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8.157 RICO—Pattern of Racketeering Activity

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8.157 RICO—PATTERN OF RACKETEERING ACTIVITY (18 U.S.C. § 1961(5))

To establish a pattern of racketeering activity, the government must prove each of the following beyond a reasonable doubt:

First, at least two acts of racketeering were committed; 

Second, the acts of racketeering had a relationship to each other which posed a threat of continued criminal activity; and

Third, the acts of racketeering embraced the same or similar purposes, results, participants, victims, or methods of commission, or were otherwise interrelated by distinguishing characteristics.

Sporadic, widely separated, or isolated criminal acts do not form a pattern of racketeering activity.

Two racketeering acts are not necessarily enough to establish a pattern of racketeering activity.

Comment 

If there is an issue whether there were two racketeering activities within ten years, the instruction should be modified by inserting "within a period of ten years" after "acts of racketeering were committed" at the end of the first element.

In determining whether two racketeering activities occurred within ten years, any period of imprisonment after the commission of a prior act must be excluded.

See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14 (1985) (although at least two acts are necessary under the definition of "pattern of racketeering activity," two acts may not be sufficient to constitute a pattern). See also H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989) (pattern of racketeering activity requires a "showing that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity"); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1535-36 (9th Cir.1992) (applying Northwestern Bell); Ikuno v. Yip, 912 F.2d 306, 309 (9th Cir.1990) (same).