3d 338, 366 (6th Cir. 2019); United States v. Zemlyansky, 908 F.3d 1,
11–12 (2d Cir. 2018) (holding trial for a predicate offense does not preclude a RICO conspiracy prosecution).
168 United States v. Schiro, 679 F.3d 521, 525–28 (7th Cir. 2012); United States v. DeCologero, 530 F.3d 36, 71 (1st Cir.
2008); United States v. Jones, 482 F.3d 60, 71–2 (2d Cir. 2006).
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of the activity the government seeks to punish under each charge; and (5) the places where the
corrupt activity took place under each charge.”169 The Supreme Court’s confirmation in Gamble v.
United States of the continued validity of the dual sovereign doctrine makes clear that the Double
Jeopardy Clause does not preclude successive state-federal prosecutions.170
3. Ex post facto
The Ex Post Facto Clauses preclude (1) punishment of past conduct which was not a crime when
it was committed, (2) increased punishment over that which attended a crime when it was
committed, and (3) punishment made possible by elimination of a defense which was available
when a crime was committed.171 Yet because RICO offenses are thought to continue from the
beginning of the first predicate offense to the commission of the last, a RICO prosecution
survives ex post facto challenge even if grounded on pre-enactment predicate offenses as long as
the pattern of predicate offenses straddles the date of legislative action.172 Moreover, as time goes
on, prosecutions are less likely to rely on pre-RICO enactment predicate offenses.173
4. Vagueness
“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.”174 Vagueness became
a more common constitutional object to RICO, after Justice Scalia and three other Justices
implied its vulnerability to such an attack.175 Subsequent lower courts appear to have uniformly
169 United States v. Wheeler, 535 F.3d 446, 450 (6th Cir. 2008) (quoting United States v. Russotti, 717 F.2d 27, 33 (2d
Cir. 1983); and United States v. Dean, 647 F.2d 779 (8th Cir. 1981), on reh’g, 667 F.2d 729 (8th Cir. 1982)).
170 587 U.S. 678, 682 (2019); see also United States v. Brown, 973 F.3d 667, 702 (7th Cir. 2020); United States v.
Leoner-Aguirre, 939 F.3d 310, 321 (1st 2019).
171 U.S. CONST. art. I, § 9, cl. 3; art. I, § 10, cl. 1; Collins v. Youngblood, 497 U.S. 37, 52 (1990).
172 United States v. Flemmi, 245 F.3d 24, 27 n.3 (1st Cir. 2001) (“The government did not seek to indict Flemmi for the
crime of murder because there is no federal statute that can be applied to the 1967 slayings without violating the Ex
Post Facto Clause. This fact, however, does not prohibit reference to the slayings as predicate acts in connection with
the RICO counts. See United States v. Brown, 555 F.2d 407, 416–17 (5th Cir. 1977) (upholding, against constitutional
challenge, the government’s use of predicate acts occurring prior to RICO’s effective date in conjunction with predicate
acts occurring after that date).”); United States v. Caporale, 806 F.2d 1487, 1516 (11th Cir. 1986).
The fact that the defendant may be adversely affected by a procedural change likewise does not trigger ex post facto
concerns. Thus, when Congress amended RICO to permit the confiscation of substitute assets should the forfeitable
property become unavailable, the ex post facto clause did not preclude application of the change to cases arising before
the amendment, United States v. Reed, 924 F.2d 1014, 1016–17 (11th Cir. 1991); United States v. Martenson, 780 F.
Supp. 492, 495 (N.D. Ill. 1991).
173 Since the inception of RICO, amendments have largely involved the addition of new predicate offenses or
procedural matters. 18 U.S.C. §§ 1961 n., 1962 n. Contemporary challenges are more likely to involve application of
Sentencing Guidelines amendments, which often require more severe sentences than those in effect when the offense
was committed, see, e.g., Peugh v. United States, 569 U.S. 530, 544 (2013) (“A retrospective increase in the Guidelines
range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”);
United States v. Ponzo, 853 F.3d 558, 586 (1st Cir. 2017); United States v. DeLeon, 437 F. Supp. 3d 955, 962 (D.N.M.
2020).
174 Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 525 (1994) (quoting Kolender v. Lawson, 461 U.S. 352,
357 (1983)).
175 H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 251, 254–55 (1989) (Scalia, J., concurring in the judgment) (“Four
terms ago ... we gave lower courts ... four clues concerning the meaning of the enigmatic term ‘pattern of racketeering
activity.... ’ Today, four years and countless millions in damages and attorney’s fees later (not to mention prison
sentences under the criminal provisions of RICO), the Court does little more than repromulgate those hints as to what
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rejected the suggestion that RICO is unconstitutionally vague either generally or as applied to the
facts before them.176
5. Cruel and Unusual Punishment
The Eighth Amendment’s Cruel and Unusual Punishment Clause precludes imposition or
execution of punishment that is disproportionate to the crime of conviction. 177 It accordingly bars
imposition of a mandatory sentence of life imprisonment without the possibility of parole for a
homicide committed when the accused was under eighteen years of age,178 but not if the
sentencing authority has the discretion to impose a less severe sentence.179
B. Forfeiture
1. Eighth Amendment
RICO forfeitures can be substantial. The Eighth Amendment supplies the constitutional bounds
within which criminal sentences must be drawn. Under its directives, fines may not be excessive
nor punishments cruel and unusual.180 Any more precise definition becomes somewhat uncertain.
When presented with the issue in Harmelin, a majority of the Supreme Court appeared to believe
that the Eighth Amendment’s Cruel and Unusual Punishment Clause forbids sentences which are
“grossly disproportionate” to the seriousness of the crimes for which they are imposed.181 Prior to
Harmelin, the lower courts felt that at some point RICO forfeitures might be so disproportionate
as to constitute cruel and unusual punishment.182 Perhaps understandably, especially in light of
RICO means.... It is, however, unfair to be so critical of the Court’s effort, because I would be unable to provide an
interpretation of RICO that gives significantly more guidance concerning its application.... Today’s opinion has added
nothing to improve our prior guidance, which has created a kaleidoscope of Circuit positions, except to clarify that
RICO may additionally be violated when there is a ‘threat of continuity.’ It seems to me this increases rather than
removes the vagueness.”).
176 United States v. Fattah, 914 F.3d 112, 167 n. 20 (3d Cir. 2019); United States v. Burden, 600 F.3d 204, 228 (2d Cir.
2010); United States v. Keltner, 147 F.3d 662, 667 (8th Cir. 1998); Columbia Nat. Res., Inc. v. Tatum, 58 F.3d 1101,
1106–109 (6th Cir. 1995); United States v. Oreto, 37 F.3d 739, 752 (1st Cir. 1994); United States v. Korando, 29 F.3d
1114, 1119 (7th Cir. 1994); Cox v. Adminstr. U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir. 1994), opinion modified on
reh’g, 30 F.3d 1347 (11th Cir. 1994); United States v. Bennett, 984 F.2d 597, 606 (4th Cir. 1993); United States v. Pirk,
267 F. Supp. 3d 406, 423–24 (W.D.N.Y. 2017); Buchanan County v. Blankenship, 545 F. Supp. 2d 553, 555 (W.D. Va.
2008); United States v. Stevens, 778 F. Supp. 2d 683, 694–95 (W.D. La. 2011).
177 Miller v. Alabama, 567 U.S. 460, 469–70 (2012).
178 Id. at 480.
179 Jones v. Mississippi, 593 U.S. 98, 103 (2021) (“Miller held that the Cruel and Unusual Punishments Clause of the
Eighth Amendment prohibits mandatory life-without parole sentences for murderers under 18, but the Court allowed
discretionary life-without parole sentences for those offenders.”).
180 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
U.S. CONST. amend. VIII.
181 Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding the imposition of a state mandatory term of life in prison
without the possibility of parole upon conviction for possession of more than 650 grams of cocaine.) Of the nine
Justices, two (Justice Scalia and Chief Justice Rehnquist) voted to affirm and would limit proportionality analysis to
capital punishment cases; three others (Justices O’Connor, Kennedy and Souter) voted to affirm but pursuant to a
proportionality analysis where the seriousness of the offense carried the day, id. at 996; and the remaining four (Justices
White, Marshall, Blackmun and Stevens) dissented in favor of a proportionality test placing greater emphasis on the
comparative harshness of the penalty and a comparison with the penalties imposed for other crimes, id. at 1009, 1027,
1028.
182 United States v. Feldman, 853 F.2d 648, 664 (9th Cir. 1988) (“For eighth amendment purposes, however, we must
consider the total punishment imposed. Feldman’s penalty is unconstitutional only if it is grossly disproportionate to his
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developments under the Excessive Fines Clause, the argument seems to have been rarely pressed
since Harmelin.183
The Eighth Amendment’s Excessive Fines Clause jurisprudence follows the same path and is
slightly more instructive. Historically, the clause was only infrequently invoked. The Supreme
Court changed that when it noted that the clause marks one of the boundaries of permissible
RICO criminal forfeiture.184 In Bajakajian, the Court explained that a forfeiture offends the
Excessive Fines Clause when it is “grossly disproportional to the gravity of the defendant’s
offense.”185 Looking to Bajakajian, lower courts
weigh a number of factors in determining whether a forfeiture was grossly disproportional,
including: (1) the amount of the forfeiture and its relationship to the authorized penalty; (2)
the nature and extent of the criminal activity; (3) the relationship between the charged crime
and other crimes; and (4) the harm caused by the charged crime .186
Although the gravity of most RICO violations would seem to weigh heavily against most
excessive fines clause challenges,187 at least one circuit holds that the appropriate excessive fines
analysis must include consideration of the impact of confiscation upon the property owner’s
livelihood.188 One federal district court has found the confiscation of a motorcycle gang’s
trademark of its logo would constitute an excessive fine in light of the other sanctions imposed
upon the gang and First Amendment implications.189
offense. No gross disparity appears here. Feldman’s offenses were serious, and the penalty is not unduly harsh. We are
not faced with a situation in which a defendant is being made to forfeit a 92% interest in a $3 million corporation as
well as all of another corporation and considerable real estate, for fraudulent conduct amounting to $335,000.”
(citations omitted)).
183 Craig W. Palm, RICO Forfeiture and the Eighth Amendment: When Is Everything Too Much? 53 U. PITT. L. REV. 1
(1991).
184 Alexander v. United States, 509 U.S. 544, 558–59 (1993).
185 United States v. Bajakajian, 524 U.S. 321, 334–37 (1998).
186 United States v. Bennett, 986 F.3d 389, 399 (4th Cir. 2021) United States v. Suarez, 966 F.3d 376, 385 (1 st Cir.
2020); United States v. Bikundi, 926 F.3d 761, 795–96 (D.C. Cir. 2019).
187 See generally United States v. Esformes, 60 F.4th 621, 640 (11th Cir. 2023) (upholding a forfeiture of $38.7 million
in light of $77.4 million involved in a money laundering scheme); Bennett, 986 F.3d at 399–400 (finding that criminal
forfeiture of $14 million was not grossly disproportionate following in light of the $38.7 million conviction for wire
and bank fraud for which the court might have imposed a $28 million fine); United States v. Bradley, 969 F.3d 585,
592 (6th Cir. 2020) (holding that forfeiture judgment which left the defendant with a debt of $250,000 was not
excessive given his years at the head of a opioid trafficking conspiracy); Suarez, 966 F.3d at 387 (upholding a $52.042
forfeiture, following a money laundering conviction, with the observation that “[b]ecause the $52,042 forfeiture falls
well within the $250,000 maximum fine ‘prescribed by Congress,’ there is a ‘strong presumption ... that the forfeiture
is constitutional.’”); Bikundi, 926 F.3d at 795–96 (“All four [Bajakajian] factors confirm that the [$79 million]
forfeitures imposed against [the defendants] do not violate the Excessive Fines Clause. (1) The essence of their crime
was grave. They personally orchestrated a sprawling fraud ... [that] lasted for years.... (2) [The defendants] fall squarely
within the class of criminals targeted by the relevant forfeiture statutes.... (3) The statutes of conviction and the
Sentencing Guidelines authorize heavy prison sentences and fines.... (4) [The defendants] caused significant harm.... ”);
United States v. Powell, 697 F. Supp. 3d 1023, 1028 (D. Idaho 2023).
188 United States v. Levesque, 546 F.3d 78, 83–5 (1st Cir. 2008); See also United States v. Chin, 965 F.3d 41, 58 (1st
Cir. 2020) (“The District Court’s findings about Chin’s net worth, familial obligations, and inability to earn a
professional-level salary simply are not sufficient to ground a determination that the full forfeiture order sought by the
government would constitute the type of ‘ruinous monetary punishment[]’ that might conceivably be ‘so onerous as to
deprive a defendant of his or her future ability to earn a living’ and thus violate the Eighth Amendment’s Excessive
Fine Clause.” (quoting Levesque, 546 F.3d at 84–5)).
189 United States v. Mongol Nation, 370 F. Supp. 3d 1090, 1119–120 (C.D. Cal. 2019) (“The Government has secured
prison sentences and significant forfeiture of the criminal organization’s assets and property, including motorcycles.
And as a result of the conviction in this case, the Government will secure forfeiture of weapons, ammunition, body
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2. First Amendment
Forfeiture may raise First Amendment issues. The First Amendment guarantees the right of free
speech and freedom of the press.190 It generally precludes government prior restraint of
expression.191 In contrast to prior restraint, however, it generally permits punishment of the
unlawful distribution of obscene material.192 In the view of a majority of the Justices in Alexander
v. United States, the application of RICO’s provisions to confiscate the inventory of an adult
entertainment business as punishment for a RICO conviction based upon obscenity predicates
does not offend the First Amendment.193
The district court in United States v. Mongol Nation rejected a proposed preliminary forfeiture
order for the confiscation of the trademark covering a motorcycle gang’s logo.194 Although the
gang had been convicted of substantive and conspiracy RICO violations, the court held that the
proposed order would violate the First Amendment’s protections of expression and association.195
3. Right to the Assistance of Counsel
In two cases decided under the criminal forfeiture provisions of the federal drug law, the Supreme
Court held that a criminally accused’s Sixth Amendment right to the assistance of counsel does
not invalidate statutory provisions which call for the confiscation of forfeitable property paid as
attorneys’ fees or which permit the court, upon a probable cause showing of forfeitability, to
freeze assets which the accused had intended to use to pay attorneys’ fees.196 The same can be
said of the RICO forfeiture provisions.197 The Sixth Amendment right to the assistance of counsel
of choice does preclude the pre-trial restraint of untainted property needed to retain and
compensate counsel,198 but does not require post-conviction access to confiscated substitute
assets.199
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