RICO's New Frontier: a Deep Dive Into How Prosecutors Are Stretching the Statute's Enterprise Element

The Shifting Definition of "Enterprise" Under RICO

In my 25 years as a federal prosecutor and now as a defense attorney, I have watched the Racketeer Influenced and Corrupt Organizations Act, codified at 18 U.S.C. §§ 1961-1968, transform from a scalpel aimed at Cosa Nostra into a sledgehammer wielded against almost any group of people who commit two or more predicate acts. The statute's definition of "enterprise" in § 1961(4) includes "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." That last clause—"group of individuals associated in fact"—has become the government's favorite playground. Historically, the Supreme Court in *United States v. Turkette*, 452 U.S. 576 (1981), required that an association-in-fact enterprise possess three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit the associates to pursue the enterprise's purpose. But modern prosecutors are now arguing that "relationships" can be as thin as a single common goal, and "longevity" can be measured in weeks rather than years. I have seen indictments where the alleged enterprise is nothing more than a handful of people who agreed to commit three frauds over a two-month period, with no hierarchy, no rules, and no continuity—yet the government still calls it a RICO enterprise.

How Prosecutors Are Weaponizing "Associated in Fact" Theory

The most aggressive expansion I have encountered involves what prosecutors call the "hub-and-spoke" enterprise, where a central figure or entity coordinates with multiple independent actors who have no direct relationship with each other. Under traditional RICO law, a hub-and-spoke structure without a "rim" connecting the spokes was insufficient to establish an enterprise—a point the First Circuit made clear in *United States v. Boylan*, 898 F.2d 230 (1st Cir. 1990). Yet in recent years, I have seen the Department of Justice file indictments alleging that a single real estate developer, a single corrupt politician, and dozens of unrelated contractors who each paid bribes on separate projects constitute a single enterprise. The government's theory is that each contractor knew other contractors were paying bribes, and that shared knowledge creates the "rim." That is a breathtaking stretch. Under Federal Rule of Evidence 404(b), evidence of other acts is generally inadmissible to prove propensity, but in RICO cases, the government now uses those other acts to define the very structure of the enterprise. Defense attorneys must object vigorously at the pretrial stage, arguing under Federal Rule of Criminal Procedure 8(a) that misjoinder of defendants occurs when the alleged enterprise lacks the structural cohesion required by *Turkette*.

The Erosion of the "Ascertainable Structure" Requirement

Perhaps the most critical battleground in modern RICO litigation is whether an association-in-fact enterprise must have an "ascertainable structure" beyond the mere agreement to commit the predicate acts. The Supreme Court in *Boyle v. United States*, 556 U.S. 938 (2009), held that an enterprise need not have a hierarchical structure or a formal chain of command, but it must have "an ongoing organization, formal or informal, and . . . functions as a continuing unit." The Court explicitly rejected the argument that an enterprise is nothing more than the sum of the predicate acts. Despite this clear holding, I have watched prosecutors in the Southern District of New York argue that a series of coordinated cyberattacks by anonymous actors who communicate only through encrypted messaging apps constitutes an enterprise because they share a common ideological purpose. In one case I handled, the government's enterprise allegation relied entirely on a single chat log where participants used the phrase "we are in this together." That is not an enterprise—that is a conspiracy under 18 U.S.C. § 371, which carries a maximum of five years, not the 20-year maximum that RICO authorizes. The difference matters enormously, and defense counsel must force the government to prove what *Boyle* actually requires: a structure that "functions as a continuing unit," not just a collection of people who commit crimes at the same time.

Practical Defense Strategies for Challenging the Enterprise Element

When I defend clients against RICO charges built on an expanded enterprise theory, I start with a motion to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), arguing that the indictment fails to state an offense because the enterprise allegation is legally insufficient. This motion must be filed before trial, or the issue is waived. In that motion, I demand that the government identify with particularity the structural features of the alleged enterprise: its purpose, its hierarchy (or lack thereof), its decision-making processes, and the duration of its existence. I cite *United States v. Applins*, 637 F.3d 59 (2d Cir. 2011), which held that the government must allege more than a "simple conspiracy" to establish a RICO enterprise. I also push for a bill of particulars under Federal Rule of Criminal Procedure 7(f), forcing the government to specify which predicate acts were committed in furtherance of the enterprise's affairs rather than for individual gain. At trial, I request a jury instruction that tracks the language of *Boyle* verbatim, emphasizing that an enterprise must have "an ongoing organization" and must "function as a continuing unit," not merely as a series of disconnected criminal acts. If the government cannot prove these elements, the RICO count must fail, and my client faces only the underlying predicate offenses—a dramatically lower sentencing exposure.

If you or your organization is facing a RICO investigation or indictment built on an expanded enterprise theory, you need a defense team that understands these nuances. The government is pushing the boundaries of this statute every day, and without aggressive pretrial advocacy, you may find yourself fighting a RICO charge that should never have been brought. Contact our firm today for a confidential consultation. We will analyze the government's enterprise allegations, identify every legal deficiency, and build a defense strategy that holds prosecutors to the strict requirements of the statute. In my 25 years of experience, I have learned that the best time to challenge a weak RICO case is before the indictment is returned—but if it is too late for that, we will fight every step of the way to ensure the government proves every element beyond a reasonable doubt.