Fill and Sign the Jury Instruction 551 General Instruction Form

5.1 Civil RICO (18 USC § 1964(c)) General Instruction In this case the Plaintiff claims that the Defendant violated a federal law known as the Racketeer Influenced and Corrupt Organizations Act (RICO), and the Plaintiff seeks an award of damages as compensation for that alleged violation. It is unlawful under the so-called RICO statute for anyone associated with an "enterprise" to conduct, or to participate in conducting, the affairs of the enterprise through a "pattern of racketeering activity." The term "enterprise" as defined in the law includes any partnership, corporation, association or other legal entity, and any union or other group of individuals associated in fact although not a legal entity, that is engaged in, or the activities of which affect, interstate commerce. In this case the Plaintiff claims that [describe the alleged "enterprise"] constituted an "enterprise" within the meaning of the RICO law. The term "racketeering activity" includes any act in violation of [Title 18, United States Code relating to mail fraud (§ 1341) and wire fraud (§ 1343)]. The term "pattern of racketeering activity" requires proof of at least two acts of "racketeering activity," sometimes called predicate facts, which must have been committed as part of a common plan or scheme and thus connected with each other as part of a pattern rather than being a series of isolated or disconnected acts. So, in order to prevail on the RICO claim the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Defendant was associated with an "enterprise" as alleged and described by the Plaintiff and as defined in these instructions; Second: That the Defendant "knowingly" committed at least two of the predicate acts hereafter described; Third: That the predicate acts formed a pattern by having the same or similar purposes, results, participants, victims, or methods of commission, or were otherwise interrelated by distinguishing characteristics so that they were not isolated events; Fourth: That the predicate acts amounted to, or threatened the likelihood of, continued criminal activity posing a threat of continuity projecting into the future; Fifth: That through the commission of the two or more connected predicate acts, the Defendant conducted or participated in the conduct of the affairs of the "enterprise;" Sixth: That the "enterprise" was engaged in, or that its activities affected, interstate commerce; and Seventh: That the Plaintiff was injured in [his/her/its] business or property as a proximate result of the Defendant's commission of the pattern of racketeering activity. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] The first fact the Plai ntiff must prove, therefore, is that the Defendant was associated with an "enterprise," as previously defined. The second fact the Plaintiff must prove is that the Defendant knowingly committed at least two so-called "predicate acts. "To act "knowingly" means to act voluntarily and intentionally, and not because of mistake or accident. The "predicate acts" claimed by the Plaintiff are [describe the specific transactions alleged as predicate acts and further define, if necessary (i.e., if not already covered elsewhere in the instructions) the essential elements of the underlying offense]. The "predicate acts" alleged by the Plaintiff would constitute [a mail fraud and/or wire fraud offense in violation of Title 18, United States Code, §§ 1341 and 1343. Under those laws it is an offense for anyone to scheme to defraud someone else out of money or property by making false and fraudulent representations, and then to attempt to execute or carry out the scheme through use of the mails or interstate wire communications facilities. Each separate use of the mails or wires is a separate offense or separate predicate act]. If you find that the Defendant committed two or more of the predicate acts, you must then decide whether those acts constituted a "pattern of racketeering activity," as previously described, and whether that "pattern" of activity amounted to, or threatened the likelihood of, continued criminal activity posing a threat of continuity projecting into the future. You must next decide whether the “pattern of racketeering activity” was engaged in by the Defendant while conducting, or participating in the conduct of, the affairs of the "enterprise." If so, you must then decide whether the "enterprise" was engaged in, or whether its activities affected, "interstate commerce." The term "interstate commerce" refers to business transactions occurring between places in different states; and, in this case, the Plaintiff claims that in conducting the affairs of the enterprise the Defendant [utilized interstate communications facilities by engaging in long distance telephone conversations; by traveling in interstate commerce from one state to another; and by causing the transmission of funds and/or other communications by mail and/or by wire in interstate commerce from one state to another]. If you find from a preponderance of the evidence that these transactions or events occurred, and that they occurred in, or as a direct result of, the conduct of the affairs of the alleged "enterprise," then the required effect upon interstate commerce has been established. If you do not so find, then the required effect upon interstate commerce has not been established. If all of those issues are resolved in favor of the Plaintiff you must then decide whether the Plaintiff has suffered injury in [his/her/its] business or property as a "proximate result" of the Defendant's pattern of racketeering activity. To be the "proximate result" of such activity it must be proved that, except for such activity by the Defendant, the injury or damage claimed by the Plaintiff would not have occurred. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: [List separately each element of damages being claimed by the Plaintiff] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] [The Plaintiff also claims that the acts of the Defendant were done willfully, intentionally or with callous and reckless indifference to the Plaintiff's rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. If you find for the Plaintiff, and if you further find that the Defendant did act with malice, willfulness or callous and reckless indifference to the rights of others, the law would allow you, in your discretion, to assess punitive damages against the Defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages [and you may assess punitive damages against one or more of the Defendants, and not others, or against more than one Defendant in different amounts].] 5.1 Civil RICO (18 USC § 1964(c)) General Instruction SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Defendant was associated with an “enterprise” as alleged and described by the Plaintiff (and as defined in the Court’s Instructions)? Answer Yes or No 2. That the Defendant “knowingly” committed at least two of the “predicate acts” (as defined in the Court’s Instructions)? Answer Yes or No 3. That the predicate acts formed a pattern by having the same or similar purposes, results, participants, victims or methods of commission, or were otherwise interrelated by distinguishing characteristics so that they were not isolated events? Answer Yes or No 4. That the predicate acts amounted to, or threatened the likelihood of, continued criminal activity posing a threat of continuity projecting into the future? Answer Yes or No 5. That through the commission of the two or more connected predicate acts the Defendant conducted, or participated in the conduct of, the affairs of the enterprise? Answer Yes or No 6. That the enterprise was engaged in, or its activities affected, interstate commerce? Answer Yes or No 7. That the Plaintiff was injured in [his] [her] [its] business or property as a proximate result of the Defendant’s commission of the pattern racketeering activity? Answer Yes or No [Note: If you answered No to any of the preceding questions, you need not answer any question following the question to which you gave No as the answer.] 8. That the Plaintiff should be awarded the following damages: [Enumerate the recoverable elements of damages] $ SO SAY WE ALL. Foreperson DATED: ANNOTATIONS AND COMMENTS See H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); Cox v. Administrator United States Steel & Carnegie, 17 F.3d 1386, 1397 (11th Cir. 1994) (holding that predicate acts are related if they have similar purposes, results, participants, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and are not isolated events; and that a plaintiff who alleges a RICO violation may demonstrate continuity over a period of time by proving a series of related predicate acts that extend over a substantial period of time and threaten future criminal conduct). Quick v. Peoples Bank of Cullman County, 993 F.2d 793, 797 (11th Cir. 1993) (respondeat superior liability may be applied in the context of 18 USC § 1962 (b) only when an enterprise has derived some benefit from the RICO violation). Arabian American Oil Co. v. Scarfone, 939 F.2d 1472, 1478 (11th Cir. 1991) (a plaintiff may bring a RICO action where a breach of contract claim also exists, and may receive treble damages even if the RICO claim and the breach of contract claim share identical compensatory damages). Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666, 674 (11th Cir. 1991) (a plaintiff is not required to exhaust state remedies before bringing a RICO claim).