The Supreme Court last week in Boyle v. United States, No. 07-1309 (June 8, 2009) declined to limit association in fact enterprises under RICO to those having the characteristics of "business-like" entities. In so doing, the Court made it easier for the government to charge RICO against looser confederations of criminal groups, like drug and bank robbery gangs, which lack the formality of traditional organized crime families, and expanded the reach of civil RICO, as well.
The Boyle case involved a group of multi-state bank robbers who lacked a defined leader or individual, fixed roles, but who came together periodically over a period of years to plan and carry out heists. Convicted of substantive RICO, 18 U.S.C. § 1962(c), and RICO conspiracy , 18 U.S.C. § 1962(d), the defendants appealed the trial judge's refusal to charge the jury that it was required to find that their association in fact had an ongoing organization, a core membership, and a hierarchical structure distinct from the predicate bank robbery acts. The Second Circuit affirmed the judgments of conviction, and the Supreme Court affirmed.
The Court's 7-2 decision, in an opinion by Justice Alito, rejected the claim of the dissenters that a RICO enterprise was limited to "business-like entities" because the text of the statute imposed no such requirement. The only structural requirement was that an association in fact have a purpose, a relationship among the members, and some longevity. Justice Alito wrote that RICO does not require further that there be internally consistent or fixed roles or any formality to the association. "The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies." The majority's mocking tone could be said to be describing a condominium association, rather than a typical criminal gang, emphasizing the absence of any need for such proof on the government's part.
The practical result of the decision in the criminal arena may be limited, given the increased use of money laundering charges to supply the forfeiture remedy and extended sentences once available to the government only through RICO. Nevertheless, the decision lowers the barriers to plaintiffs seeking to use RICO civilly to enhance their leverage against defendants and force settlements.