In United States v. Rich, No. 18-2268 (6th Cir. Sept. 13, 2021), the Sixth Circuit enters the circuit split about whether, in a Racketeer Influenced and Corrupt Organization Act (RICO) prosecution, the government is required “to prove the existence of the enterprise, or whether an agreement to create a racketeering enterprise suffices.” The majority holds that it is enough to prove “an agreement that encompassed a future violation of the substantive RICO offense.”

“The federal government successfully prosecuted multiple members of the ‘Devils Diciples [sic] Motorcycle Club’ (DDMC) for their role in a RICO enterprise that trafficked large quantities of drugs (namely methamphetamine) and engaged in numerous other illegal acts (like violent crimes, illicit gambling, thefts, and obstruction of justice).”

On appeal, among other arguments, the defendants challenged “the district court’s instructions [as] legally incorrect because [the court] added future-tense language into each element of the offense.” The jury instruction, for instance, charged that the jury must find “the existence of an enterprise or that an enterprise would exist” [emphasis added].

The panel majority holds that the government does not have to prove a current enterprise and approves the future-tense jury instruction. It takes guidance from United States v. Salinas, 522 U.S. 52 (1997), which held that a conspirator need not have personally committed two or more predicate acts under 18 U.S.C. § 1962(c). “While Salinas did not decide the precise issue before us, several circuits have considered similar challenges to the one we address now in light of Salinas—namely, whether the government is required to prove the existence of the enterprise, or whether an agreement to create a racketeering enterprise suffices.” The panel cites the Second, Ninth, and Tenth Circuits in support.

“Section 1962(d) is a conspiracy offense, which as Salinas reminds us, criminalizes an agreement rather than any substantive criminal offense. In other words, an agreement to associate with and participate in a yet-to-be-formed racketeering enterprise that would affect interstate commerce constitutes a completed offense under § 1962(d). This is because an individual can ‘intend to further an endeavor which, if completed, would satisfy all elements of a [RICO offense],’ Salinas, 522 U.S. at 65, even if the RICO enterprise is not yet formed. We heed the Supreme Court’s instruction today.”

The dissent by Judge Donald argues that this interpretation cannot stand up to the text of the RICO statute.

“Section 1962(d) makes it unlawful to ‘conspire to violate’ RICO’s § 1962 statutory subsections (a), (b), or (c). RICO’s statute outlines four prohibitions on racketeering activity which can be used to operate or control an enterprise: (1) ‘engag[ing] in, or the activities of which affect, interstate or foreign commerce,’ 18 U.S.C. § 1962(a); (2) ‘acquir[ing] or maintain[ing] . . . any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce,’ § 1962(b); and (3) ‘conduct[ing] . . . [an] enterprise’s affairs through a pattern of racketeering activity,’ § 1962(c). Lastly, § 1962(d) prohibits conspiring to violate any of the other three prohibitions. It follows, then, that one must conspire to engage in illegal activities while being employed by or associated with an enterprise.”

The dissent cites opinions of the Seventh, Eighth, and Eleventh Circuits in support of the government having to prove an existing enterprise.