Fill and Sign the Rico Substantive Offense Form

61.1 RICO - Substantive Offense 18 USC § 1962(c) Count of the indictment charges that from on or about, and continuously thereafter up to and including the date of the filing of the indictment on, the Defendants were persons associated with an "enterprise" engaged in, or the activities of which affected, interstate commerce, and that they knowingly and willfully participated in the conduct of the enterprise's affairs " through a pattern of racketeering activity," in violation of Title 18, United States Code, Section 1961 and 1 962(c). The term "enterprise" includes any partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity. The term " racketeering activity" includes any act in violation of [e.g., Title 18 of the United States Code relating to mail fraud (section 1341) and wire fraud (Section 1343)]. The term " pattern of racketeering activity" requires at least two acts of " racketeering activity," sometimes called predicate offenses, which must have been committed within ten years of each other, one of which must have occurred after October 15, 1970. So, in order to establish that the Defendants named in County of the indictment, or any of them, committed the offense charged in that Count, there are five specific facts which must be proved beyond a reasonable doubt: First: That the Defendant w as associated with an " enterprise" as defined in these instruct ions; Second: That the Defendant knowingly and willfully committed, or knowingly and willfully aided and abetted the commission of at least two of the predicate offenses herein after specified; Third: That the two predicate offenses allegedly committed by the Defendant were connected with each other by some common scheme, plan or motive so as to be a pattern of criminal activity and not merely a series of separate, isolated or disconnected acts; Fourth: That through the commission of two or more connected offenses, the Defendant conducted or participated in the conduct of the " enterprise' s" affairs; and Fifth: That the enterprise was engaged in, or that its activities affected, interstate commerce. With respect to the first specific f act stated above, in order for you to find that the Defendant was "associated" with the enterprise, the Government need only prove beyond a reasonable doubt that the Defendant was aware of the general existence of the enterprise described in the indictment. With respect to the second specific f act stated above, the Government must prove beyond a reasonable doubt that the Defendant under consideration knowingly and willfully committed, or aided and abetted the commission of any two of the predicate offenses specifically alleged and described in the indictment [under the headings " Racketeering Act One and "Racketeering Act Two."] [in Counts through, respectively.] You are further instruct ed, however, that you must unanimously agree concerning each Defendant under consideration as to which of the two predicate offenses the Defendant is alleged to have committed, or aided and abetted in committing. It would not be sufficient if some of the jurors should find that a Defendant committed two of the predicate offenses while the remaining jurors found that such Defendant committed two different offenses; you must all agree upon the same two predicate offenses in order to find the Defendant guilty of Count. With respect to the fourth specific fact stated above - - that the Defendant conducted or participated in the conduct of the affairs of the enterprise - - the Government must prove beyond a reasonable doubt that the Defendant was something more than an outsider lending aid to the enterprise. It must be proved that the Defendant had some part in either the management or the operation of the affairs of the enterprise itself. Thus, it need not be proved that the Defendant had primary responsibility or even a managerial position; it is enough if the Defendant was involved in conducting the operation of the affairs of the enterprise as a lower level participant. With respect to the fifth specific fact - - the requirement that the "enterprise" was engaged in, or that its activities affected, interstate commerce - - the Government contends that in conducting the affairs of the enterprise the Defendants [e.g. 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 by mail or by wire in interstate commerce from one state to another.] You are instructed that if you find beyond a reasonable doubt that these transactions or event s occurred, and that they occurred in, or as a direct result of, the conduct of the affairs of the alleged enterprise, the required affect upon interstate commerce has been established. If you do not so find, the required effect upon interstate commerce has not been established. ANNOTATIONS AND COMMENTS 18 USC § 19 62 (c) provides: 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 . . . ." Maximum Penalty: Twenty (20) years imprisonment and applicable fine. In United States v. Kotvas, 941 F.2d 1141 (11th Cir. 1991), the Eleventh Circuit held t hat this pattern instruction properly instructed the jury on the continuity requirement discussed by the United States Supreme Court in H. J. , Inc., v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989).In Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the Supreme Court held that a Defendant participates in the conduct of an enterprise' s affairs by participating in the "operation or management" of the enterprise. The Eleventh Circuit has held that Reves, a civil RICO action, applies to criminal proceedings as well. See United States v. Starrett , 55 F.3d 1525 (11th Cir. 1 99 5). Starrett nevertheless upheld the district court ' s refusal to give a proposed instruction that the Defendant must have occupied a " leadership" position in the enterprise.