No. 98-04January 21, 1998

RICO: Conspirators Need Not Commit Predicate Acts

Supreme Court Resolves Circuit Split

A defendant need not have committed or agreed to commit two predicate acts to fall within the statutory proscription against conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§1961-1968, the United States Supreme Court recently decided. Salinas v. United States, 118 S.Ct. 469, 1997 WL 737692 (Dec. 2, 1997). The unanimous decision resolves a split among the federal appellate courts, broadening the already wide reach of this statute.

Conspirator Did Not Commit Or Agree To Commit Predicate Acts

The case before the Supreme Court arose from a criminal prosecution. Mario Salinas, a deputy sheriff in Hidalgo County, Texas, participated in a scheme in which a federal prisoner housed in the Hidalgo County jail bribed the Sheriff to permit him "contact visits" with his wife and girlfriend. A jury convicted Mr. Salinas on two counts of bribery and one count of conspiracy to violate RICO, but acquitted him on a substantive RICO count. Mr. Salinas appealed the conspiracy conviction, asserting that he could not be found guilty of participating in a RICO conspiracy absent proof that he committed or agreed to commit two predicate acts. Applying the ordinary meaning of "conspiracy," the United States Supreme Court held that Mr. Salinas' knowledge and facilitation of the illegal scheme was sufficient to support a RICO conspiracy conviction.

Interplay Between RICO Sections Clarified

Section 1962(c) of RICO makes it illegal "to conduct or participate, directly or indirectly, in the conduct of [an] enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. §1962(c). To establish a "pattern of racketeering activity" under that section, a prosecutor or civil claimant must prove that the defendant committed at least two predicate acts of "racketeering activity," which is defined as including conduct indictable under any of a variety of federal and state criminal statutes. In contrast, the RICO conspiracy statute states simply that "[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section." 18 U.S.C. §1962(d). RICO's conspiracy provision is broader than the general conspiracy prohibition applicable to federal crimes and, unlike the general conspiracy statute, does not require an overt or specific act to effect the conspiracy's object.

Prior to Salinas, three federal Circuit Courts of Appeals had ruled that the RICO conspiracy statute required a showing that the defendant committed or agreed to commit at least two predicate acts. See United States v. Sanders, 929 F.2d 1466, 1473 (10th Cir. 1991); United States v. Ruggiero, 726 F.2d 913, 921 (2d Cir. 1984); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981); see also WSP&R Bulletin No. 97-29 (Apr. 11, 1997).

Since he had been acquitted on the substantive RICO count, Mr. Salinas argued that had not committed the two predicate acts necessary to sustain a conviction for RICO conspiracy. Rejecting Mr. Salinas' argument (as well as the rule in the First, Second, and Tenth Circuits), the Supreme Court applied the conventional meaning of the phrase "to conspire" and held that the RICO conspiracy statute requires only that the defendant intended to further criminal conduct that would violate RICO's substantive prohibitions. The Court noted that this interpretation is consistent with the American Law Institute's Model Penal Code, which permits a conviction for conspiracy where the purpose of an agreement was to facilitate the commission of a crime. The Supreme Court held that, although Salinas did not commit or agree to commit the predicate acts, "[t]he evidence showed that [the Sheriff] committed at least two acts of racketeering activity and that Salinas knew about and agreed to facilitate the scheme. This is sufficient to support a conviction under §1962(d)." Salinas, 1997 WL 737692 at *10. Thus, a RICO conspirator need not have committed or agreed to commit the underlying predicate acts so long as, if conspiracy's object were accomplished, two predicate acts would be committed and the statute would be violated.

Application Of RICO Conspiracy Statute Broadened

The test adopted by the Supreme Court in Salinas broadens the RICO conspiracy statute both as a tool for prosecutors and as a cause of action available to civil litigants. To state a claim for civil RICO conspiracy after Salinas, a plaintiff arguably need only show that the defendant intended to facilitate a scheme that, if completed, would satisfy the elements of RICO. The defendant could be liable for RICO conspiracy even if somebody else were intended to commit the predicate acts, and even if the substantive crime were never completed.

Frederick A. Brodie
(212) 858-1628

Marcia L. Landesman
(212) 858-1600

The Bulletin is only a general review of the subjects covered and does not constitute an opinion or legal advice. © 1998 Winthrop, Stimson, Putnam & Roberts

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