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19. CIVIL RICO

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Introductory Comment

A private civil action may be brought by a plaintiff under the provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), alleging a violation of Title 18 U.S.C. § 1962(a), (b), (c) or (d).

Regarding the elements that a plaintiff must prove to recover under 18 U.S.C. § 1962(c), see Sedima v. Imrex Co., Inc., 473 U.S. 479, 496 (1985) (18 U.S.C. § 1962(c)) requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity; in addition, the plaintiff can only recover to the extent he has been injured in his business or property by the conduct constituting the violation).

See also Living Designs, Inc. v. E. I. Dupont de Numours and Co., 431 F.3d 353, 361 (9th Cir.2005) (elements of a civil RICO claim are as follows: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as "predicate acts") (5) causing injury to plaintiff’s "business or property"), cert. denied, 126 S. Ct. 2861 (2006).

A defendant is guilty of conspiracy to violate § 1962(c) if the evidence shows that he or she knowingly agreed to facilitate a scheme that includes the operation or management of a RICO enterprise. United States v. Fernandez, 388 F.3d 1199, 1230 (9th Cir.2004), cert. denied, 555 U.S. 1043 (2005).

To be convicted of conspiracy to violate RICO under § 1962(d), the conspirator need not have committed or agreed to commit the two or more predicate acts, such as bribery, requisite for a substantive RICO offense under § 1962(c). Salinas v. United States, 522 U.S. 52, 61–65 (1997).

An enterprise under RICO must have an ascertainable structure separate from that inherent in the racketeering activity; also, a conspiracy is not, in and of itself, an enterprise for purposes of RICO. Chang v. Chen, 80 F.3d 1293, 1298 (9th Cir.1996).

Section 1962(d) applies to intracorporate, as well as intercorporate conspiracies; thus, it is possible for a corporation to engage in a RICO conspiracy with its own officers and representatives. Webster v. Omnitrition Int’l, 79 F.3d 776, 787 (9th Cir.1996).

RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff. Oscar v. University Students Co-operative Ass’n, 965 F.2d 783, 786 (9th Cir.1992).

A "pattern of racketeering activity" exists when a person commits two or more specified acts that have sufficient continuity so as to pose a threat of continued criminal activity. Ticor Title Ins. Co. v. Florida, 937 F.2d 447, 450 (9th Cir.1991).

For model jury instructions that may be helpful, see Fifth Circuit Pattern Jury Instructions (Civil) (2006), Instruction 8.1 and Eleventh Circuit Pattern Jury Instructions—Civil Cases (2005), Instruction 5.1. These instructions may be accessed, respectively, at the following web sites:

http://www.lb5.uscourts.gov/juryinstructions/2006CIVIL.pdf

http://www.ca11.uscourts.gov/documents/pdfs/civjury.pdf