87 Colum. L. Rev. 661, *

 
Copyright © 1987 The Columbia Law Review.

Columbia Law Review

MAY, 1987

87 Colum. L. Rev. 661

LENGTH: 47752 words



ARTICLE: RICO: THE CRIME OF BEING A CRIMINAL, PARTS I & II. *

SEC-NOTE-1:

* These are the first two parts of a four part Article. Parts III and IV will appear in the next issue of the Columbia Law Review.

NAME: Gerard E. Lynch **

BIO:

** Professor of Law, Columbia University. B.A. 1972, J.D. 1975, Columbia University.

SUMMARY:
  ... One of the most controversial statutes in the federal criminal code is that entitled "Racketeer-Influenced and Corrupt Organizations," known familiarly by its acronym, RICO. ... For example, Blakey and Gettings assert that "[w]hile RICO had its origins in previous attempts to curtail organized crime infiltration into legitimate business, S. 1861, when redrafted and introduced, had a broader purpose; it was directed at all forms of 'enterprise criminality.' ... The trial of the RICO indictment differs in no significant respect -- save perhaps for the offering of evidence relating to a possible forfeiture verdict -- from a trial of a hypothetical indictment charging only the predicate acts themselves. ...  

TEXT:
 [*661]  One of the most controversial statutes in the federal criminal code is that entitled "Racketeer-Influenced and Corrupt Organizations," known familiarly by its acronym, RICO. 1 Passed in 1970 as title IX of the Organized Crime Control Act of 1970, 2 RICO has attracted much attention because of its draconian penalties, including innovative forfeiture provisions; its broad draftsmanship, which has left it open to a wide range of applications, not all of which were foreseen or intended by the Congress that enacted it; and the sometimes dramatic prosecutions that have been brought in its name. 3

RICO's complexity has attracted several efforts to unscramble the many issues of interpretation it poses. 4 The potency of its sanctions and the procedural advantages it bestows on prosecutors have drawn polemics of praise 5 and criticism 6 from practitioners and scholars with  [*662]  ties to law enforcement or defense practice. Yet there has been little discussion of the fundamental questions RICO poses concerning some of our basic assumptions about criminal law and procedure.

One reason for this lack of discussion may be that the uses of RICO that most starkly raise the issues I have in mind were not contemplated in the congressional debates about the statute and have become more clearly dominant with the passage of time. Congress viewed RICO principally as a tool for attacking the specific problem of infiltration of legitimate business by organized criminal syndicates. 7 As such, RICO has hardly been a dramatic success. Few notable RICO prosecutions have dealt directly with this sort of criminal activity. 8

Instead, prosecutors have seized on the virtually unlimited sweep of the language of RICO to bring a wide variety of different prosecutions in the form of RICO indictments. All but ignoring those subsections of RICO that directly prohibit the act of infiltrating legitimate business by investment of illicit profits or by illegitimate tactics, 9 prosecutors have relied principally on the expansive prohibition of the operation of an enterprise through a pattern of racketeering activity 10 to strike at those -- whether or not they fit any ordinary definition of "racketeer" or "organized criminal" 11 -- who commit crimes in conducting the affairs of businesses, labor unions, and government offices.

More importantly, a large proportion of RICO prosecutions, and the greatest number of the most visible ones, have been directed at the operations of illegitimate criminal enterprises themselves. Through an expansive (though quite literal) interpretation of section 1962(c), prosecutors have moved directly against "organized crime" itself, in both  [*663]  the narrow and broad senses of the term. In cases of this sort, defendants have been tried for engaging with others in series of crimes having looser connections than have traditionally been permitted even in conspiracy prosecutions. 12 Although particular "predicate acts" must be proven, such prosecutions tend to focus not on the defendant's particular anti-social acts, but on whether an examination of broad stretches of the defendant's criminal career and those of his associates reveals that he has associated himself with a criminal combine. Necessarily, RICO prosecutions put before the jury charges that a particular defendant engaged in not just one but several, often very loosely related, crimes, and frequently also present an equally ill-assorted set of charges against codefendants. 13

These creative uses of the statute present a number of interesting questions. First, how did a statute originally conceived to serve a particular, relatively narrow purpose come to be drafted and interpreted as an all-purpose prosecutorial tool? Part I of this Article suggests that the answer is to be found in the practical and theoretical deficiencies of the original RICO idea, and in a legislative dynamic by which the problems of draftsmanship caused by those deficiencies were solved by repeated expansion of the statutory coverage. Second, what in fact have prosecutors done with such a flexible instrument? Part II argues that, given a weapon that could be used against virtually any kind of criminal behavior, prosecutors have responded by using RICO in a few identifiable patterns, which correspond to what law enforcement officials apparently believe to be substantive and procedural gaps in the federal criminal code.

Part III 14 addresses what I believe is the most innovative and questionable feature of RICO, its use as an expanded conspiracy statute to prosecute members of criminal enterprises for an assortment of criminal offenses. That part of the Article asks whether the statute represents a departure from traditional models of criminal law and procedure, and whether the model it adopts should be perpetuated. Part III concludes that this use of RICO represents a continuation and expansion of trends visible in federal conspiracy law that move away from a traditional concentration on assessing conduct in specific transactions and toward the presentation of broader patterns of conduct and association in criminal proceedings. It is argued that such RICO prosecutions should not be understood simply as illegitimate departures from accepted norms. Rather, the prosecutorial and judicial expansion  [*664]  of RICO is a product of the greater knowledge of the nature of organized criminal activities that results from modern investigatory methods.

Overall, the Article concludes that the principal uses of RICO have been appropriate and valuable, but that its major benefits can be captured by a series of specific amendments to the federal criminal code, obviating the need for a statute that sweeps under one heading, with a single penalty structure, everything from illegal dice games to business fraud to terrorism and murder. More tentatively, the Article concludes that to the extent that RICO is not fully consistent with our traditional notions of what constitutes a crime, such inconsistency does not automatically discredit the statute, but rather constitutes reason to reexamine those notions. 15 Part IV summarizes these conclusions and makes specific suggestions for statutory reform.

I. THE STRANGE EVOLUTION OF RICO
 
A. The Uses of History

There are several reasons for constructing a detailed account of the history of RICO's legislative development and judicial interpretation. First, the legislative history of the statute has been a source of controversy. Though careful commentators have concluded that Congress intended RICO as a specific response to the problem of criminal infiltration of legitimate enterprises, 16 courts, including the Supreme Court of the United States, 17 and at least one highly influential commentator 18 have found in the legislative history much broader purposes and have used their findings to justify sweeping interpretations of the statute. Since the latter view, which has had considerable influence on the development of the law, is wrong, 19 and the commentators who criticize it 20 have presented their conclusions in rather summary form, a careful review of the evidence is necessary to set the record straight.

Second, the story of how RICO came to be what it is has implications  [*665]  for our assessment of the statute. Prior readings of the legislative history have addressed the subject as an aid to interpretation of the statute's proper application in controversial cases. Those controversies have mostly been settled by judicial decision; moreover, legislative amendments in 1984 either specifically or by implication ratified the expansive judicial interpretations, whether or not those decisions accurately reflected the original legislative intent.

But an accurate reading of the legislative history, and of the judicial reaction to that history, has significance beyond the answers to specific issues of interpretation. The radically contingent nature of the drafting, adoption, and interpretation of RICO tells us something about the way in which important concepts enter our law. The history of RICO, moreover, should make us eager to reassess its utility and fairness. If, as I argue below, the broad consequences of RICO are essentially by-products of a failed legislative effort to address a highly specific problem, it becomes all the more urgent to ask whether those consequences are desirable in their own right. At the same time, an understanding that the most significant current uses of RICO were undertaken by prosecutors and legitimated by courts virtually in the teeth of a narrow legislative purpose should give us a healthy respect for the power of the forces motivating those uses.

Third, an examination of this history is instructive about how both the legislature and the judiciary respond to crime. RICO is only the most recent initiative in a long process of federal action against organized criminal activity. As Professor Bradley has shown, the federal role in prosecuting organized crime has consistently expanded for over 100 years, fueled by the political popularity of anything that can be marketed as part of a crusade against a shadowy and threatening enemy. 21 The history of RICO confirms that when pressure to produce crime legislation is present, drafting choices tend to be made in an expansionist direction, and careful consideration of the precise scope of proposed legislation is rare. In the case of RICO, the vagueness of early proposals to address the infiltration of legitimate business was avoided not by refinement of the original concepts, still less by serious debate about whether the effort was worthwhile, but instead by expanding the concept until it was virtually all-encompassing.

 [*666]  The judiciary is under equally severe pressure to expand the reach of criminal statutes. Even assuming that judges, unlike legislatures, are immune to the effects of public clamor to do something about crime (not necessarily an accurate assumption), the internal pressure on judges to affirm convictions for serious crimes must be enormous. In the area of criminal procedure, the Warren Court developed a series of doctrines that emphasized the importance of defending certain principles even at the cost of reversing an occasional conviction. But substantive criminal law too often has been treated in the federal courts as a matter of "mere" statutory interpretation. Without a firm body of constitutional principles to rely on, the tendency to stretch the scope of criminal statutes to the breaking point to accommodate prosecutions has met little resistance.

Finally, and not least, the story of RICO is a good story, which deserves telling for its own sake. Today, RICO is, among other things, the federal government's principal statutory weapon against organized crime. And yet, the whole thing began with a study commission identifying a problem to which it didn't think a new substantive crime was the solution.
 
B. The President's Crime Commission

The legislative history of RICO begins with the report of the President's Commission on Law Enforcement and Administration of Justice (the Katzenbach Commission) in 1967. 22 Belying the conventional wisdom about presidential commissions and blue ribbon panels, the recommendations of the Katzenbach Commission were highly fruitful in producing significant legislation (if not in controlling crime). Many of the Commission's recommendations for federal legislation were adopted. 23

 [*667]  The Organized Crime Control Act of 1970, 24 of which RICO was a part, was largely based directly on the Commission's recommendations. 25 Its findings about organized crime are therefore important to understanding the history of RICO. 26 The three aspects of the report most particularly relevant to RICO are its understanding of what organized crime is, its emphasis on the danger of organized crime's infiltration of legitimate institutions, and its recommendations for dealing with the problem.

In defining organized crime, the Commission wavered between two ideas. Dominating the report is the Commission's apparent acceptance of the idea of a single nationwide crime syndicate. 27 The opening paragraph of the chapter, citing the Kefauver Committee's report as support, stresses the image of a highly structured, unitary organization: "Organized crime is a society that seeks to operate outside the control of the American people and their governments. It involves thousands of criminals, working within structures as complex as those of any large corporation, subject to laws more rigidly enforced than those of legitimate governments." 28

This perception of organized crime is not invariant in the report, however. In describing organized crime's activities, the Commission on several occasions refers loosely to "[c]riminal groups" 29 or to "[o]rganized criminal groups" 30 in ways that suggest a focus on multiple  [*668]  local organizations, not necessarily unified under a single hierarchy. 31 Indeed, the Commission acknowledged that "[s]ome law enforcement officials define organized crime as those groups engaged in gambling, or narcotics pushing, or loansharking, or with illegal business or labor interests." 32

But the Commission itself rejected this definitional "focus exclusively on the crime instead of on the organization," 33 preferring instead to define "organized crime" as a single invisible empire, analogous to a criminal corporation or cartel, indeed to a private government. The Commission made quite clear that when it referred to "organized crime," it was talking about an entity with particular members, a defined hierarchy, and even an official name:

Today the core of organized crime in the United States consists of 24 groups operating as criminal cartels in large cities across the Nation. Their membership is exclusively Italian, they are in frequent communication with each other, and their smooth functioning is ensured by a national body of overseers. . . . FBI intelligence indicates that the organization as a whole has changed its name from the Mafia to La Cosa Nostra. 34

While the Commission's picture of a single enemy monolith is perhaps overdrawn, 35 the existence and influence of the traditional Mafia  [*669]  was hardly a fantasy. But the definitional issue lurking in the report is important. As we will see, this tension between the idea of a single Mafia and that of multifarious local syndicates as the target of "organized crime" control would surface again in the drafting and interpretation of the RICO statute. 36

The second aspect of the Commission's report that is relevant to the development of RICO is its discussion of organized crime's activities. Part of the subject can be dealt with briefly, for the litany of crimes is familiar: gambling ("the greatest source of revenue for organized crime"), loansharking, narcotics (at the importation and largest wholesale levels), and, to a "small and declining" extent, prostitution and bootlegging. 37 But the Commission gives equal prominence to another aspect of organized crime, less familiar from the days of Elliot Ness: the infiltration of legitimate business.

Once again, this theme is apparent at the very outset of the chapter. Its second paragraph summarizes the later discussion:

The core of organized crime activity is the supplying of illegal goods and services -- gambling, loan sharking, narcotics, and other forms of vice -- to countless numbers of citizen customers. But organized crime is also extensively and deeply involved in legitimate business and in labor unions. Here it employs illegitimate methods -- monopolization, terrorism, extortion, tax evasion -- to drive out of control lawful ownership and leadership and to exact illegal profits from the public. 38

The Commission's fuller discussion of the problem of organized crime's involvement in legitimate business and labor treats issues that would later become significant to the RICO statute. The Commission gave special prominence to this problem by giving it essentially the same space and weight in its report as the more traditional problem of the specifically criminal activities of organized crime. This provided the impetus for the legislative proposals that would evolve into RICO. 39  [*670]  The Commission's discussion of the harm to the public of such infiltration is important to understanding the rationale for prohibiting the infiltration: "Criminal cartels can undermine free competition" through unfair tactics like price cutting financed by tax evasion and cash reserves from illegal business, labor corruption, and violent coercion of suppliers and customers. Moreover, acquisition of legitimate enterprises gives organized criminals the opportunity to engage in new types of ("white collar") crime, such as bankruptcy fraud. 40 Finally, the Commission's analysis of how organized crime acquires legitimate business interests would be critical in constituting the specific prohibitions of RICO. 41

The third aspect of the Commission's report that bears on the development of RICO is its recommendations. Particularly in light of the fact that the Commission's recommendations with respect to organized crime formed the core of the act of which RICO is a part, 42 it is noteworthy that RICO itself did not flow directly from a Commission recommendation.

The Commission's recommendations were generally concerned with providing new investigative tools for law enforcement, rather than with reform of the substantive criminal law. This emphasis is reflected in a major study prepared for the Commission by G. Robert Blakey, a scholar and law enforcement expert later to become the draftsman and a principal exponent of RICO. 43 Professor Blakey explicitly concluded that "[e]xisting substantive criminal theory is adequate to deal with organized criminal activity." 44 This was so because prosecutors already had at their disposal a powerful and appropriate tool in statutes penalizing  [*671]  conspiracy, and "there is no question that existing conspiracy theory is equal to the challenge of organized crime." 45 The difficulty, rather, was in the inadequacy of investigative devices. 46 Professor Blakey's analysis appears to have persuaded the Commission; its legislative recommendations followed his conclusions in most respects. 47

Conspicuous by its absence from the Commission's recommendations is anything like RICO. The Commission proposed neither legislation criminalizing the involvement in organized criminal activity as such, nor a statute outlawing organized crime penetration of legitimate business or labor enterprises. Indeed, the Commission advocated the creation of no new crimes at all. 48

With respect to the particular issue of organized criminal infiltration into legitimate business, which the Commission did so much to publicize as a problem area, the Commission's recommendations were notably cautious. In keeping with its conclusion that existing substantive criminal law was sufficient to deal with organized crime's activities, the Commission recommended no innovations in the penal code.  [*672]  Rather, it saw the infiltration problem as one that could be dealt with most effectively through enforcement of existing civil and regulatory machinery against the illegal tactics of organized criminals in operating legitimate businesses. 49 At least in formulating its recommendations, the Commission appears to have understood the principal danger of organized criminal involvement in legitimate enterprises to be that racketeers would be more likely than other businessmen to engage in unethical or illegal business practices. Strict enforcement of regulations prohibiting such practices, coupled with intensive investigative efforts to uncover them in businesses believed to be operated by organized criminals, were recommended as the tools best suited to countering the problem. 50

In summary, the report of the Katzenbach Commission is significant in the legislative history of the Organized Crime Control Act of 1970, because so many of the provisions of the act find their origins in recommendations of that body and, in particular, in the analysis performed by its task force on organized crime. Three aspects of the Commission's response to organized crime are particularly notable. First, despite occasional recognition of the diffuse nature of "organized criminal groups," the Commission clearly conceived of organized crime as a single entity and directed its primary attention toward a single target: the Italian syndicate it believed controlled organized crime throughout the United States. Second, the Commission saw as a prime aspect of the threat posed by this syndicate its increasing tendency to involve itself in legitimate business and union activities. Finally, while the Commission's conception of the menace of organized crime is significant in understanding the thinking of those who drafted the RICO statute, the  [*673]  Commission itself did not recommend enactment of anything resembling RICO.
 
C. The Congressional Response

Perhaps encouraged by the impending 1968 election season, in which public perceptions of increased crime and civil disorder would play a significant role, members of Congress were quick to introduce a variety of anticrime bills, including many that were specifically responsive to the Commission's recommendations. Included in the flurry of legislative activity were two bills introduced by Senator Roman Hruska that are generally considered ancestors of RICO. 51 One of these bills, S. 2048, would have amended the Sherman Antitrust Act to prohibit the investment or use in one line of business of intentionally unreported income from another line of business. 52 The second bill, S. 2049, created new civil and criminal penalties for the investment of income derived from various specified criminal activities in a business affecting interstate commerce. 53

No action was taken on the bills. 54 No doubt reflecting the priorities of the election campaign, Congress deferred action on most of the organized crime aspects of the pending bills and Commission recommendations, turning first to actions that could be packaged under the election-year title of the "Omnibus Crime Control and Safe Streets Act of 1968." 55 Although neither of the Hruska bills became law, several features of his suggestions are relevant to the evolution of RICO.

The first noteworthy aspect of Senator Hruska's proposals is their purpose. The Senator introduced his package of proposals with a lengthy speech concerning the "cancerous growth of organized crime in this country." 56 Like the Katzenbach Commission, Senator Hruska adopted the view that organized crime constituted "a tightly knit and strictly disciplined criminal cartel," known as La Cosa Nostra. 57 Even  [*674]  more than the Commission, however, Senator Hruska devoted his principal attention not to the primary illegal activities of the syndicate, but to its penetration into legitimate business. 58 Thus, RICO's earliest ancestor was explicitly tied to the purpose of combatting organized crime infiltration into legitimate fields of business.

It is also worth noting, however, that even this early draft of what would one day grow to be RICO went well beyond this purpose. Nothing in either bill purported to define organized crime, or to limit the bills' scope to actions of the criminal cartel whose activities had called it forth. 59 Thus, S. 2048 applied to anyone who invested deliberately unreported income, regardless of the source of the income or the criminal status of the investor. The language of the bill covered a restaurateur who skimmed cash from his restaurant to invest in a hotel venture as much as the racketeer who used his narcotics profits for the same purpose, even though Senator Hruska was explicit that the "evil to be curbed is the unfair competitive advantage inherent in the large amount of illicit income available to organized crime." 60 Similarly, S. 2049, the more direct ancestor of RICO, applied, despite Senator Hruska's primary concern for the monolithic "Mafia," to anyone who invested income derived from designated criminal activities in a legitimate business, whether or not the investor was a member or affiliate of La Cosa Nostra. 61 The only purported connection between the bill and the Mafia was that the specified crimes were "especially those criminal activities engaged in by members of organized crime families" 62 -- although clearly by other, disorganized criminals as well. 63

 [*675]  Senator Hruska's proposals went beyond the Katzenbach Commission's recommendations in proposing a direct legislative attack on the infiltration problem identified by the Commission, while the Commission itself believed that existing criminal, civil, and regulatory regimes were sufficient to combat the criminal consequences of infiltration. 64 Moreover, Senator Hruska's bills went beyond the specific problem he identified: the bills would have penalized intrusion into legitimate business of criminal capital other than that identified with "organized crime" as he himself understood that term, and indeed, extended even to investments of what would not generally be regarded as criminal proceeds at all. But nothing in the Hruska package contemplated further substantive criminal law reforms to increase the penalties or scope of laws prohibiting either the pre-infiltration racketeering acts that generated the income used to penetrate the legitimate business or the post-infiltration criminal activities in which the racketeer was expected to involve the infiltrated entity. 65

In any event, the legislative war on organized crime had to wait for the next Congress. Early in that Congress, Senator John L. McClellan introduced a major bill containing most of the organized crime recommendations of the Katzenbach Commission. 66 Senator McClellan supported the bill with a lengthy speech about the evils of organized crime and the legislative steps needed to combat them. 67 The speech, like the bill it supported, was taken largely from themes sounded by the Task Force Report on Organized Crime. Like the Commission, Senator McClellan saw the unitary structure of La Cosa Nostra as "epitomiz[ing], if it does not exhaust, the concept of organized crime." 68 Like the Commission, he gave prominent place to the evils of organized crime's infiltration of legitimate businesses and labor organizations, and its corruption of government activities. 69 And like the Commission, Senator McClellan took the view that of all the factors inhibiting the law enforcement response to organized crime, the single most important was the procedural and evidentiary difficulty of making cases. 70 Accordingly,  [*676]  his anticrime package included a variety of proposals in the areas of evidence and criminal procedure, most derived from the Commission's recommendations, but suggested no need for changes in the substantive law of crimes. His bill contained no counterpart to Senator Hruska's Ur-RICO. 71

But Senator Hruska had not given up. He offered a new bill, combining his previous proposals into a coordinated whole, detached from the antitrust laws. 72 This bill, identified as the "Criminal Activities Profits Act," would have made it a crime to invest any income derived from any of several enumerated federal offenses, or any intentionally unreported income, in any business enterprise affecting interstate commerce. 73

In introducing the bill, Senator Hruska made plain that it was "aimed specifically at racketeer infiltration of legitimate business." 74 Senator Hruska placed his greatest emphasis on the harm that organized criminals could do once entrenched in ordinary businesses. Racketeers, he feared, would use illegitimate tactics to secure monopoly power, with attendant anticompetitive damage to the economy. In addition, racketeer-run businesses would be expected both to utilize "all the techniques of violence and intimidation" for which racketeers are renowned and to turn their criminal talents to the white collar business crimes of embezzlement and consumer fraud. 75 Unlike the Katzenbach Commission or Senator McClellan, however, Senator Hruska would not have dealt with these ills by giving law enforcement agencies additional investigatory tools to uncover and prove crimes committed by racketeers, be they committed before the infiltration that produced the capital or after it through and for the benefit of the penetrated business. Instead, like its immediate predecessors, the bill directly prohibited the entry of criminal money into the legitimate economy. 76

Following hearings on the various anti-organized crime proposals, Senators Hruska and McClellan joined forces to introduce a more radical revision of the Hruska bill, which was now restyled the "Corrupt Organizations Act of 1969." 77 While the bill was amended in numerous  [*677]  relatively minor respects as it passed through the Senate and House Judiciary Committees, 78 in its essentials the Corrupt Organizations Act was all but identical to the final version of S. 1861 that was enacted into law as title IX of the Organized Crime Control Act of 1970.

A proper understanding of the goals of S. 1861, therefore, is particularly important in understanding the goals of RICO. Fortunately, upon introducing the bill, Senator McClellan made its purposes emphatically clear:

The problem, simply stated, is that organized crime is increasingly taking over organizations in our country, presenting an intolerable increase in deterioration of our Nation's standards. Efforts to dislodge them so far have been of little avail. To aid in the pressing need to remove organized crime from legitimate organizations in our country, I have thus formulated this bill. . . . This bill is designed to attack the infiltration of legitimate business repeatedly outlined by investigations of various congressional committees and the President's Crime Commission. 79
 
The bill proposed to remove the "cancer" of organized crime penetration from the economy "by direct attack, by forcible removal and prevention of return." 80 This "most direct route to accomplish" the goal of "remov[ing] organized crime influences from legitimate organizations" was the exclusion of the racketeer from the infiltrated enterprise: "If an organization is acquired or run by the proscribed method, then the persons involved are removed from the organization." 81 Again citing the antitrust precedent, Senator McClellan went on to note that the goal of these measures was the

protection of the public against parties engaging in certain types of businesses after they have shown that they are likely to run the organization in a manner detrimental to the public interest. In [this] spirit, . . . this provision . . . is based upon [the] judgment that parties who conduct organizations affecting interstate commerce through a pattern of criminal activity are acting contrary to the public interest. To protect the public  [*678]  they must be prohibited from continuing to engage in this type of business in any capacity. 82

This emphasis on infiltration of legitimate organizations remained as the bill made its way through the legislative process. Both the Senate and House committee reports accompanying the final versions of the Organized Crime Control Act state that the purpose of RICO is "the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce." 83

The purpose of the revised bill was thus exactly the same as that of Senator Hruska's 1967 proposals. It is worth emphasizing this continuity of intention in such detail because it has not always been recognized by proponents of a broad interpretation of RICO. For example, Blakey and Gettings assert that "[w]hile RICO had its origins in previous attempts to curtail organized crime infiltration into legitimate business, S. 1861, when redrafted and introduced, had a broader purpose; it was directed at all forms of 'enterprise criminality.' It represented the rest of the Crime Commission's integrated package." 84 This assertion of a broadening of purpose is supported by no reference to any statement of the bill's purpose by any of its supporters. As the above detailed discussion of the origins of RICO shows, it could not be, since both parts of the quoted assertion are simply wrong.

First, no public description of the purpose of S. 1861 contained any indication whatever that the previous narrow understanding of the goals of the Hruska bills had been altered. 85 To the contrary, Senator McClellan repeatedly emphasized the same purposes for S. 1861 as Senator Hruska had set out for its precursors: a "direct attack" on the penetration of legitimate organizations by organized crime. 86 Second, as we have seen, the Katzenbach Commission's "integrated package" of proposals to strengthen law enforcement against organized crime included no recommendation for any substantive criminal law changes, either directed narrowly against infiltration of legitimate business or broadly against "enterprise criminality." 87

 [*679]  Elsewhere, Blakey and Gettings draw support for their view that the purpose of the Corrupt Organizations Act differed from that of its predecessors from a variety of sources. First, they argue that because title IX as eventually enacted was called "Racketeer Influenced (legitimate) and Corrupt (illegitimate) Organizations," the title of the Act reflects an expansion to include all forms of "enterprise" criminality. 88 The claim is, to say the least, strained. As Blakey and Gettings themselves acknowledge, the word "corrupt" is "ambiguous: a 'corrupt organization' could be . . . either the mob itself or a union taken over by it." 89 Their claim that the title of the Act was "therefore" changed from "Corrupt Organizations" to "Racketeer Influenced and Corrupt Organizations" for the purpose of "clarifying the ambiguity and drawing the crucial distinction explicitly" 90 is unpersuasive. 91 The claim that the change in title reflects a change in purpose is decisively rebutted by the fact that the original "Corrupt Organizations Act" uses the two terms interchangeably. 92

Second, Blakey and Gettings note that the Organized Crime Control Act itself contains a broad statement of its purpose "'to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful actions of those engaged in organized crime.'" 93 While the particular language of this statement can perhaps be written off as describing the entire Act, and not merely the RICO provisions of title IX, 94 Blakey and Gettings correctly point out that S. 1861 itself contained a similar statement of purpose 95 to "eradicate the baneful influence of organized crime in the United States" and "to arrest and reverse the growth of organized crime in the United States,  [*680]  its infiltration of legitimate organizations, and its interference with interstate and foreign commerce." 96

This argument too is unpersuasive, however. Obviously, the purpose of all of the provisions then under consideration was to "eradicate" organized crime; this hardly suggests that each particular aspect of the package should be read to penalize all actions committed by anyone associated with "organized crime" in its broadest definition. As Senator McClellan pointed out in introducing S. 1861, RICO was not intended to accomplish the "eradication" of organized crime by itself. 97

Blakey and Gettings are correct that "[n]owhere in the legislative history does it say that the legislative history was exhaustive or that this purpose [to deal with the infiltration of legitimate business] was the only purpose." 98 But granting the absence of any such improbable disclaimer, it remains the case that nowhere in the legislative history is there even a glimmer of an indication that RICO or any of its predecessors was intended to impose additional criminal sanctions on racketeering acts that did not involve infiltration into legitimate business.

Blakey and Gettings are correct in one respect. If it cannot be documented that any member of Congress understood the bill in this way, the actual language of the Corrupt Organizations Act, and of RICO, its enacted successor, does indeed go far beyond its announced purpose. An examination of the structure of the statute will show that while the fundamental prohibitions of RICO still clearly reflect the purposes motivating Senators McClellan and Hruska in introducing it, the logic of expansion pushed the actual language of the statute much further.
 
D. The Structure of the Statute

As reintroduced by Senator McClellan, and as currently codified in title 18 of the United States Code, RICO is a statute of daunting complexity, comprising eight separate lengthy sections. But the length and complexity of the statute helps to mask a certain simplicity in the structure of the criminal prohibitions imposed. 99

The core of the statute, 18 U.S.C. § 1962, creates four new crimes. Under section 1962(a), it is a crime for any person to "use or invest" any income he has derived "from a pattern of racketeering activity or through collection of an unlawful debt" to establish, operate, or acquire  [*681]  an interest in "any enterprise" engaged in or affecting interstate commerce. 100 Section 1962(b) prohibits acquiring or maintaining an interest in, or control of, any such enterprise "through a pattern of racketeering activity or through collection of an unlawful debt." Subsection (c) of section 1962 makes it a crime for any person "employed by or associated with any enterprise" in or affecting commerce "to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." Finally, section 1962(d) prohibits conspiracies to violate the other three prohibitions. 101

This structure is neatly designed to deal with the congressional concern with organized criminal infiltration of legitimate business. Section 1962(a) prohibits acquisition of an interest in a legitimate business by the investment of "dirty money" derived from racketeering; section 1962(b) prohibits acquisition of such an interest by means of racketeering acts (as, for example, by extortion or loan-sharking); and section 1962(c) prohibits the operation of a legitimate business (however acquired) by means of unlawful racketeering behavior.

Indeed, the structure of these prohibitions corresponds perfectly to the analysis of organized criminal infiltration of legitimate enterprises presented by Senator McClellan in his speech on organized crime originally introducing S. 30. Thus, Senator McClellan commented that:

Control of business concerns has been acquired by the subrosa investment of profits acquired from illegal ventures [prohibited by section 1962(a)], accepting business interests in payment of gambling or loan shark debts [prohibited by section 1962(b)'s "unlawful debt" language, as defined in section 1961(6)], but, most often, by using various forms of extortion [prohibited by section 1962(b)'s "pattern of racketeering" language, which would outlaw acquiring a business through, inter alia, extortion, under the definition in sections 1961(1)(A) and (B)]. 102
 
After takeover, the Senator went on, the organized criminal would secure further illicit profits by such means as arson frauds, bankruptcy frauds, and restraints on trade enforced through "techniques of violence  [*682]  and intimidation." 103 Conducting the affairs of an enterprise through such a pattern of racketeering activity is prohibited by section 1962(c).

Certain expansions of the coverage of RICO beyond the "Criminal Activities Profits Act" earlier proposed by Senator Hruska should be obvious. First, although the prohibition against investment of unreported income as such has been dropped, the prohibition of direct infiltration of legitimate business has been considerably expanded. Penetration of a business through extortion and loansharking, as well as through investment of criminal profits, was prohibited, thus striking at all means of infiltration earlier identified by the Katzenbach Commission and Senator McClellan. 104

Second, in accord with Justice Department criticisms of the bill, 105 section 1962(c) was added, thus providing the means to prosecute not only the act of infiltration, but also the conduct of the affairs of the enterprise through racketeering that could be expected to follow such penetration. While still serving the goal of attacking organized crime's involvement in legitimate business, section 1962(c) takes a different approach to the problem, prohibiting not the act of infiltration itself, but the criminal activities committed by the infiltrated racketeers.

Third, unlike Senator Hruska's bills, which were limited to investment of dirty money in "business enterprises," 106 the RICO bill broadly defined "enterprise" to include "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 107 This expansion clearly broadened the range of activities to be protected against infiltration beyond businesses to include labor unions and government bodies as well, both of which had been identified by Senator McClellan as victims of organized crime penetration "[c]losely paralleling its takeover of legitimate businesses." 108

Finally, S. 1861 substantially increased the criminal penalties applicable to violators. 109

 [*683]  In the process of broadening its assault on infiltration, the drafters of the Corrupt Organizations Act also retained and expanded those aspects of the earlier bills that swept beyond that particular problem. RICO continued to make no attempt to define organized crime, either as the monolithic Italian-American conspiracy most often discussed by the Katzenbach Commission and Senators McClellan and Hruska or in the more general sense of structured criminal syndicates or organizations of any kind. Instead, the new bill, like the old, implicitly defined organized crime by what it did rather than by what it was, by listing a variety of crimes to which the prohibitions of the act applied. 110 Like earlier federal statutes enacted out of concern about organized crime, 111 RICO thus makes no attempt to define its target and limit its applicability to organized crime.

Broadening the bill's prohibitions beyond organized crime, however defined, expanded its coverage beyond the "infiltration" problem the bill was supposed to address. The broadening effect of this decision, moreover, was multiplied by other innovations in the newly expanded bill. Since the Hruska proposals dealt only with the investment of profits from criminal activities, defining species of crimes instead of species of criminals as the source of prohibited investments constituted a limited and reasonable expansion of coverage: keeping criminals out of legitimate businesses is desirable whether the infiltrators are officially "made" members of the Mafia, or more localized gamblers or drug dealers. But the new section 1962(c) prohibited as well the conduct of a business through the specified criminal means. As this prohibition applied to anyone who "participate[s], directly or indirectly, in the conduct of [an] enterprise's affairs," and not merely to infiltrating gangsters, the dramatic criminal penalties now made available covered ordinary businessmen gone astray as well as career criminals. 112

Even this expansion would have been modest had the list of activities selected as "typical of organized crime" remained limited to such blue-collar offenses as drug dealing, gambling, and crimes of violence. But the Hruska bill already had included bankruptcy fraud and bribery  [*684]  of federal officials, 113 and Senator McClellan's original Corrupt Organizations Act had added additional white-collar offenses such as embezzlement from union, welfare and pension funds, and interstate transportation of property stolen or taken by fraud. 114 Most critically, the Senate Committee added to the final version of RICO violations of federal laws involving mail and wire fraud, and securities fraud. 115 Without question, these amendments included offenses that infiltrating racketeers would be likely to commit, 116 but the effect of the changes was that any corporate executive who conducted the affairs of his business "through a pattern of" fraud (i.e., by at least two fraudulent acts related in some unexplained fashion within ten years 117 ) would violate RICO. In short, the combination of expansions of coverage had the effect -- apparently unintended -- of drastically increasing the potential penalties facing many "white collar" criminals.

An even more dramatic expansion of the potential coverage of RICO appears when the language of the statute is given an only slightly more creative reading. The logic of the reading is smooth and simple: (1) it is a crime for anyone associated with any "enterprise" to conduct the affairs of that enterprise through a "pattern of racketeering activity"; (2) an "enterprise" includes "any . . . group of individuals associated in fact," a description that manifestly describes an organized crime syndicate; (3) a "pattern of racketeering activity" includes the commission of (almost any) two crimes; (4) therefore, the statute criminalizes not merely, say, the operation of a Mafia-infiltrated carting company through a pattern of extortion, but also the operation of a Mafia "family" itself, for what is a criminal syndicate but a "group of individuals associated in fact" who conduct their affairs "through a pattern of racketeering"? By this logic, RICO could be read as imposing drastic sanctions not only on the infiltration of legitimate business by organized criminals and on the operation of legitimate business in a criminal manner by anyone at all, but also on the operation of organized crime itself. And indeed, since the statute's working definition of organized crime is found only in the expansive definitions of "enterprise" and "pattern of racketeering," the statute so read would apply not only to La Cosa Nostra, but to any group of individuals banded together into an "associat[ion] in fact" to commit any of the wide range of crimes defined  [*685]  by section 1961(1) as "typical of organized crime." 118
 
E. The Logic of Expansion

What accounts for the continual expansion of the language of RICO to the point that the statute as enacted is protean in form and pervasive in coverage? The basic structure of the statute and the pronouncements of its supporters all support the view that the statute was initially designed to strike a blow at organized crime by criminalizing the infiltration of legitimate business by members of a nationwide criminal syndicate, and that its principal supporters in Congress never understood the statute to encompass other aspects of the organized crime problem. Nevertheless, the statute that emerged clearly goes beyond the prohibition of the act of infiltration itself and equally clearly includes more than the actions of a monolithic "Cosa Nostra." Moreover, the statute can be read without serious distortion of its language to escalate dramatically the sanctions available against business fraud and against organized criminal activity in the loosest possible sense, neither of which have any necessary relation to the infiltration problem that was all that overtly concerned the Congress. What happened?

The expansion of the coverage of the statute was driven by fundamental definitional and criminological difficulties with the project on which Congress had embarked. The original insight behind RICO -- Senator Hruska's notion that it was desirable to mount a "direct attack" against the infiltration of legitimate business by organized crime -- was at least plagued by definitional problems and at worst totally misguided. The effort to solve the inherent problems of the approach and salvage a useful law enforcement tool was the engine that drove the expansionist draftsmanship of RICO.

1. Defining Organized Crime. -- The first definitional hurdle was faced, and solved in an expansionist direction, at the very outset. If the goal is to prohibit the penetration of legitimate business by organized crime, we must know what we mean by organized crime. Defining organized crime, however, turns out to be a slippery business, from a sociological as well as from a legal point of view. 119 The first reaction of the ordinary citizen is to conjure up visions of "the Mafia" or "La Cosa Nostra" -- a formalized, hierarchical secret society, a corporation of crime -- whose central members are all but invariably Italian, or more particularly Sicilian. As we have seen, this popular image is not confined to the person in the street; the same understanding of organized crime  [*686]  pervaded the thinking of the President's Crime Commission and the congressional sponsors of the precursors of RICO.

But this understanding of organized crime would not do as a juridical concept in the definition of a crime. Putting aside possible constitutional problems under the bill of attainder clause, the idea that criminal prohibitions should apply generally is deeply imbedded in our traditions. Congress obviously would recoil at a law criminalizing certain actions when performed by members of a specific, named organization that could be performed without penalty by other citizens -- even if that organization could be satisfactorily defined and even putting aside the further constitutional and political dubiousness of including ethnic classifications in the definition. 120

In any event, a definition focused on a single entity, even if one could be devised, would not be desirable. The Mafia may not be a mythical entity, but it is hardly coextensive with syndicate crime in the United States. If professional criminal elements, organized into structured, businesslike units characterized by division of labor and hierarchical organization, are moving into legitimate businesses around the country where they can be expected to continue to utilize unlawful tactics in pursuit of profit, the appropriate law enforcement response does not turn on whether a particular syndicate is affiliated with the largest nationwide organization of its kind. Granted that the devisers of RICO took some inspiration from the antitrust laws, the goal of Congress was obviously not to further competition in the criminal sector of the economy by breaking up Crime, Inc., into smaller, more efficient units.

But what of a definition of "organized crime" that tries to capture the general features of criminal syndicates that make them "organized"? 121 This is a more promising approach, though it too presents problems of definition and proof. Exactly what elements of structure,  [*687]  organization, or activity differentiate a "syndicate" from a mere "gang"? How loose an association of criminals should count? How large or small must it be? Many criminals have accomplices in particular crimes, and, like the business or social associates of individuals in legitimate pursuits, those accomplices are likely to be drawn from a limited and recurring circle of acquaintances. Do these loose affinity groups constitute "organized crime"? When we say "organized crime," we clearly mean the criminal equivalents of General Motors and the University of Chicago Faculty of Law, but do we also mean the underworld counterparts of the Vienna Circle and the Critical Legal Studies Movement? And if not, how do we differentiate more from less highly organized groups in a zone of activity not given to formalized relationships?

The definitional problems here, though real, may not be insoluble. 122 But once again, one may seriously question whether there is any point to solving them, at least if the goal is to criminalize infiltration into legitimate business. Does it really make sense to hold that a hit man or a narcotics dealer who uses his ill-gotten gains to acquire a garbage collection business, or uses strong-arm tactics to take over such a business, is more of a menace if he is associated with a relatively formal criminal organization than if he were simply a somewhat disorganized free lance? Perhaps an argument is available that a member of a functioning criminal organization is more likely to continue in his dishonest ways once ensconced in a legitimate trade, while a relatively casual criminal might use infiltration as a painless route to a straight occupation. Still, Congress can be forgiven for concluding that the distinction was not worth making in a prohibitory statute.

Rather than attempting to define even a broad concept of organized crime in terms of its structural characteristics, Congress' solution, which was reached in the very first of Senator Hruska's proposed bills 123 and never departed from, was to define the problem functionally. Organized crime is as organized crime does. In other words, anyone who performed the criminal acts considered typical of organized  [*688]  crime would be treated the same as the Mafia capo. Of course, the list of crimes typical of organized crime rapidly became a long and diverse list, for is it not a defining characteristic of organized crime that it would do just about anything for a profit? 124

From such puzzling about the concept of organized crime was born the "pattern of racketeering." Any criminal can be a racketeer, regardless of his involvement in a criminal syndicate, if he commits a "pattern of racketeering acts." The logic of defining crimes in general terms, and the difficulty of defining organized crime structurally, led inexorably to the conclusion that anyone who attempts to acquire a foothold in a legitimate business through violence or usury, or by investing the proceeds of criminal activities, should be subject to the same penalties. 125

2. Defining Legitimate Business. -- Similar problems pushed back the frontiers of the area to be protected against "infiltration." Legal concepts like corporations or partnerships were inadequate to the definitional task. Criminals could, and the studies available to Congress showed that they sometimes did, penetrate not only legal entities officially capable of divided ownership, but also unincorporated businesses nominally owned by a sole proprietor, acquiring covert interests in the profits of such businesses through their muscle or capital. Indeed, "business" itself was too narrow a term. What about labor unions, to take only the most obvious example? 126 Or charitable or social organizations? Or trade associations (the prototypical vehicle for the operation of a "racket")? 127 Or even governmental agencies or offices? 128 The definitional construct had to encompass all of these. Here, Congress' answer was the "enterprise" -- a nicely vague and encompassing term that could cover just about anything, and was defined so that it did. 129

Thus, the technical difficulties of defining key concepts in the conduct Congress sought to attack forced the realization that a fairly broad  [*689]  range of conduct not necessarily included in the catch-phrase description of the evil to be prevented by the statute should be brought within its prohibition. But the core conceptual problem of the approach Congress had chosen would not appear until Congress set about defining what it meant by "infiltration."

3. Defining Infiltration. -- Here, too, there was a technical problem, though one that was rather easily solved, again in an expansionist direction. Senator Hruska's original proposals prohibited only the financial penetration of a legitimate business by criminal elements through the investment of the proceeds of criminal conduct. 130 As ultimately enacted, RICO also prohibited acquisition of legitimate businesses through racketeering means such as extortion or loansharking. 131

This expansion, though simple and logical, marks a subtle change in focus. If the financial penetration model had already, in Senator Hruska's formulation, made its peace with a broadened concept of "racketeer" that did not specifically require that the infiltrator be an agent of "organized crime," at least it retained the idea of the infiltrator as a character previously identifiable as a criminal. That is, in order to have acquired tainted funds to invest in an ordinary business, the infiltrator must have already engaged in a pattern of defined criminal conduct. The image was thus maintained of two separate spheres, the legitimate and the criminal, that meet only when an alien being from the underworld breaches the wall between them by "infiltrating" or "penetrating" the world of legitimate activity.

One needs no prior involvement in criminal activity, however, to violate section 1962(b): anyone who acquires an interest in a business through a pattern of violence or usury is ipso facto a racketeer. Thus, one who was not previously part of the criminal sphere becomes a racketeer by the same act by which he infiltrates the straight business world. There is, of course, nothing peculiar about punishing such conduct, but the change highlights the oddity of "infiltration" as a defining concept in a criminal statute: what is offensive about the violation of section 1962(b) is the conduct of extorting a business interest from a victim, not some metaphorical corruption of the business enterprise that comes about by its invasion by a "racketeer."

The change thus reflects a broader problem inherent in the basic idea of a law prohibiting the "infiltration" of legitimate enterprises by criminals. Putting aside for a moment the acquisition of a business interest through direct criminal action, the act of acquisition is morally neutral, or even beneficial -- "black money" is fungible with the ordinary green stuff with respect to its economic function as a source of capital for socially productive businesses. The harm to society is not in the act of infiltration -- the investment of criminal proceeds -- but in the  [*690]  acts of racketeering that precede and follow it. 132 Society is injured by the narcotics and gambling businesses that are the source of criminals' profits, not by the use of those profits to buy a laundry; any harmful result of the latter comes not directly from the investment itself, but from the predicted operation of the laundry by criminal means. 133

Of course, this does not pose a critical problem in criminal law theory. Acts not intrinsically harmful in themselves, when committed with a criminal intent, may be punished as attempts. More to the point, specific acts that threaten future harm may be criminalized without the showing of any intent beyond the intent to commit the "preparatory" act itself, as, for example, with statutes prohibiting possession of weapons. 134

Prohibition of the morally neutral act of investing under circumstances suggesting that the investment may lead to future social harms is thus not conceptually difficult. Such legislation may have its costs: for example, the possibility that legitimate investments might lead criminals to retire from active commission of crimes is foregone. 135 But if Congress concludes, as apparently it did, 136 that criminals entering legitimate businesses corrupt the straight world rather than straightening themselves out, no reason of principle prevents it from prohibiting the act that brings the criminal closer to the accomplishment of his goal, even at the expense of preventing those who would perform the same act for innocent purposes. Section 1962(a) of RICO,  [*691]  in effect, could be construed as a kind of inchoate crime. 137

The expedience of such a course is another question entirely. The whole point of punishing possession of burglar tools is that it is easier to prove than attempted burglary. Such advantages might well be desirable in prosecuting organized crime figures, who are often difficult to convict. But the RICO infiltration offense is not easier to prove than the charges already available. In order to prove a violation of section 1962(a), the prosecutor still has to prove the underlying racketeering acts that constituted the source of the proceeds or the means of acquiring the enterprise. Since these are by definition already crimes, and constitute the principal socially harmful conduct committed by the defendant, RICO has not made it any easier (procedural and remedial considerations aside 138 ) to prove the case; it has eliminated no element necessary to convict on the underlying charges. On the contrary, it has added an additional element: the use of the proceeds from racketeering to invest in a legitimate enterprise. That element is hardly a trivial one. Even if the underlying illegitimate activities could be proved, it may well be extremely difficult, and it usually will be burdensome, to prove that the funds used to acquire the interest were indeed drawn from the profits of the defendant's racketeering activities, rather than from other sources. 139

 [*692]  Cases brought under section 1962(b) do not present the same problem. Where the government can prove that an interest in a legitimate enterprise is the fruit of an extortion or the collection of an illegal debt, casting the offense as a violation of section 1962(b) imposes little or no additional burden on the prosecution. Indeed, in most cases the shape of the prosecution's case will not be affected at all. The prosecution will need to show that the victim parted with some property in order to prove most predicate crimes of this category. 140 Even where an equally severe offense not requiring such proof is available, 141 the prosecutor for tactical reasons will generally prefer to prove the loss to the victim, if such a loss actually occurred. It thus imposes no additional burden on the prosecutor, where the proceeds of the crime consist of an interest in an enterprise rather than mere cash, to punish separately the infiltration aspect of the crime.

On the other hand, one may seriously question how helpful this additional weapon is to prosecutors. Acquiring a business through the commission of a crime is, tautologically, a crime already. And those crimes that will most commonly be the means of infiltration are already provided with ample penalties. 142 If section 1962(a) seems too cumbersome a tool to be useful to law enforcement, section 1962(b) appears merely redundant.

4. Defining Pattern of Racketeering. -- Prohibiting acts of infiltration per se thus proves to add few useful legal weapons against it. Section 1962(c) represents a possible response to the futility of subsections (a) and (b). If the principal harm to be feared from infiltration is the consequent likelihood that the business will be run in a criminal fashion, and especially if it is difficult to see exactly how to prohibit infiltration in a way that makes it easier for law enforcement to stop it, why not go to the heart of the matter and make it a separate offense, more serious than the underlying crimes themselves, to operate an enterprise in the way racketeers can be expected to: through a pattern of criminal  [*693]  acts? 143

This step requires no revolution in criminal law theory: sentence-enhancing statutes are common, as are statutes that, in form or substance, create higher degrees of offenses where additional social harms are present. But what precisely is the aggravating circumstance in section 1962(c)? In the case of infiltration, the additional aggravating factor might be thought to be the presence of the racketeer. An ordinary business fraud is bad enough, but a fraud committed by an organized criminal who acquired the business in the first place only so as to commit such frauds is arguably something worse. But there are definitional and conceptual difficulties with this approach. The structure of RICO reflects a decision that it is too difficult and constitutionally problematic to define racketeers other than by their acts. Moreover, section 1962(b) assumes that prior racketeering acts are not necessarily required: if under section 1962(b) one can become a racketeer by acting like one in the acquisition of a business, why cannot one become a racketeer by acting like one in the operation of a business?

Finally, it is by no means clear that, in the context of a "legitimate" enterprise, "being a racketeer" is really an aggravating factor. If the principal danger of racketeers in business is that they will create a social harm by conducting the business in a distinctly criminal way, it is difficult to understand why anyone who conducts a business in such a socially harmful way should not be equally accountable. 144 And so the operation of a legitimate enterprise by criminal means becomes a logical target of RICO, whether or not the perpetrators are infiltrating racketeers.

But if a prior record of racketeering is not the distinguishing aggravating factor in section 1962(c), only the "corruption" of an enterprise is left to distinguish the violation of that statute, with its severe penalties, from the mere commission of predicate offenses. In the abstract, putting the resources of a corporation or a union behind a criminal act, or distorting a legitimate economic institution, may plausibly be thought to aggravate the intrinsic harm or wrongfulness of a particular criminal act. In practical operation, however, it is difficult to isolate this factor. Many RICO predicate crimes can only be committed in the context of an economic enterprise: the claim that a securities fraud or  [*694]  Taft-Hartley violation is worse if it implicates the resources of an economic enterprise is meaningless. Nor is it easy to define the "corruption" of a legitimate organization. News media accounts frequently describe a RICO count as charging that "the defendants in effect converted the [named legitimate enterprise] into a criminal enterprise," but the sense of pervasive corruption this implies is only rarely accurate and is certainly not required by a statute that permits a "pattern of racketeering" to be found in as few as two predicate criminal acts regardless of the size of the enterprise. The addition of section 1962(c) to the statute, then, expands the coverage of the statute to the point that the infiltration idea, and with it any specific harm that can be identified with crime in the context of a legitimate enterprise, totally evaporates.

The logic of expansion has now become fairly clear: the intrinsic illogic of attempting to punish infiltration itself, combined with the difficulties of defining "organized crime," inevitably resulted in a statute that punishes anyone who acts in the way that organized criminals are thought to act when they have infiltrated the legitimate world -- by corrupting legitimate institutions to criminal ends. And since corruption of an enterprise from within is no easier to define than infiltration from without, the statute is left punishing anyone who commits more than one crime within the context of a legitimate enterprise, with only the shakiest justification for treating such crime as distinct from or more serious than crime that occurs outside such an enterprise.

Combined with the expansive definition of "enterprise" already discussed, however, the statute can be read to break down even this distinction, by providing enhanced punishment for anyone who acts like an organized criminal -- by committing crimes. For, as already noted, an "enterprise" does not need to be a legitimate institution at all. At least if the statutory definition is taken literally, the RICO statute is violated if a "group of individuals associated in fact" -- say, the James gang -- runs its enterprise not by criminal means that distort its legitimate ends, but by the very crimes that are the object of the association in the first place. As we are about to see, the courts have interpreted RICO very literally indeed.
 
F. RICO in the Courts: The Expansion Continues

The goal of curbing organized crime's penetration into legitimate sectors of society thus resulted, through the combination of a congressional choice to attack the problem by direct prohibition and the difficulties of drafting a statute that would effectively make such an attack, in a very broadly drafted bill that was capable of being applied to a remarkable range of conduct. But the breadth of potential coverage would not necessarily be determinative. The new law would have to be applied by prosecutors and judges. How they responded to the bill's language would determine its ultimate scope. While they initially responded  [*695]  cautiously, within a few years it would become clear that RICO would have all the reach that its language suggested.

1. Early Cases. -- Although RICO became law on October 15, 1970, the first reported judicial opinion dealing with the statute did not appear until three years later. 145 The earliest judicial encounters with RICO did not involve elaborate discussions of the statute's meaning. Apparently, RICO's very novelty encouraged prosecutors not to push at the statute's outer limits and led defense attorneys to attack the statute in broad terms rather than to focus on the interpretation of its specific language. Thus, many early RICO opinions are concerned with broad-scale attacks on the constitutionality of the statute in cases that do not approach the frontiers of the statutory language. 146

One interesting aspect of these cases is that in rejecting the claim that the prohibitions of RICO are too nebulous to pass constitutional review, judges tended to hint at the kind of literal reading of the statute that would lead to the broadest possible applications. Faced with the claim that RICO was unconstitutional because it made it a crime merely to be "reputed to be an organized crime member," 147 or because it failed to "set forth the degree and intensity of the relationship required between the racketeering activity and the usual operation of the enterprise," 148 judges emphasized that the behavior prohibited by the statute was clear enough because the predicate offenses were clearly defined criminal acts, and, therefore, the conduct to be avoided was obvious to all. 149 Similarly, the failure of the statute to specify the relationship required between the racketeering activity and the enterprise was not a defect because Congress intended the statute to apply whenever there was any relationship whatever between the racketeering activity and the operation of the legitimate enterprise. 150 These judicial  [*696]  reactions reflect the same tension that underlay the expansive draftsmanship undertaken by the Congress: to avoid the vagueness and imprecision of the concepts of "organized crime" and "infiltration," the courts resorted to a literal reading of the broader but less indefinite language chosen by Congress. If anyone who committed a "pattern of racketeering acts" while participating in any fashion in the operation of any enterprise violated the statute, the statute might be extremely broad, but there would be no definitional ambiguity about the meaning of its terms. 151

Just as these early cases show judges reacting cautiously to RICO by refusing to indulge in speculative limiting interpretation or aggressive constitutional review, they equally show prosecutors proceeding cautiously by using RICO only in cases that bore at least some plausible connection to the legislative rationale for the law. The earliest RICO cases 152 involve classic "racketeering" schemes that directly preyed upon legitimate economic activity, 153 or entry into a legitimate business by criminal means. 154 Notably, however, in none of these cases did the courts explicitly identify the defendants as members of "organized  [*697]  crime." 155 The statute as finally adopted had made it unnecessary to attempt any such classification.

But even in those early days, more aggressive strategies were budding. As prosecutors began to indict ordinary business crimes 156 and government corruption cases 157 as "racketeering conspiracies," defense attorneys began to argue that RICO should be construed in ways that reflected more closely its original purposes and gave less scope to its broad wording.

The courts had little difficulty with most of these arguments. They repeatedly and emphatically rejected arguments that RICO applied only to defendants who were part of "organized crime." 158 This decision was clearly correct; as we have seen, the legislative history requires the conclusion that Congress made a conscious decision not to define RICO liability in terms of any such conception and instead to define the statute's reach in terms of particular behavior. 159 More troublesome was the argument that the definition of a RICO "enterprise" should be limited in various ways.

2. Government Agenicies. -- One common form of this argument was the claim that a governmental unit could not be a RICO "enterprise." 160 The argument here had considerable force. As we have seen, the original idea behind RICO was that organized crime posed a threat to legitimate society, among other things, through the infiltration of legitimate business enterprises. 161 Although the concept of "enterprise" in the statute as ultimately drafted is a broad one in the  [*698]  sense that it covers a broad range of forms of organization, the language is at least open to the interpretation that an "enterprise," granted that it may take any form, must function as a business undertaking. After all, an enterprise under the statute is something in which one may acquire an "interest." 162 Moreover, while the legislative history reflects a conscious effort to move away from "organized crime" as a defining concept, no similar intent to move beyond the concept of "penetration of legitimate business" is explicit in the remarks made by RICO's congressional supporters.

Nevertheless, most courts that considered the "government enterprise" issue had little difficulty resolving it in favor of the prosecution, and correctly so. First, the statutory language does not encourage the creation of exceptions to the definition of enterprise. Although the definition is comprehensive in terms of the forms that an enterprise might take, rather than of the objects that it might have, the breadth of the list, the choice of the extremely general term "enterprise," and the absence of any restriction whatever on the substance or purpose of the enterprise, all reinforce the conclusion that the statute covers the broadest possible range of activity. Second, even if the principal focus of congressional discussion in the debates leading to the adoption of RICO was on the infiltration of businesses by organized crime, it is by no means clear that the infiltration of other sorts of "enterprises" was outside the scope of the discussion. Labor unions, for example, were prominently mentioned as a type of entity frequently targeted by organized criminal groups. 163

Finally, it is possible to analogize with some success from the type of infiltration that directly concerned the congressional supporters of RICO to the corruption of government functions. A government department  [*699]  is not the sort of thing in which one may acquire an interest, or in which one can invest the proceeds of racketeering, and therefore it can never be the "enterprise" in a prosecution under sections 1962(a) or (b); in that sense, it may never be "infiltrated" in the manner proscribed by the statute. 164 On the other hand, once the statute was expanded to go beyond the act of infiltration to prohibit as well the operation of an enterprise by racketeering means, a police department or tax assessor's office is in precisely the same condition as a contractor or a labor union. If a business executive or union leader is in violation of the statute when he operates his enterprise through a pattern of racketeering acts, even though he has no previous ties to organized crime or other criminal record, the concept of infiltration is meaningless as a restraint on the statute's sweep, and the sheriff who runs his department through a pattern of racketeering is perverting the function of a legitimate institution in precisely the same way as the corrupt executive or infiltrating racketeer. Congress may not have foreseen this use of the statute, but it can hardly be argued that it intended to preclude it, or that prosecutions for corrupting government departments are radically different from those for corrupting other legitimate institutions.

3. Criminal Enterprises. -- A far more difficult question was whether the concept of an enterprise could be limited to "legitimate" entities. Inclusion of government bodies as "enterprises" preserves the feature of RICO that makes violations of that statute distinct from other sorts of criminal behavior: perversion of legitimate activities to criminal purposes. But if it is a crime to operate a criminal enterprise by criminal means, that distinctive rationale for the statute falls away, and it becomes more difficult to articulate what, if anything, holds the statute together as a coherent set of prohibitions.

Perhaps for this reason, the application of RICO to criminal enterprises became a far more controversial issue than its application to governmental ones. 165 Moreover, as we shall see below, 166 the use of  [*700]  RICO against illicit enterprises would become the most important, and the most radical, application of the criminal provisions of RICO.

At one level, the use of RICO to attack criminal syndicates directly presents a fairly ordinary problem of statutory interpretation. As we have seen, the legislative history of RICO clearly reveals the understanding of those who discussed it in Congress that the specific purpose and effect of RICO was to penalize organized crime infiltration of legitimate business. 167 But the language chosen by Congress to effectuate this purpose was easily susceptible to a broader interpretation. 168 Moreover, this broader interpretation was fully consistent with the broad purposes of RICO and of the Organized Crime Control Act of which it is a part -- the legislative history of the statute is replete with examples of proponents of the bill discussing in broad general terms the menace of organized crime, Congress' resolve to do something about it, and the need for innovative legal weapons to accomplish the goal. 169 Whether a statute should be interpreted to cover a case within the literal meaning of its language but apparently not specifically intended by its enactors to be covered is a common problem in statutory interpretation, and the response that "it is [not] normally a proper judicial function to try to cabin the plain language of a statute, even a criminal statute, by limiting its coverage to the primary activity Congress had  [*701]  in mind when it acted" 170 is a familiar one. Especially in light of the statute's highly unusual instruction to interpret RICO's language liberally to effectuate its purposes, 171 it is not surprising that when the courts were faced with precisely the sort of innovative attacks on Congress' announced target that the legislators seemed to be demanding, they rapidly signed on in support.

The principal consideration favoring restraint in accepting the Government's proffered interpretation, however, is the radical change in the sort of criminal prosecutions that could be brought once the application of RICO to wholly illegitimate enterprises was accepted. This interpretation of the statute is not merely, as the courts might have thought, a simple extension of the legislative purpose to an unforeseen application within the language of the statute and not in conflict with the broad purposes of the legislation. Rather, it permitted the transformation of RICO into a completely different sort of statute than Congress had envisaged. The effects of this change are discussed in greater detail in Part III of this Article; 172 only the more obvious ones are traced here.

The crimes created by RICO that most directly effectuate the original purpose of the statute reflect a rather traditional view of the nature of a criminal act. Sections 1962(a) and (b) each prohibit a single action or effect that occurs at a particular time and place: the investment of a sum of money or the acquisition of an interest in a business, respectively. This is not to say that proof of such violations will be simple, that the trials to prove them will not be long, or that the evidence may not show a lengthy, complex, and horrifying course of conduct. In a prosecution under section 1962(a), for example, the prosecutor may be able to prove numerous, potentially disparate criminal acts that provided the capital invested by the racketeer in a particular instance. In a section 1962(b) case, a course of conduct including several different crimes may have been the means by which the interest in the legitimate enterprise was acquired or maintained.

Nevertheless, there is in each case a single act or effect that culminates the course of conduct, crystallizes the criminal liability of the defendant, and provides a specific focus for the trial: the acquisition  [*702]  of the enterprise. All of the acts of racketeering charged against the defendant must be related to that goal. This required relationship substantially limits the scope of the crimes that can be proved in a single trial. If the defendant is believed to have committed a dozen crimes over ten years, only those that are related to the infiltration of the enterprise, or that are otherwise joinable under the ordinary rules of procedure, 173 may be part of the same indictment.

The same feature of this sort of prosecution limits the number of defendants likely to be tried together. Since the prohibited act is the acquisition of the enterprise, only those actors who intended to further that goal can be charged as accomplices or co-conspirators in that crime. For example, all those who were associated with the racketeer's past criminal acts that provided him with the cash he used to violate section 1962(a) presumably are not chargeable as part of a conspira