Sunday, April 17, 2011

Third Circuit Reinstates RICO Indictment Against an Attorney and Others

The Third Circuit Court of Appeals reversed and remanded a district court's dismissal of a RICO indictment against an attorney and others. (See Opinion -  U.S. v. Bergrin here)  RICO is clearly a complicated statute and the court's decision presents an extremely thorough review of many aspects of the law in this area.  Typically, RICO is one of the few topics that need a few days of classes in order to truly understand its depth and breadth. The Supreme Court's continually allowance for RICO to be read broadly, brings it to an even higher level.  Areas that continually plague readers/students is what constitutes a sufficient "enterprise" and when do you have a "pattern of racketeering activity."    Justice Scalia in HJ Inc. criticizes the test of "continuity plus relationship" as set forth by the Court, as he says that this is "as helpful to the conduct of their affairs as 'life is a fountain.'"

This Third Circuit decision to reinstate the indictment comes on the heels of the Supreme Court's 2009 decision in Boyle (see here), where the Court held that RICO association-in-fact enterprises require an "ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages, but no - "an instruction framed in this precise language is not necessary."The Court held that an association-in-fact enterprise needs to have "three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose." At the time the Boyle decision came down, I blogged that the decision would be "very helpful for government prosecutions in that it allows RICO cases to be brought with the jury being told a minimal amount of what is required for a RICO enterprise." 

This Third Circuit decision confirms that the government will have an easier time in presenting RICO cases.  Whether the defendant and others will be convicted in this case remains to be seen, but for now it is clear that the breadth of RICO will allow this matter to move forward.

(esp) 

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