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Jordan Blair Woods

Excerpted from:  Jordan Blair Woods, Systemic Racial Bias and Rico's Application to Criminal Street and Prison Gangs, 17 Michigan Journal of Race and Law 303 (Spring 2012) (257 footnotes omitted).


Since its enactment, RICO has been a controversial law. The federal statute has been used to prosecute a broad range of activities, including government corruption, white-collar crime, violence, and drug crimes. RICO's elements and prohibited activities are included under 18 U.S.C. s 1962. In short, there are three elements that the government must establish in order to prosecute an alleged gang member or gang affiliate under RICO: (1) the defendant must be directly or indirectly employed by or associated with an enterprise; (2) the defendant must have engaged in a pattern of racketeering activity; and (3) the crimes committed by the defendant must have affected interstate or foreign commerce. As the analysis below shows, the government's burden of proof to establish each of these elements is fairly low.

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.

B. Pattern of Racketeering Activity, Element Two

In order to establish a "pattern of racketeering activity," the government must implicate the defendant in at least two predicate acts of racketeering. RICO provides an exhaustive list of predicate acts, which include both state and federal crimes involving violence, fraud, counterfeiting, drugs, and immigration. The defendants need not be convicted of the underlying predicate acts; offenses of which the defendant has been acquitted may serve as the basis of a RICO offense. In the empirical study, the government almost always established this element through multiple allegations of violent, drug, and immigration crimes.

C. Interstate or Foreign Commerce, Element Three

A pattern of racketeering activity under RICO must affect interstate or foreign commerce. After Congress enacted RICO, some courts held that the enterprise itself, rather than the predicate crimes, must affect interstate or foreign commerce. Many courts now apply a much less stringent standard that merely requires an enterprise's predicate acts to have a de minimis impact on interstate or foreign commerce. This low threshold allows the government to satisfy the interstate and foreign commerce element of RICO quite easily in cases that involve criminal street gangs.

Some courts have raised concerns about whether applying this less stringent standard to organizations that are predominantly noneconomic in nature, such as criminal street gangs, exceeds the bounds of the commerce clause of the U.S. Constitution. In Waucaush v. United States, the Sixth Circuit held that a prosecutor could not press RICO charges against members of a criminal street gang that engaged in violent, but noneconomic, activity. The court held that RICO could only be used within the bounds of the commerce clause to target a noneconomic organization when its activities substantially affected interstate commerce.

Not all courts, however, have shared these concerns. In United States v. Nascimento, the First Circuit explicitly rejected the Sixth Circuit's reasoning in Waucaush and upheld the de minimis standard as applied to criminal street gangs that engage in violent noneconomic activity. The court reasoned that the Sixth Circuit did not apply the canons of statutory construction appropriately when it interpreted the term "affect" as requiring a substantial effect on interstate or foreign commerce in cases involving noneconomic enterprises. Due to this circuit split, the issue of whether the government must show that the racketeering activities of a noneconomic enterprise substantially affect interstate commerce remains unresolved.

II. The Centrality of Race and Ethnicity in RICO's Enactment

During the first half of the twentieth century, a highly secretive and organized criminal cartel--comprised mostly of members of Italian and Sicilian descent--gained tremendous influence over the American economy. The cartel, also known as "La Cosa Nostra" or "the Mafia," profited by managing illegal gambling enterprises, selling and distributing narcotics, and running prostitution rings. It also infiltrated legitimate businesses by buying them out and conducting underground, black-market transactions to eliminate competitors.

The invisibility and secretiveness of the Mafia created an allure that captivated American society. In response to the increasing economic influence of the Mafia, Congress held an eight-day hearing on organized crime in 1951. Most hearings were untelevised at the time, but three major television networks interrupted regular programming in order to broadcast the organized crime hearings. During the hearings, Senator Estes Kefauver, the chair of Congress's Special Committee to Investigate Organized Crime in Interstate Commerce (also known as the "Kefauver Committee" after Kefauver himself), explained the severity of organized crime to the American public and warned that the Mafia already had tremendous influence in many U.S. cities. The hearings spawned two decades of congressional deliberation and research on organized crime, which ultimately led to RICO's enactment in 1970.

Organized crime was considered a relatively new and salient social problem when Congress passed RICO, but widespread organized violence had existed for decades before the statute's enactment. African Americans were common targets of organized violence for almost one hundred years after the Civil War. Many of these violent crimes were committed by small groups of White individuals, White mobs, and organized White supremacist groups. One study found that approximately 2,500 African Americans were victims of White lynch mobs between 1882 and 1930 in ten Southern states: almost every week, a Black man, woman, or child was murdered. This violence continued through the civil rights movement in the 1960s, when mob violence was used as a way to suppress and deter African Americans from exercising their civil rights.

RICO's legislative history suggests that Congress was specifically concerned about the ability of Mafia members to infiltrate legitimate business practices and obtain economic and political power. But the KKK had similar extraordinary influence within the economic and political spheres. Many politicians and business leaders, both national and local, were affiliated with the Klan. Like the Mafia, KKK members often conducted clandestine operations and hid their affiliations with the organization from the public. Despite these parallels between the KKK and the Mafia, Congress never felt compelled to pass federal legislation to address mob violence against African Americans. Organized violence against African Americans was not considered "organized crime" in the way that we think of the term today.

If organized crime plagued the United States for decades before RICO's enactment, then what was so different about the Mafia that motivated Congress to enact RICO? One significant difference was the perceived non-White ethnicities of Mafia members.

Members of La Cosa Nostra were of Italian and Sicilian descent. For decades prior to RICO's enactment, Italian and Sicilian Americans had been victims of anti-immigrant racism and violence within the United States. New Italian and Sicilian immigrants were ostracized and stereotyped as poor and racially inferior. Anti-immigrant sentiment enabled the U.S. government to frame organized crime as a problem of alien conspiracy. Converging constructions of ethnicity and criminality placed the blame for organized crime on new immigrants, and fostered the belief that organized crime was perpetuated mostly by members of immigrant populations. Ironically, most of the individuals who were prosecuted for organized crime under existing racketeering laws from 1953 to 1959, a few years after the Kefauver hearings, were neither Italian nor Sicilian.

Evidence of anti-immigrant sentiment and alien conspiracy beliefs is found in RICO's legislative history. RICO's congressional proponents did not hide their disdain for La Cosa Nostra. During the Congressional debates, policymakers equated defeating organized crime with defeating La Cosa Nostra. In 1965, five years before RICO's enactment, then-President Lyndon B. Johnson established the President's Commission on Law Enforcement and Administration of Justice. The Commission explicitly connected organized crime with Italian-American criminal groups:

Today the core of organized crime in the United States consists of 24 groups operating as criminal cartels in large cities across the Nation. Their membership is exclusively men of Italian descent, they are in frequent communication with each other, and their smooth functioning is insured by a national body of overseers . . . . FBI [Federal Bureau of Investigation] intelligence indicates that the organization as a whole has changed its name from the Mafia to La Cosa Nostra.

G. Robert Blakey, who drafted the RICO statute as a congressional staffer, commented in 1990 that the statute "was sort of like George Keenan's containment policy of the Soviet Union . . . . We tried it and, by God, it The explicit comparison between RICO and policies of Soviet containment illustrates that RICO was just as much of an attempt to protect the United States from perceived ethnic "outsiders" as it was a dedication to fight organized crime.

In concluding this historical analysis, it is important to acknowledge that RICO is still used by the federal government today to combat Mafia-related crime. These prosecutions, however, were excluded from the empirical study that follows on RICO gang prosecutions because the government did not use "gang-specific" language in its anti-Mafia efforts, even though prosecutors considered Mafia-related crime to be "organized crime." The empirical study only included RICO prosecution cases in which the government used "gang" language or terminology. Although outside of the bounds of the empirical study, the reasons for this exclusion may further suggest the complex ways in which "gang" crime has come to be socially constructed as a phenomenon involving select racial minority groups, especially Blacks, Latinos, and Asians.