A. Existing Criminal Enterprise, Element One
RICO defines an enterprise as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal This statutory definition is incredibly broad. In 1981, the Supreme Court attempted to clarify the meaning of a RICO enterprise in United States v. Turkette by defining it as "a group of persons associated together for a common purpose of engaging in a course of In the Court's view, an enterprise was demonstrated "by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing The Court, however, did not specify the level of organization or structure that was necessary for a criminal group to be considered a RICO enterprise. This lack of specificity engendered conflicting standards among federal courts of appeals. The majority of circuit courts required a RICO enterprise to have an organizational structure distinct from its pattern of racketeering activity. Conversely, the Second, Ninth, and Eleventh Circuits permitted the government to establish an existing RICO enterprise based solely on evidence of the predicate crimes.
Recently, in Boyle v. United States, the Court seemed to resolve this circuit split in favor of the minority circuits. The Petitioner in the case was convicted under RICO for robbing several banks in multiple states with a group of other people. The trial court permitted the jury to infer an existing RICO enterprise from the bank robberies themselves, without finding a distinct organizational structure. The Petitioner appealed his conviction after the trial court refused his request for a jury instruction requiring the government to prove an existing RICO enterprise through an organizational structure distinct from the underlying predicate acts. In upholding the trial court's jury instructions, the Court held that a RICO enterprise must have an ascertainable structure, but the government need not prove an organizational structure beyond that inherent in the pattern of racketeering activity. The Court upheld its position in Turkette that a RICO enterprise is a continuing unit that functions with a common purpose, but concluded that the unit need not have a hierarchical structure and its members need not have fixed roles. Rather, the unit's "decisions may be made on an ad hoc basis and by any number of
In the context of criminal street gang prosecutions, the breadth of the Boyle decision is further compounded by the ambiguity of the federal statutory definition of "criminal street gang" and the general lack of consensus among policymakers, scholars, and practioners over the definition of the term. Federal law defines a criminal street gang as:
An ongoing group, club, organization, or association of 5 or more persons --
(A) that has as 1 of its primary purposes the commission of 1 or more of the criminal offenses described in subsection (c);
(B) the members of which engage, or have engaged within the past 5 years, in a continuing series of offenses described in subsection (c); and
(C) the activities of which affect interstate or foreign commerce. The crimes enumerated under this federal gang statute are conspiracy to commit or the commission of (1) felonies involving a controlled substance, and (2) felonies of violence that require the use or attempted use of physical force against a person.
The combination of the broad statutory definitions of RICO "enterprise" and "criminal street gang" permit a variety of criminal groups with members of any race to be conceptualized as criminal street gangs. On the face of the statute, race is not mentioned explicitly. But as the empirical study will later show, the criminal groups that the government has prosecuted as gangs under RICO are primarily affiliated with one or more racial minority groups.