Boyle v. United States - Oral Argument

ORAL ARGUMENT OF MARC FERNICH ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We will hear argument in Case 07-1309, Boyle v. United States.

Mr. Fernich.

Mr. Fernich: Thank you, Mr. Chief Justice, and may it please the Court:

This is a case about a defendant's right to an independent jury determination of each essential element of a RICO offense, specifically a pattern of racketeering and a separate enterprise that is more than just a duplication of the pattern.

To keep the elements apart, ensure their distinct consideration, and give the enterprise independent meaning, juries must be instructed, as in the Seventh Circuit and elsewhere, that an "enterprise" requires a structure separate from the commission of the predicate acts forming the pattern.

Justice Ginsburg: Mr. Fernich --

Mr. Fernich: Yes, Your Honor.

Justice Ginsburg: -- are we talking just about the instruction to the jury? I know you think that the instruction given here was incorrect. But is it just a question of charge error or are you saying that there was insufficient evidence of enterprise for this case to go to the jury?

Mr. Fernich: I am not suggesting, Your Honor, that there was insufficient evidence of -- of enterprise to go to the jury. My primary point is with respect to the charge. We do contend --

Justice Ginsburg: You're saying if a proper charge had been given, this jury on this evidence still could have convicted the defendant?

Mr. Fernich: We contend, to be sure, that the evidence was legally insufficient under Rule 29.

But we are pressing principally the first -- the jury- argument claim here in this Court. We do contend that the evidence was legally insufficient.

Justice Ginsburg: Did you make that -- did you make that objection in the trial court?

Mr. Fernich: Yes, we did, and we preserved it in the court of appeals as well. And there was, as Your Honor knows, no published opinion with respect to either issue, so both issues are preserved.

Now, Your Honor, under the Second Circuit rule that functionally conflates the two elements, that is enterprise and pattern, the jury in this case was not so instructed as to the need for an enterprise with an existence separate and apart from the racketeering acts forming the pattern. For that reason we contend that the judgment below must be vacated.

Justice Alito: The -- the error was the failure to give the instruction that appears on page 95 of the joint appendix? Is that the error that you are complaining about?

Mr. Fernich: Not merely so, Justice Alito.

That is why the entire relevant excerpts from the jury charge are included in the joint appendix. We objected to the entirety of the charge, in addition to requesting specific language of our own. To be sure, the principal error of which we complain in this Court is the failure of that instruction anywhere to require, as this Court required in the United States v Turkette, and as 18 U.S.C. 1962(c) itself requires, an entity with a structure separate and apart from the pattern of racketeering.

Justice Scalia: What -- what do you mean by that precisely? Suppose you have a group of people, the ringleader goes and gets a safecracker, he gets a wheelman, and so forth, all the people he needs for the crime; and he says we are going to call this the -- the Brinks Job Group, okay? We are the Brinks Job Group.

But that's the only thing that he has put the group together in order to do. But it's still a group. He calls it a group and he gets all these guys together and they -- they meet and have lunch together, and do a lot of stuff together.

Would that meet your -- your condition of a separate association from the predicate acts?

Mr. Fernich: To be sure, we would contend that it would be a question in the first instance for a properly instructed jury, but without more on the hypothetical that Your Honor has posited, the answer to that question is no. There is no ongoing decisional apparatus, no continuing directional mechanism.

Justice Scalia: Except insofar as it is directed to the Brinks job.

Mr. Fernich: Except the degree of organization, I should say, inherent in each individual predicate act.

Justice Kennedy: But you -- you imported -- I'm looking at your quotation from Turkette, at page 5 of your brief. It doesn't seem to me conclusive of your point. In order to answer Justice Scalia, you had to interpolate, to add various words. You had to say -- you said an ongoing organization with directions or something to that effect. That is not what Turkette says. Turkette says "as proven by evidence of an ongoing organization, formal or informal, that is continuing." That's all it says.

Mr. Fernich: To be sure, Your Honor, we don't contend that Turkette is directly controlling of the issue and we go through a lengthy textual exegesis in our brief of why we think that implicit in the factors of ongoing organization and continuing unit is a structure requirement. But what Turkette did unequivocally say is that there must be an entity existing separate and apart from the pattern of racketeering activity. There was no such instruction given in this case -- and the word "entity," which appears in section 1961(4) itself and appears twice in the Turkette decision, surely connotes an ascertainable structure with an existence separate and apart from the pattern of racketeering.

Justice Ginsburg: What does "structure" mean? I think you said it doesn't mean that this has to be an organization with a president, a treasurer; it doesn't mean that.

Mr. Fernich: It could mean that in an appropriate case, Your Honor. It surely would be probative --

Justice Ginsburg: What is -- what is the minimum to qualify as having a structure?

Mr. Fernich: The minimum is a separate, ongoing, continuing existence apart from the commission of the predicate acts themselves, and the members necessary to commit those predicate acts, because that by definition, I should say, is the pattern of racketeering activity; and moreover, it is also inherent in any criminal conspiracy that extends over time.

To be more specific, the bare minimum requisites for a structure would be: an ongoing directional mechanism; a continuing decisional-making unit -- decisionmaking unit, I should say -- and some sort of coherent existence between the commission of the racketeering acts themselves. Those are the main ingredients.

Chief Justice Roberts: So all you have to do, to pick up on Justice Scalia's hypothetical, is just not the Brinks job, but you have to have one more crime, and that's it; then everything you've talked about is satisfied?

Mr. Fernich: No, that is, respectfully, not what we contend, although in an appropriate case it is conceivable that a properly instructed jury may find structure on those facts. The point that we are conveying here is that this is principally a jury question, and a jury that is properly instructed will make findings, presumably, as to what the -- whether the structure was extant, and those findings would command substantial deference on appeal, as they do in the circuits that have applied a structure requirement; and it would be a relatively easy task for an appellate court to defer to the jury's findings in such a case.

There is a --

Justice Ginsburg: The jury -- the words that you asked for, what was it? "Ascertainable structural hierarchy." And suppose the judge gets questions from the jury: "Your Honor, what do you mean by ascertainable structural hierarchy?"

Mr. Fernich: I'm -- I'm sorry, Justice Ginsburg.

Justice Ginsburg: Those are the words that you wanted the judge to include in the charge --

Mr. Fernich: To be sure.

Justice Ginsburg: -- and it's your requested charge, as to say to have an enterprise you need to have -- the group has to have an ascertainable structural hierarchy. Those are the three words in your requested charge.

Mr. Fernich: Well, respectfully, Your Honor, it goes beyond that, because the end of --

Justice Ginsburg: But those -- but you did ask for those.

Mr. Fernich: I did, and --

Justice Ginsburg: And now I'm asking you, what does that mean? The judge gives your charge, the jury is puzzled: Your Honor, we don't understand what you mean by "ascertainable structural hierarchy"; would you please tell us specifically?

Mr. Fernich: Yes, Your Honor. First of all, the charge that we are asking for specifically is a charge that is given in the Seventh and Eighth Circuits which says a structure separate from the commission of the predicate acts themselves. If a jury were puzzled, in that instance the judge could, as spelled out in pages 31 through 35 of our reply brief, give examples, any number of examples that have been spelled out by the lower courts in -- that have adopted a structure requirement.

Justice Ginsburg: And some of those examples it seems are present here. One you gave was longevity, well, this has been going on for 10 years; another was a unique way of operating, and they are specialists in deposit boxes and they have look-out people and they have people who actually break into the bank, and they have a certain amount of skill.

So we have longevity, modus operandi, and a division of labor. They have some people being their lookouts and other people doing other things. So I was looking at your list in the reply brief, and it seems to me that this organization, this association of individuals, has some of those characteristics.

Mr. Fernich: Your Honor, first of all, to get right down to the nitty-gritty of the verdict in the case, it's important to focus on what the jury actually found. The enterprise as charged was a 10-year enterprise. There were three predicate acts found by the jury ranging in date from late December of 1998 through early January of 1999. So the longevity aspect is certainly something that we dispute here.

Again, to answer Your Honor, to go back to the beginning of our argument, to be sure the thrust of our argument in this Court is directed to the jury instruction in this case. It may be conceivable, we don't for a minute concede that the evidence was legally sufficient under rule 29. That said, had a jury been properly instructed and made such a finding, i.e., to find a separately structured enterprise, that would be a finding that would command significant deference, and I'd be hard-pressed --

Justice Scalia: Why -- why do you need a hierarchy? Why do you need a boss? Why can't it be a democratic mob? I mean, there is no boss and they agree that all of their decisions will be taken unanimously?

Mr. Fernich: We don't contend before this Court that it must be hierarchical per se. Certainly --

Justice Scalia: Well, that's what you requested. Isn't -- isn't that the instruction you requested?

Mr. Fernich: On the facts of this case, consistent with the examples that are spelled out comprehensively in both the opening brief and the reply brief, that is the one that we focused on. But to be sure -- to be sure, I also objected to the charge as given in its entirety. In this Court we don't press the contention that a hierarchical structure -- hierarchical structure is an irreducible minimum. We do --

Justice Souter: Well, you couldn't, could you, because the -- an organization can consist of an individual. And it seems to me that all of the requirements that you have been specifying would in an individual case be met simply by showing that there was -- there was an individual in business who had a brain.

Mr. Fernich: An individual, Your Honor, is -- is a legal entity under the first clause of 1961(4).

It means a sole proprietorship in this context. And an individual, a legal entity, as set forth in the first clause of 1961(4), by definition --

Justice Souter: Well, but, if I set up a newsstand, it's a sole proprietorship and that's all I have to do. And if I have a functioning brain, I have a decisionmaking mechanism. I remember from day-to-day what I did, so I have continuity. And -- and it seems to me that all of these requirements are -- are virtually satisfied as a matter of course by an individual who engages in any kind of business that might have interstate-commerce implications.

Mr. Fernich: And that is not an absurd result. It is a -- and it is a result that squares with the primary purpose of the statute as enacted, which was to prevent the subversion and infiltration of legitimate business by criminal elements.

Justice Souter: Oh, absolutely. But it seems to me that it -- it puts you in sort of a -- a difficult position to -- to be calling for or -- or requiring jury instructions that call for, as necessary conditions, findings of structure, continuity, decision- making, capacity and so on, when in fact on -- on at least one variety of enterprise, these conditions are -- are met virtually automatically simply by having somebody doing business in any way.

Mr. Fernich: To be sure, Your Honor, we are only calling -- and the problem only arises in the context of an association-in-fact enterprise. The great weight of authority and the plain language of 1961(4) does not define an individual as an association-in-fact enterprise. And it does not square with the plain language of the statute to call an individual an association-in-fact enterprise. And, moreover, doing so would create a whole set of other problems, distinctly --

Justice Souter: Oh, I agree, but an individual can be an -- an enterprise.

Mr. Fernich: A legal enterprise.

Justice Souter: And -- and an association, in fact, can be an enterprise. And if we accept those two propositions, then I think you've got a tough row to hoe in saying that any enterprise which is not an individual has got to have all the formal characteristics that you talk about, given the fact that those characteristics are automatically satisfied by an individual.

Mr. Fernich: We don't -- we don't press that contention, Your Honor. We specifically press it for the phrase "any union or group of individuals associated in fact, although not a legal entity." The "individual" portion appears in the first clause of the statute. The distinctness problem simply does not arise in the context of a legal-entity enterprise.

And it's important to note, as this Court said in Salinas -- recognized in Salinas ---virtually every criminal prosecution that is brought under 1962(c) is brought against an illicit association-in-fact enterprise. The -- the scenario of an individual being an association-in-fact enterprise, I don't think it's a valid association-in-fact enterprise as a matter of law.

There is a line of cases from the Seventh Circuit that says it's not.

And this structural problem, having a structure that is distinct from the pattern of racketeering activities so that the two elements, I should say, are kept separate and apart, only arises in the context of an association-in-fact enterprise, which is, of course, a very, very wide swath.

Justice Ginsburg: Would it include, let's say, a street gang? How about -- this may be before your time, but "The Lavender Hill Mob"?

Mr. Fernich: I'm sorry, Your Honor?

Justice Ginsburg: The Alec Guiness movie, "The Lavender Hill Mob."

Mr. Fernich: Oh, well, certainly we don't have any quarrel with the proposition of street gangs, and many of them are cited in our briefs. The great preponderance of typical RICO prosecutions are hierarchical, drug-type street gangs which have regimented structures. And again, to answer Justice Scalia's question, we don't contend that that is a strict necessity, but certainly they are not going to have a problem establishing a structured enterprise with a regimented drug gang.

Justice Alito: If hierarchy is not required, then I'm not clear what more -- what you think needs to be shown beyond the fact that there was an association in fact and whatever continuity needs to be shown in order to establish the pattern. What -- what needs to be shown beyond that?

Mr. Fernich: Well, Your Honor --

Justice Alito: What needs to be charged to the jury that they must find beyond that?

Mr. Fernich: We contend that they must be charged that there has to be a structure separate from the commission of the predicate acts themselves. The Seventh and Eighth Circuits use pattern jury instructions that give that precise charge. And there has been, to my knowledge, no reported difficulties --

Justice Alito: But What does that mean?

Mr. Fernich: It means -- and -- and I would take the test most prominently from Your Honor's own home circuit as spelled out in the Riccobene case: A -- an ongoing decisional-making apparatus to guide the affairs of the enterprise, a directional mechanism.

The Third Circuit in Riccobene said an overseeing, clearinghouse and coordination function, and -- and a cohesive existence between predicate acts.

Justice Alito: I -- I just --

Justice Kennedy: Basically, you described this -- this gang. One -- one person is a guard. The other person brings the hook to pull the -- the box off.

Another person scouts it out. Another person's got the scanner. It seems to me to fit precisely what you have just described.

Mr. Fernich: The gang has no structure aside from that which is a necessary incident to the commission of each racketeering act. We don't contend there has to be a formal organization, but there is no evidence of any continuing, ongoing organization other than that when they get together to commit the predicate crimes.

Justice Kennedy: Isn't it pretty clear that if the -- the person who is supposed to be the lookout doesn't perform his job, he is not going to be included in that next heist?

Mr. Fernich: There is no evidence of that in the record to my knowledge, Your Honor.

Justice Ginsburg: Isn't there a record that this is a more or less steady group that hangs out together, except when one of them gets caught and put in jail, and then they replace him with someone? But this is -- this was explained as a group that meets regularly in the Brooklyn Social Club?

Mr. Fernich: Your Honor, the testimony about the Brooklyn Social Club is -- is a little bit overdrawn, I would say. And I would direct the Court to pages 58 and 74 through 75 of the joint appendix, and this is the testimony of the witness Gerard Bellafiore, whose testimony, by the way, is the only testimony we know for a fact that the jury credited. Quote: "Just a club to hang out in, not for any type of anything."

Justice Ginsburg: But one of the members owned the club, right?

Mr. Fernich: Yes. That -- that's true.

But that -- there is no evidence in the record that they would do anything other than, for example -- and this is not in the record -- for example, shoot pool at the club. And -- and Bellafiore himself was careful to qualify it in that way so that he wasn't gilding the lily.

Justice Alito: Suppose you have a gang that gets together every Friday afternoon and by democratic means they decide what crime they are going to commit that weekend. And they are multi-talented so they -- they look at the whole list of RICO predicates, and they choose a different one each -- you know, each weekend to commit. And they do that over some period of time, and in doing that they perform different roles at different times. Is -- is that an enterprise?

Mr. Fernich: It sounds to me like a jury could -- if they are having regular Friday meetings and they are using sophisticated means to canvas the RICO statute with a degree of complexity and sophistication to figure out what they are going to do or maybe even try to evade the statute, it probably --

Justice Alito: We will take that part out of it. They don't look at the statute. They just -- whatever crime comes to somebody's mind. They -- they want to commit a crime every weekend to -- to make some money. But it is a different thing, done by different means, different roles.

Mr. Fernich: If the jury --

Justice Alito: Does that have an ascertainable structure?

Mr. Fernich: If the jury were properly instructed that there had to be a structure separate and apart from just that which is inherent in the commission of each act, a properly instructed jury probably could well find the requirements satisfied on -- on the hypothetical that Your Honor has posited.

The cases say -- the cases out of the Seventh Circuit say it is not a high hurdle. They say it's a low hurdle, and there has to be some structure, but not much -- not much to distinguish between --

Justice Alito: Well, what structure would there be there? What characteristics of that group would satisfy the structural requirement?

Mr. Fernich: The ongoing existence, the regular meetings, and the degree of sophistication employed. And it implies that they are not just sort of getting together on an impromptu basis as opportunities arise, but they are sitting around on a regular basis for a -- a continuing period of time and planning things out. What are we going to do this weekend? What are we going to do next weekend? Let's twist the hypothetical a little bit.

Maybe they project our three or four weeks ahead of time. That's what RICO is -- is getting after, some kind of sophistication, some kind of coordination. This is the crux of the statute.

Justice Ginsburg: How about during the period that this man -- what was his name, Mangia --

Mr. Fernich: Mangiavillano, Your Honor.

Justice Ginsburg: Yes. When he was running the show, it seems that he was a leader, and that the -- and that the group wasn't quite as democratic before he got sent to prison.

Mr. Fernich: Your Honor, the testimony in the record is that -- again, what was found by the jury here. The testimony is that Mangiavillano and Boyle and Bellafiore never committed any crimes together. It is -- it is very extensively briefed in -- in the lower court. The Second Circuit never addressed it. There is a long multiple-conspiracies argument. We are not going to get into that in this Court.

The fact is that Mangiavillano had nothing to do, nothing to do with the bank burglaries found in this case. There were three burglaries found as RICO -- I shouldn't say "burglaries" --

Justice Ginsburg: That wasn't what I meant.

Mr. Fernich: Okay.

Justice Ginsburg: I meant, would the organization, as it was described to exist at the time Mangiavillano was there, would that have satisfied the definition of "structure" because it had a leader?

Mr. Fernich: It may have at that point, but there was no evidence -- and -- and because it's outside of the time frame of what the jury has found, there is a lot more diversity in the criminality that was alleged during that period.

A properly instructed jury may have found that there was an enterprise existing at that time, Although I'm not even sure a jury could so find under Turkette because the core of the membership changed very dramatically over a period of time. But the leadership would be one -- to be sure, leadership is something that a jury could take into account and could permissibly find if they were properly instructed. On the facts of this case, I cannot answer that question definitively.

Justice Breyer: Could you try something out in your mind, and maybe you can't react to it. I'm trying to figure out how the structure requirement, what to say, and a thought was occurring to me which I am not wedded to, I would like some reactions to it: Is to say that there is a structure means that among this association of people there must be rules, understandings, or behavior that tend to keep the association together over time, other than those which would be essential to allow them to commit the particular crimes at issue.

Mr. Fernich: Certainly the defense would take a ruling like that, but what --

Justice Breyer: Well, I know, but I'm trying to work out in my mind, is that a sensible thing to say? The trouble with the word "structure" is everything in the universe has a structure, and so it's awfully vague? I'm trying to make it a little bit more specific.

Mr. Fernich: A structure -- the structure I don't think entails necessarily rules, regulations, et cetera. I don't think the word "structure" --

Justice Breyer: That isn't what I said. I said: Rules, understandings, forms of behavior that tend to keep the association together over time, other than those rules, understandings and associations and behaviors that would be necessary -- "necessary" meant strongly -- to commit the particular crimes at issue.

Mr. Fernich: Is Your Honor's question is that a sensible definition of "structure"?

Justice Breyer: Yes.

Mr. Fernich: Yes, it is a sensible definition of "structure."

And if there are no further questions, I would like to reserve the rest of my time.

ORAL ARGUMENT OF ANTHONY YANG ON BEHALF OF THE RESPONDENT

Chief Justice Roberts: Thank you, Mr.

Fernich.

Mr. Yang.

Mr. Yang: Mr. Chief Justice, and may it please the Court:

An association-in-fact enterprise need not have an ascertainable structure distinct from the predicate act of racketeering committed by one of its associates, whatever that means. RICO's statutory text, its surrounding context, and this Court's construction of the statute show that RICO's definition of "enterprise" is broad and contains no such limitation.

Petitioner's primary argument, that the term "enterprise" is rendered superfluous and merges with the charged pattern of racketeering acts, is wrong for at least three reasons: First, it's wrong as a formal matter. The enterprise is a group of individuals. The pattern is a series of acts. Second, it fails to account for the fact that the relevant pattern of --

Justice Scalia: Wait, wait, wait, wait, wait. I assume that he was responding to the argument that you can establish the enterprise from the mere existence of the pattern of the acts, from the separate acts. And if indeed it takes nothing more than the acts to constitute the enterprise, it seems to me he has a point.

Mr. Yang: That goes to my second reason.

Justice Scalia: Oh, so we'll forget about your first one.

Mr. Yang: Well, let me go to -- which I think it addresses the second reason. It's distinct as a formal matter, which is that have you to have find a group of individuals versus a series of facts. You can infer the group from their actions, just as can you infer, you know, a relationship between individuals by the way they act together. But --

Justice Scalia: So --

Mr. Yang: My first point is a formal one.

The second point goes straight to the statute: That the relevant pattern of racketeering acts that is at issue in RICO -- this is 1962(c) -- is a pattern of acts committed by an individual defendant, not a group. In fact, in H.J. this Court explained that the premise that the pattern has to be performed by a group or an association -- this is at page 244 of the Court's opinion there -- was wrong and that the pattern can be fully the work of an individual acting alone.

It's also wrong because an enterprise remains wholly distinct and pertinent in numerous RICO contexts under the government's interpretation.

Justice Breyer: When you say "individual," the first part of the definition of "enterprise" speaks about any individual partnership, corporation, association, or other legal entity.

Mr. Yang: That's correct.

Justice Breyer: So then, I've read somewhere that people feel that where that individual is involved, the individual is acting as an -- a legal entity such as a sole proprietorship. Is that right?

Mr. Yang: An individual can be an enterprise as a sole proprietorship, if that's the question.

Justice Breyer: I'm talking about a legal entity. And in the second clause, what we are talking about here, specifically, it is "a corporation, a union, or a group of individuals associated in fact although not a legal entity."

Mr. Yang: That's correct. I think there may be some miscommunication on my part. I would direct the Court to page 5a of the appendix which reproduces section 1962(c). It states: "It shall be unlawful for any person" -- it doesn't say "group," "enterprise" or an "association" -- "that is employed or associated with an enterprise" --

Justice Scalia: What appendix? Not the joint appendix?

Mr. Yang: Excuse me. The appendix to our brief. I'm sorry.

Justice Scalia: All right.

Mr. Yang: The gray brief. So what's relevant for purposes of showing an element of a 1962(c) violation is that the defendant alone, perhaps with others, but the element is the defendant has to commit a pattern of racketeering. There are other elements. For instance, the defendant has to do so in a manner that participates in the conduct of the affairs of the enterprise. But, of course, that embraces a wholly distinct concept, that is the enterprise.

Now, in many cases, as you have here, the pattern of racketeering activity of this defendant is proved by evidence that that defendant was also working in concert with others. And so in that case, the pattern element, which, again, is the individual's pattern of acts, is proved by the same type of evidence that would prove the --

Chief Justice Roberts: So then you'd have an easy time before the jury. And same thing with respect to the individual. All that's saying is that when you are dealing with one person, it's pretty easy to prove that he, you know, directs himself or, you know, has an ongoing plan, but that doesn't mean that it's not a separate element that the jury should have to find.

Mr. Yang: We don't say that it's not a separate element, and we also don't say that a pattern necessarily would --

Chief Justice Roberts: Well, you say that it's not distinct from the underlying offenses.

Mr. Yang: No, I don't believe so. I think what we have said is that the evidence regarding the pattern of activity allows the jury to infer the existence of an enterprise because an enterprise --

Chief Justice Roberts: But they don't have to be separately instructed that they have to find that, do they?

Mr. Yang: No, they do. And in fact the jury can --

Chief Justice Roberts: What is the instruction that the Seventh Circuit and the Eighth Circuit give that you don't think is necessary?

Mr. Yang: The instruction is pertaining to an ascertainable structure distinct from the pattern of racketeering. Here you still have to show an enterprise, and the jury may not infer an enterprise from the pattern, but certainly it's open to the jury.

When that pattern -- again, a pattern is an individual's conduct -- but when that pattern is shown through evidence that the individual is acting with others over a long period of time -- to either establish that it's a pattern of racketeering activity, if that same evidence not only shows that the individual committed a pattern of racketeering activity, but it was done in concert with others and that the -- that evidence shows that a group of individuals had associated in fact for the common purpose of engaging in criminal conduct.

Justice Alito: Would you agree there could be a situation in which an individual engages in a pattern of racketeering activity together with other people and yet is not participating in the affairs of an enterprise through the pattern of racketeering activity?

Mr. Yang: Well, I think that's the case that we gave -- an example that we gave in our brief, which is saying an individual commits a very long string of bank burglaries and -- actually, make it robberies.

Robbery is a predicate act; burglary is not. Bank burglaries with individuals, but each time he does it, it's with a different group of individuals. There you -- the individual would be established -- you could establish a pattern from, say, the relatedness of the crimes to an M.O. or a -- and in the long continuous string of crimes, more than a few months, perhaps years.

But it would not establish an enterprise.

Justice Alito: And what is -- why would it not? What --

Mr. Yang: Because there would be -- you would --

Justice Alito: What's lacking there?

Mr. Yang: What would show is that the individual is not working in concert with others to achieve an end. There's no parallel identity between any two of the crimes except for the individual acting alone.

Chief Justice Roberts: I thought an individual -- I thought an individual could be the enterprise?

Mr. Yang: One -- he could be --

Chief Justice Roberts: An independent contractor rather than an employee.

Mr. Yang: He could be an enterprise but not one -- when an individual acts an alone as an enterprise, the individual is not liability for racketeering acts under 1962(c) under this Court's decision in Cedric Kushner, because there's a requirement in 1962(c) that the individual has to be employed by or associated with the enterprise. And this Court has explained that you have to have some distinctiveness between the enterprise itself and the individual.

So with respect to the individual, there would be no -- there might be an enterprise. It is conceivable that he could be deemed an enterprise, but not one that has any relevance for RICO purposes under 1962(c).

Justice Alito: What if he has a list of 25 people who may, on various occasions, want to participate with him in bank robberies? So whenever he gets the urge to commit a bank robbery, he gets out his rolodex and he picks one or more of them and calls them up and they commit the bank robbery?

Mr. Yang: I guess it's unlikely that the government, if that were the only fact, could show an enterprise. If there was some additional evidence that the individuals had gotten together and said, yeah, you know what, call me, let's work together, when I'm available call me, but it just happens he never called me twice.

Justice Alito: What is the element, then, that is missing?

Mr. Yang: Well, what's required under this Court's decision in Turkette, which we think flows directly from the language, any group of individuals associated in fact, is that the group of persons must be associated together for a common purpose of engaging in a course of conduct. And that could be shown, as Turkette explained, by evidence of some kind of ongoing organization, formal or informal, that -- whose associates function as an ongoing unit.

And in order to prove through one's actions with others that there is an entity -- some agreement and continuing unit behind it, you are going to have to show some identity in the group. If there is no identity except for one person, it would be very difficult to show an enterprise.

Justice Souter: Why -- I guess that's where I'm losing the argument. Why is it difficult?

Mr. Yang: It would be difficult to prove an association in fact. I'm sorry. It would be difficult to prove an association in fact of more than one person as the enterprise in that context, because it would be difficult to show that that person had joined with others for the common purpose of engaging in a course of common conduct. It would just be a series of distinct crimes.

Justice Souter: Then why don't you dispense with the association-in-fact category and simply go with the individual?

Mr. Yang: That was my answer to the Chief Justice's question, because under 1962(c), there has to be distinctiveness in that context.

Justice Breyer: Two people -- two people walk along the street and know each other, suppose that's the example, and one of them says I have a great idea. Let's go in and take some money out of the post office. The other says, what happens if a policeman comes? The first one says, we'll bribe him. Okay.

Then they do it. That's it. Period.

Now, of course that's illegal. But is RICO supposed to catch that?

Mr. Yang: No.

Justice Breyer: What is it that keeps them out of it?

Mr. Yang: Well, RICO requires, among other things, a pattern of racketeering.

Justice Breyer: Well, here we have two -- two -- two related crimes.

Mr. Yang: Well, they can be related, but under this Court's decision in H.J. you also have to show continuing criminal conduct.

Justice Breyer: There was between the two.

Mr. Yang: Well, no. That has a particular meaning under H.J., which is that it has to extend over an extended period of time.

Justice Breyer: That is the bribery. What happens if three months from now the postal inspector comes to catch us, we will bribe him.

Mr. Yang: Well, again, I'm not sure that that would meet the continuing aspect, either because it's a threat of continuing activity or because it would satisfy the closing continuity.

Justice Breyer: You are quite right, I agree with you that these are different efforts to try to catch the same problem. And the problem is that I don't think anyone sees that the simple conspiracy in carrying out of two criminal offenses by several people together without more -- without something more should violate RICO. I think your answer to that would be you agree with that, but tell me if you don't.

And then if you do agree with it, the very difficult problem is to figure out how to get the people to clearly show a pattern or not.

Mr. Yang: I think I agree with that proposition. But what needs to be shown is that there needs to be an enterprise. Sometimes the enterprise in cases are lawful enterprises; sometimes in cases it involves an unlawful organization or unlawful association in fact, like we have here. And that is shown -- the statutory requirement, as explained in Turkette, is simply that this group of people associate together for a common purpose of engaging in a course of conduct.

Now, when you have a long -- a series, like we have here of racketeer -- of crimes. These sets of crimes went on for almost a decade, involved dozens and dozens of bank heists.

Chief Justice Roberts: In fact, your friend said that the period the jury found was just a couple of months.

Mr. Yang: Yes, that concerns the predicate acts of racketeering. This is -- this raises another important issue, which is, the group largely was committing bank burglaries. Those are not predicate acts. The predicate acts here under RICO involve the interstate transportation of stolen funds. There were three of those that were charged as the predicate act, and the jury found those to constitute a pattern.

But what this group of individuals were doing, is they were associating in fact for a very long period of time, committing dozens of bank -- bank burglaries, and did so sometimes with the interstate transportation -- that's what brought --

Justice Scalia: And -- and were they shown to the jury, all of those bank burglaries?

Mr. Yang: Oh, there were many things shown to the jury.

Justice Scalia: So it is not at issue in this case whether -- whether the entity can be --

Mr. Yang: I have to say --

Justice Scalia: -- derived simply from the predicate acts?

Mr. Yang: I have to say I'm a little perplexed at this stage in the litigation based -- how we got here based on the objection that was made to the district court. The objection that was made, which was a J.A. 95, was that there was an ascertainable structural hierarchy which seems to be abandoned at this point, distinct from the charged predicated acts of racketeering, that was repeated at 103, 108, and 109.

And then there was also an objection that the entity has to have a particular or formed structure, and that has been abandoned and also inconsistent with Turkette, which recognized that this could be an informal association.

And, in fact, there was not an objection to the entire charge. Counsel at page J.A. 97, after -- when the court explained that it was going to address his proposed charge at J.A. 95 said, you know, I have some specific objections to the charges written, and then went through them, and raising those two objections as we've just discussed here.

So, we've kind of evolved in terms of what this case is all about. And even if the Petitioner were right, I don't think he could prevail, even under the charge he wants in this case.

But let me turn to a few anomalies with respect to Petitioner's interpretation of a structure.

Justice Ginsburg: Before you do that, Mr.

Yang, could you give us a sense, if you know it, about the practical results of the different formulas that -- there are at least three formulas, I take it that the different circuits have approved. In the result of the RICO prosecution, does it really make a difference which one of these is charged or do they could out the same way, anyway?

Mr. Yang: It will make a difference in some cases. There is a case called Bagaric that this Court cited in its National Organization for Women Against Scheidler. In there, there was a -- the -- involved a group of Croation nationalists, loosely knit, who agreed to promote their anti-Yugoslavian through a series of acts they committed over a series of years, extortion, murder, bombings. There was no structure, it would be very difficult to fit into the ascertainable structure distinct from the predicate act of racketeering that Petitioner espouses.

There are other cases involving loosely knit gangs such as neighborhood thugs. The Nascimento case involved a neighborhood group of thugs that protected each other, and that was their common -- common bonding element through killing rivals or intimidating witnesses. There's no hierarchy there. There were no colors, no initiation rights. But this went on for over a long period of time.

But beyond the classic cases that might fall outside RICO, if the Court were to adopt an ascertainable structure requirement, I think as Petitioner's laundry list of -- of examples -- unless my -- his reply brief illustrates, that is going to involve a long course of case-by-case adjudication.

Justice Breyer: What did you think -- what did you think of the -- probably not much of it, but what did you think of my effort there? And I am trying to point out, as you see, I am open to anything that will deal with what I think of as a functional problem and the functional problem is exhibited by that Posner example I gave you or by two investment companies that decide, what we will do is we will issue a letter that is going to be shown to two different people; that is their only association; or maybe 100 people, but they know who they are, and they are going to be shown this letter over a period of five or 10 years, and someone later comes back and says there is a false statement in the letter. Well, they shouldn't issue a false statement, but is that RICO? I mean, so -- so the object -- the object is to find a way of not overextending RICO where there is nothing there but a conspiracy to commit two crimes.

Pattern is one help. The pattern is pretty vague, so all the courts but one have come along, I take it, with this other help, which is playing on the word structure.

Now you have heard what I said as a weak effort to try to do something. What is your best effort to do something to deal with the problem? Or what's wrong with my effort? Whatever you want to say.

Mr. Yang: Let me first address what is your underlying concern, that there is a problem. Turkette addressed that; Turkette addressed that it doesn't matter that the evidence used to establish these separate elements may in case of --

Justice Breyer: That's different.

That's -- of course the same evidence can establish two separate elements.

Mr. Yang: The --

Justice Breyer: The problem will be conflating the elements so that every single case that you have the first set, you also have the second set.

Mr. Yang: That problem does not exist as well, because the relevant pattern of racketeering activity that is the element of the crime is something committed by individuals.

For instance, let's take a group of individuals who commit a long string, of, for instance, burglaries, they do so over a series of years. Bank burglary is not a predicate act of racketeering; it's a wholly criminal organization; all they do is commit bank burglaries. One individual is given the money at the end of the -- of each burglary. What we would have there is a RICO violation after the individual, because the individual, the element is that the individual has transported the money in interstate transportation -- or across State lines, and that is a RICO predicate; but the other things that the group was doing, those are not RICO predicates.

Justice Breyer: No, no.

Mr. Yang: So the -- so the element, it doesn't change, if the individual then does it with some other people -- let's say he brings his buddy along, two of them do it, that just shows the evidence necessary to show that the individual -- the evidence showed that the individual committed a pattern of racketeering, also happens to show he did it with a group, but it's the evidence, not the element. The element of the crime in section 1962(c) always turns on the defendant.

Justice Breyer: Always, in a case where you sue the investment company because of their one letter used four times, it's the act of the individual. In the case that Posner used, it's always the act of the individual. There's always a criminal act of an individual.

Mr. Yang: But if you have --

Justice Breyer: And he has to be associated, however, with an enterprise for it to fall within RICO, and there also has to be a pattern.

Mr. Yang: If we take --

Justice Breyer: That's going back --

Mr. Yang: -- my hypothetical with the individual transporting the money alone across State lines, you have a pattern. If you just looked at that, individual taking money across State lines, by himself, that doesn't establish enterprise. What would -- so the pattern exists independently.

What would show the enterprise is the fact that the evidence might also show that he is doing it with other people. That would show that he -- the element that is, that he is committing a pattern of racketeering activity and he is doing it in concert with others, but that goes to the separate element of enterprise. That is --

Justice Breyer: That's right, and our problem is he is doing it with one other person whom he met once, and they agreed to do it, and it's a common law conspiracy; and now suddenly he has done it twice with another person who helped him and they said they would do it, and now we have RICO; and my belief is -- which you may not agree with -- that that common garden-variety conspiracy to say, rob a bank and then transport the money a few months later, that that's all that's at issue. That shouldn't be within RICO.

Mr. Yang: Let me --

Justice Breyer: You might come back and tell me it should be.

Mr. Yang: Let me try to approach that in two separate ways. One, Turkette in footnote 5 was very clear. The Court explained even if the pattern of racketeering activity and the enterprise are established the same way, it doesn't matter, if enterprise has function -- some function, there is no such thing as, in other words, partial superfluidities of an element, or partial superfluidity of a word.

Secondly, the concern about conspiracy exists in any conspiracy. Conspiracy is an inchoate act. You are liable for conspiracy as soon as you made the agreement, and under 371 commit an overt act or under RICO conspiracy agree to all the necessary elements of a substantive RICO offense.

Congress has -- and not only that, you can be charged for conspiracy and charged for completing the conspiracy as separate crimes. That's the normal rule.

That's the normal rule here. You can be charged for a conspiracy to commit RICO offenses, and RICO offenses, the pattern element I don't think can be overestimated here.

The pattern element is where RICO has -- plus the list of predicate acts of racketeering -- is really where RICO gets most of its limiting structure, and I think the Court recognized that in H.J.

It's the pattern which requires related criminal acts that can be related in a number of ways, and the -- the Court gave kind of a list of that in H.J., which I think I won't go through now, but as well as continuity, and that could be long-term criminal activity, not just a single or two, but long-term criminal activity, or the threat of criminal activity.

Interestingly enough --

Justice Scalia: I am -- I am really confused now. I don't -- I am not sure I know what your answer to the question presented is, which is quite simply must an association-in-fact enterprise under RICO have some ascertainable structure beyond that inherent in the commission of predicate crimes by its members and associates? And you -- your answer is no?

Mr. Yang: No. I mean, I guess it depends on what you mean -- ascertainable structure --

Justice Scalia: Yes.

Mr. Yang: It's very -- I have to say it's difficult for me to understand what is being proposed by the other side, particularly once you have lost hierarchy. Hierarchy is something which is an understandable term.

Justice Scalia: Right.

Mr. Yang: But if you are talking about structure, structure could mean relationship between individuals that enable them to --

Justice Scalia: Right, right.

Mr. Yang: -- commit their crimes. If that's the case --

Justice Scalia: Yes.

Mr. Yang: -- I don't see why a jury cannot infer from the fact that over a long period of time the alleged members of this group have operated as a unit and have committed acts of racketeering, from that coordinating conduct that you were not able to infer that they had a means of acting as a group.

Justice Scalia: Yes, but you would have to tell the jury -- you would have to tell the jury you would have to find it. Of course the jury can find it, but the issue is must the jury be told that it has to find it? I think he's conceding --

Mr. Yang: Must the jury --

Justice Scalia: Be told it's not enough, ladies and gentlemen of the jury, for you to find that these predicate acts occurred; you must find -- and you can find it just from the predicate acts, if you think the evidence will justify that -- you must find an organization separate from the mere commission of the predicate acts.

Mr. Yang: What does that mean?

Justice Scalia: I don't know.

(Laughter.)

Mr. Yang: Because Turkette makes very clear that an association-in-fact enterprise can exist for wholly criminal acts. So if for instance, take a few hypotheticals. Let's say a group forms for the basis of committing just only predicate acts of racketeering, they do that. Nothing else, just predicate acts, over a 10-year period.

Justice Scalia: Right.

Mr. Yang: All right? One formulation of petitioners is you have to look at the charged pattern of racketeering acts, presumably because then the jury has to find the charged pattern and then that has to be distinct from the enterprise. If that is the case -- let's say there is 100 predicate acts of racketeering.

All that does is say that the government has to show 99 and leave the last one uncharged. That makes no sense.

To the extent that Petitioners say that okay, there has got to be some -- something other than racketeering activity, take for instance, the group that does wholly legal, but does criminal non-racketeering acts as well as racketeering acts; that's in fact this case. Bank robberies and -- excuse me, bank burglaries, which is not a predicate act, and interstate transportation of funds. It would be wholly anomalous to exclude a group that only did bank robberies, which are predicate acts, but include a group that was only partially racketeering but wholly criminal.

Chief Justice Roberts: Not at all; not at all. That would make a lot of sense, because RICO is not intended just to bring in the crimes. They are look for something else. They are looking for an organization that is involved in these types of things.

Mr. Yang: But there is nothing -- there's -- in order to find an organization, you are not going to see any more from criminal acts that are not racketeering versus criminal acts that are. Both of them show --

Justice Kennedy: But -- but you -- you would instruct the jury that if these three thefts that are covered by RICO occurred over a period of a year, and they involved lookouts and scanners and so forth, you may infer from these acts an enterprise as defined by the statute?

Mr. Yang: They might.

Justice Kennedy: You would allow that instruction?

Mr. Yang: You -- yes, but there would have to be more. You have to explain what would be necessary to show an enterprise. And in fact the -- the appendix to the --

Justice Kennedy: Where -- where in your briefs or in the materials do we find the definition of what the enterprise is, other than in the statute, other than the terms of the statute itself?

Mr. Yang: I believe page 17.

Justice Kennedy: I mean, in other -- what do I refer to in order to supplement the instruction that I just noted -- that I just suggested?

Mr. Yang: Page 17 of our brief reiterates the standard, I believe it's Turkette, it comes from Turkette and in the appendix to petition -- or excuse me, to the joint appendix, the charge is at pages 111 through 113. That's the charge.

Justice Kennedy: That's at the bottom of 111 where it said you can look to see what it does and make the inference rather than have -- I forget -- an abstract analysis?

Mr. Yang: But it goes on to say that you must -- the government must prove that there is an ongoing organization with some similar framework, formal and informal, for carrying out its objectives and various members and associations of the association function as a continuing unit to achieve a common objective.

The government must prove that in every case. In this case, this is not in the J.A., but it is in the court of appeals appendix at page 8770, the district court specifically charged the jury that they must find five separate elements of a RICO offense, including the existence of an enterprise as one; two, that the enterprise engaged in or its activity affected interstate or foreign commerce; three, that the defendant was associated in it.

Eventually you get down to five, that the defendant knowingly participated in the conduct of the affairs of the enterprise through a pattern of racketeering.

So the district court explained you have to define an enterprise. And to find an enterprise, what's a necessary element, it said you may infer an enterprise from what the --

Chief Justice Roberts: You say enterprise.

I mean, the objection is that the enterprise is no different than the various predicate acts.

Mr. Yang: It is different in the sense that you can have a series of predicate acts without an enterprise, you can have an enterprise without a series of predicate acts. Now what, the objection seems to be ultimately that the evidence needs to show the predicate acts of racketeering may also prove that the enterprise exists, because when you show predicate acts of a defendant, which is the only element, he doesn't have to work in concert with others to commit the predicate acts of racketeering, but when you show the predicate acts with evidence that individual is acting with others, you can also show that they have -- there is an association in fact of individuals who joined together to pursue a common course of conduct. Thank you, Your Honors.

REBUTTAL ARGUMENT OF MARC FERNICH ON BEHALF OF THE PETITIONER

Chief Justice Roberts: Thank you Mr. Yang.

Mr. Fernich, you have four minutes remaining.

Mr. Fernich: Thank you, Your Honor.

Very briefly, nobody disputes the proposition that a properly instructed jury would be able to find that racketeering acts committed by an individual is a distinct element from the association-in-fact enterprise. The government is absolutely right and we agree on that score. The problem is the lower courts have misread Turkette. They are not focusing on the pattern of activity committed by the individual; they have -- and the instruction as Justice Kennedy himself quoted in this case encapsulate it -- encapsulates the problem.

Comments -- and this is at the bottom of J.A. 1111. Common sense suggests that the existence of an association in fact is oftentimes more readily proven by what it does -- it does, not rather than what an individual member does -- rather than by abstract analysis of its structure.

So it only raises a further vagueness problem. We agree that patterns of racketeering activity are properly committed by individuals. If you are going to define the enterprise solely or principally by virtue of the pattern, whose pattern would you define it by? It doesn't even make any sense. And in Turkette, it -- with respect to what occurred in Turkette -- and this is at page 5 of my brief, the latter -- and this is a quote from Turkette, and it is referring to a pattern: "The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise."

We agree in the abstract that a properly instructed jury, that the pattern and the enterprise are totally different things. The problem is it's a giant circular argued by the government. Juries are not being properly instructed in that regard, and that only compounds the vagueness of the statute.

The second point I would like to make: the government presses its principal definition of an enterprise in its brief, and what I hear here from the government is its common purpose. Common purpose. And I would like to direct the Court to the Salinas opinion which discussed RICO conspiracy. It's at 522 U.S. -- well, I will give you the -- let's try 118 S. Court 477.

It looks like common purpose is the hallmark of a conspiracy. This is in the discussion of a conspiracy: "We rejected argument X because it would erode the common law principle that so long as they share a common purpose, conspirators are liable for the acts of their co-conspirators, which is the Pinkerton doctrine which collapses 1962(c) into a general conspiracy statute, if you are going to define an enterprise principally by virtue of its common purpose.

My second point.

As far as the claim that somehow we didn't object sufficiently to a charge, I am not going to address that in any depth. I would just direct the Court to pages 97 through 109 of the joint appendix. It -- it spells out exactly what we objected to, and we objected to virtually every sentence of the instruction that defines or purports to define an association-in-fact enterprise.

As far as the definition of the enterprise, we would certainly agree with Justice Breyer's formulation that something to differentiate it as a long-term, goal-directed, decisionmaking apparatus that continues in the intervals between the predicate acts would do it, but we contend that structure is largely, it's a plain English word, it's not antidisestablishmentarianism or something like that; the jury should be instructed as in the Seventh and Eighth Circuits that there has got to be a structure separate from the pattern. If the jury has questions, we have lots of faith in district judges, as Justice Ginsburg pointed out; that if the jury comes back with a question the judge could list examples tailored to the appropriate case.

And I just want to hit the common -- the purpose underlying RICO here. It's very significant in my view that bank burglaries are not in fact RICO predicate acts, and if you were to look -- if this Court were to look at my court of appeals brief in this case, bank burglary is not a RICO predicate act for a reason.

Congress made the judgment that bank burglaries are adequately handled by the States, that the States can prosecute them. And the reason why the three bank burglaries had to be addressed up as interstate transportation of stolen money is this is not really a case in which RICO is properly invoked.

It's fully briefed in my court of appeals submission. These are State crimes that a State is perfectly capable -- capable of handling on its own.

And unless there are any further questions, I would waive any further rebuttal.

Chief Justice Roberts: Thank you, counsel, the case is submitted.

(Whereupon, at 12:17 p.m., the case in the above-entitled matter was submitted.)