Boyle v. United States
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Authorship: JP Schnapper-Casteras
Contents |
[edit] Briefs and Documents
Docket: 07-1309
- Brief for Petitioner Edmund Boyle
- Brief for Respondent United States of America
- Reply Brief for Petitioner Edmund Boyle
Amicus briefs
Oral Argument
Decision: Affirmed in an opinion by Justice Alito
[edit] Pre-Argument Articles
[edit] Argument Preview
On Wednesday, January 14, the Supreme Court considered whether an enterprise requires the existence of an ascertainable structure under the Racketeer Influenced and Corrupt Organizations Act (RICO).
[edit] Background
RICO § 1962(c) makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign 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.” RICO defines "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." In United States v. Turkette (1981), the Supreme Court held that (1) "an enterprise includes any union or group of individuals associated in fact”; (2) the existence of an enterprise "is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit”; and (3) “[i]n order to secure a conviction under RICO, the [g]overnment must prove both the existence of an ‘enterprise’ and the connected ‘pattern of racketeering activity.’"
Petitioner Boyle was convicted of racketeering and conspiracy to commit racketeering, in violation of RICO, 18 U.S.C. § 1962(c)-(d), as well as other burglary charges. His convictions stemmed from his participation in what the government dubbed the “Boyle Crew” bank burglary ring. At trial, the district court instructed the jury, over Boyle’s objection, that "you may find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts.” The court rejected Boyle’s request to instruct the jury that an association-in-fact enterprise requires “an ongoing organization, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts.”
On appeal, Boyle challenged his conviction, including specifically the jury instruction. However, the court of appeals did not address the issue, instead stating only that it "considered [petitioner]’s other challenges to the judgment of conviction and find them without merit." The court of appeals vacated Boyle’s sentence and remanded for resentencing based on the district courts’ failure to credit petitioner for 33 months of imprisonment already served. On remand, the district court adjusted the credits accordingly and re-imposed the same sentence. Boyle appealed that judgment.
[edit] Petition for Certiorari
In his petition for certiorari, Boyle stresses that certiorari should be granted because the circuits are divided over Turkette’s interpretation of enterprise. Four circuits (the Third, Fourth, Eight, and Tenth) read Turkette to require some kind of ascertainable structure beyond a mere pattern of illegal racketeering activity. Another group of circuits (the First, Second, Eleventh, and D.C.) have rejected the ascertainable structure requirement. The Seventh Circuit took yet a different approach, requiring some kind of ascertainable structure, but not necessarily one separate from the pattern of the predicate crimes.
In Boyle’s view, the First Circuit and its sisters misconstrue Turkette and RICO to mean that if two or more parties perform a series of predicate acts for mutual benefit, that necessarily constitutes an enterprise. This in turn transforms "run-of-the-mill” conspiracy cases into automatic RICO violations. The rule in Turkette, Boyle explains, contemplated “some degree of organizational hierarchy, structure and role definition”; RICO was thus not meant to reach all criminal enterprises, just those with the requisite qualities.
In its brief in opposition, the government advances three reasons for denying cert. First, it argues that the court of appeals’ decision does not actually conflict with any decision of the Supreme Court. The district court correctly instructed the jury that the prosecution had to prove both the existence of a RICO enterprise and a pattern of racketeering activity. (While Turkette held that an enterprise is "separate and apart" from the pattern of racketeering activity, it also recognized that "the proof used to establish these separate elements may in particular cases coalesce.") The government also contends that neither Turkette nor RICO’s text contained an ascertainable structure requirement. Rather Turkette held that an enterprise can consist merely of "a group of persons associated together for a common purpose of engaging in a course of conduct," established "by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." Furthermore, an “ascertainable structure” requirement would conflict with RICO’s coverage of legitimate as well as illegitimate enterprises.
Second, the government contends that to the extent the courts of appeals are divided, any such disagreement is superficial and limited. The circuits which adopted an “ascertainable structure” requirement also accepted, following Turkette, that the same evidence can establish a pattern of racketeering activity as well as the existence of a RICO enterprise. Consequently, the “ascertainable structure” requirement rarely if ever produces a different result than a straightforward Turkette test.
Third, the government posits that this case is not a proper vehicle to resolve any disagreement because the court of appeals’ decision is an unreported, per curiam, summary order, which does not analyze or discuss the issue at hand. Alternatively, even if “ascertainable structure” were an actual requirement, the evidence at trial would satisfy it, because the alleged racketeers demonstrated a degree of sophistication and experience typical of ongoing criminal organizations.
In his reply brief, Boyle stresses again that RICO was not meant to reach any and all criminal enterprises but instead to "target[] a more sophisticated crowd,” such as truly organized criminal groups. Moreover, he notes, the “ascertainable structure requirement has in fact determined the outcomes of some cases. Nor, he contends, should any weight be given to the scarcity of reversals on the basis on insufficient proof of enterprise – because deference is due to the jury on appeal – the fact that the Supreme Court has previously denied certiorari in similar cases, or that the district court opinion was an unreported, per curiam, summary order. Finally, petitioner rejects the government’s characterization of the evidence, noting that the features of this case are true of any ongoing bank burglary conspiracy – not only RICO enterprises.
[edit] Merits Briefing
In his merits brief, Boyle advanced five arguments in support of his claim that an association-in-fact enterprise must have some ascertainable structure. First, Boyle contended that the “ascertainable structure” requirement is implicit in the language and logic of Turkette, which described an associative “enterprise” as a separate “entity” with “ongoing organization” as well as a “continuing unit” of associates. He also used dictionary definitions to show that “organization” and “structure” are essentially synonymous, and he drew from other cases which required (1) a defendant to ““participate in the operation or management of the enterprise itself” and (2) that predicate acts be related and continuous to form a RICO pattern.
Secondly, Boyle derived an “ascertainable structure” requirement from RICO’s structure, including the very use of the words “Racketeer” and “Organizations” in the title of the act itself. Further, in the statute’s text, the phrase “associated in fact” is juxtaposed with “although not a legal entity” – a reading reinforced by similar distinctions made in the Organized Crime Control Act and Violent Crimes in Aid of Racketeering Act.
Third, Boyle posited that the “ascertainable structure” requirement comports with RICO’s legislative history and purpose: to combat organized crime in syndicates, businesses, labor unions, and government agencies. These types of enterprises distinguish structured criminality from average conspiracy and were a driving force behind RICO’s passage.
Fourth, this interpretation is compatible with RICO’s enforcement, namely because the government’s tactical advantages under RICO imply an “ascertainable structure” requirement.
Fifth, the principle of lenity compels such a reading to avoid Fifth and Sixth Amendment problems of vagueness, lack of notice, and the government’s burden of proof.
In its brief on the merits, the government counters with five key reasons why an enterprise need not possesses independent ascertainable structure:
First, RICO’s definition of enterprise contains no such requirement. In fact, RICO’s text and structure, as the Court explained in Turkette, show that Congress defined enterprise broadly to contain both formal and informal organizations, including those with just an individual. Indeed, elsewhere in the legislation that enacted RICO, Congress described certain criminal structures, but chose not to do so in limiting RICO’s scope. Boyle’s “ascertainable structure” requirement is a vague concept, which he himself was unable to define. Moreover, the Supreme Court has previously refused to adopt a narrowing construction of RICO “to make it conform to a preconceived notion of what Congress intended to proscribe.”
Second, the government asserted that under RICO an “enterprise” and “pattern” of racketeering activity are distinct concepts. Indeed, an enterprise can exist when a criminal group pursues non-racketeering activities. Conversely, an individual can conduct racketeering activities with different pairs of criminals without constituting an association-in-fact. To fulfill its purpose, RICO’s scope must include criminal groups operating over time or without formal structure. Under the proper reading of Turkette, an enterprise and its activity are simply two separate things, requiring its own proof – but not intimating additional structure.
Third, the government argued that an “ascertainable structure” requirement is not necessary to distinguish between RICO offenses and conspiracy. RICO’s terms and titles do not imply such a narrow definition of “enterprise,” as Boyle suggested. A normal conspiracy would not necessarily constitute an enterprise, whereas an association-in-fact enterprise, according to Turkette, is an organization or entity with an “ongoing” existence and members who “function as a continuing unit.”
Fourth, an “ascertainable structure” requirement finds no support in the Supreme Court’s other decisions. Boyle’s argument to the contrary relies on a misreading of these cases, selectively using dictionary definitions instead of the plain language and context of the statute. The fact that those cases sometimes describe enterprises in hierarchical terms does not in itself require all RICO enterprises have ascertainable structures.
Fifth, Boyle’s analysis of RICO’s text, title, and purpose did not support the “ascertainable structure” requirement. The statute’s use of the words “although” has no independent legal significance and its use of the phrase “any individual” forecloses a narrower reading of its list of legal entities, as does Turkette. Boyle misreads the statute to suggest “unions” means “labor unions” and “organizations” means “is synonymous with ‘structure.’”
Finally, the government quickly disposed of Boyle’s use of the principles of lenity and avoidance, explaining that the statute is broad but not ambiguous. And in any event, the evidence establishes a valid RICO enterprise, because the enterprise had a common purpose and functioned as a unit, regardless of whether it had an “ascertainable structure.”
In his reply brief on the merits, Boyle reiterated that the “ascertainable structure” requirement comports with RICO’s text and structure. Boyle argued that the government conflates “pattern” with “enterprise,” mistakenly suggesting that the former will always establish the existence of the latter. (Boyle also admits that a jury might sometimes infer the existence of an enterprise from proof of a pattern.) According to Boyle, the government also misunderstood Turkette by advancing a limitless conception of association-in-fact enterprises and placing undue emphasis on the statute’s “common purpose” language. Boyle noted that enterprises may be structured informally, and simply require “some structure” beyond predicate acts. The mere use of the word “individual” does not eliminate any structural requirement, because individuals could be the proprietors of structured legal entities. Finally, Boyle claimed that his ascertainable structure test is practicable: while a single definition of enterprise may be elusive, the jury can decide this question of fact, considering factors such as hierarchy, professionalism, or longevity.
[edit] Oral Argument Recap
Arguing for the petitioner, Marc Fernich began by stating that juries must be instructed that "enterprise" requires a structure separate from the commission of the predicate acts to properly separate elements of a RICO offense, consider each distinctly, and give the term “enterprise” independent meaning. Almost immediately, Justice Ginsburg asked whether Boyle was arguing that the jury instruction was erroneous or instead that prosecutors lacked sufficient evidence to go to the jury in the first place. Mr. Fernich responded that his focus was on the jury instruction, and that he made and preserved an objection on that issue. Justice Alito inquired as to the specific location of the faulty instruction, and Mr. Fernich reiterated his broad objection to the district court’s failure to require the jury to find an entity with a structure separate and apart from the pattern of racketeering.
Justice Scalia asked if a hypothetical group of bank robbers with various roles would constitute an enterprise under petitioner’s definition. Mr. Fernich answered that it would not because there was no ongoing decisional apparatus or continuing directional mechanism. Chief Justice Roberts later asked whether this answer would change if Justice Scalia’s hypothetical group committed more than one crime. Mr. Fernich answered that it would still not, although a properly instructed jury might still find structure on those facts.
Justice Kennedy pointed out that Boyle’s use of Turkette appeared to interpolate additional requirements. Mr. Fernich conceded that although Turkette is not directly controlling, it still implies a structure requirement.
Justice Ginsburg asked what the minimum requirements of a “structure” were. Mr. Fernich replied that it must have at least an ongoing directional mechanism, a continuing decision-making unit, and some sort of coherent existence between the commission of the racketeering acts. Justice Ginsburg again inquired what “ascertainable structural hierarchy” meant. Mr. Fernich responded that the structure must be separate from the commission of the predicate acts themselves, and that the judge might give the jury a number of examples. When Justice Ginsburg followed up by noting that Boyle’s group possessed qualities similar to those examples, such as longevity, modus operandi, and division of labor, Mr. Fernich countered that the longevity aspect was still in dispute.
Justice Scalia asked what the need for a hierarchy or boss was in the first place, as opposed to a democratic mob. Mr. Fernich noted that at trial, he objected to the jury instruction – of which hierarchy was just one part – in its entirety, rather than an irreducible minimum.
Justice Souter posited that the instruction might be correct because an individual can constitute an enterprise. In response, Mr. Fernich reiterated that “an individual” meant an entity such as a sole proprietorship. Justice Souter repeated that an individual would satisfy virtually all of the requirements by engaging in business, and he suggested that might be problematic for issuing meaningful jury instructions. Mr. Fernich replied that RICO does not define an individual as an association-in-fact enterprise and instead focuses on individuals as a legal enterprise.
Justice Ginsburg asked how street gangs would be treated. Mr. Fernich said he saw no problem establishing a structured enterprise with a regimented drug gang.
Justice Alito asked what, if formal hierarchy is not required, exactly needs to be shown beyond an association in fact and some continuity and pattern. Mr. Fernich repeated that the jury instruction require structure separate from the commission of the predicate acts themselves. Justice Alito again asked precisely what that meant; in Mr. Fernich’s view, it was a decision-making apparatus to guide the affairs of the enterprise, a directional mechanism.
Justice Kennedy indicated that a gang similar to Boyle’s seemed to meet that definition, but Mr. Fernich claimed that such a gang has no structure aside from what was necessary to commit each racketeering act. Justice Kennedy asked if the requisite continuity could be derived from the fact that if a person does not perform his job, he would not be included in that next heist. Mr. Fernich denied any record of such conditional participation in this case. Justice Ginsburg followed up by pointing to the record in this case, which in her view depicted a relatively steady group that hangs out together. Mr. Fernich suggested that Boyle’s group would go to clubs simply to socialize, not for other purposes.
Justice Alito posed another hypothetical about a gang that alternates crimes and roles every weekend. Mr. Fernich replied that a properly instructed jury probably could find that such a gang satisfies the structure requirement because of its ongoing existence, regular meetings, and degree of sophistication.
Justice Ginsburg asked whether, in this case, the organization would have satisfied the definition of structure at an earlier point in time, when it had a definite leader? Mr. Fernich conceded it might have at that point, but there was no evidence because that was outside the time frame of the jury and the facts of this case.
Justice Breyer asked if the term structure involves rules, understandings, or behavior that tend to keep the association together over time, other than those necessary to commit the particular crimes at issue. Mr. Fernich agreed that was a sensible definition of structure.
Anthony Yang, arguing for the United States, began by arguing that RICO's text and context, combined with the Supreme Court’s previous construction of the statute, show that RICO's definition of enterprise is broad and contains no ascertainable structure limitation. Justice Scalia quickly interjected by saying it might be problematic if a mere pattern of acts constitutes an enterprise. Mr. Yang responded that Boyle’s arguments were wrong as a formal matter, but also contended that the statute allowed a pattern to be established by acts committed by an individual defendant, not a group.
Justice Breyer asked if an individual can be a legal entity, and Mr. Yang answered yes, such as a sole proprietorship.
Chief Justice Roberts pointed out that there might still be a separate element for the jury to find. Mr. Yang suggested evidence of the pattern of activity allows the jury to infer the existence of an enterprise. And in response to a question from Chief Justice Roberts about which parts of the Seventh and Eighth Circuit’s separate instructions were unnecessary, Mr. Yang indicated that it was the ascertainable structure requirement, distinct from the pattern of racketeering.
Justice Alito asked if an individual might engage in a pattern of racketeering activity with others and yet not participate in an actual enterprise. Mr. Yang answered yes, if an individual commits a very long string of bank robberies, but each time with a different group of individuals. This would constitute a pattern but not an enterprise, since the individual is not working in concert with others to achieve an end. Chief Justice Roberts followed up, asking if an individual could still be an enterprise if he was an independent contractor. According to Mr. Yang, he could conceivably be deemed an enterprise, but not one with any relevance for RICO purposes.
Justice Alito posed a similar hypothetical, about an individual who went through his Rolodex to find people to rob banks with him. Mr. Yang again said it would be unlikely that the government could show an enterprise on that fact alone. Rather, RICO and Turkette require that the group of persons be associated together for a common purpose of engaging in a course of conduct and have some identity in the group.
Justice Souter asked why proving that was difficult. Mr. Yang explained that it is hard to show a person joined with others for the common purpose of engaging in a course of common conduct. Justice Souter then inquired why the government would not simply abandon that category and prosecute the individual. Mr. Yang reiterated that under RICO, there has to be distinctiveness in that context.
Justice Breyer posed a new hypothetical of two acquaintances who decided on the fly to rob a post office and bribe any policeman who interfere. Mr. Yang claimed RICO would not apply because there would no continuing criminal conduct – and that the second crime of bribery is either a threat or transpires after a break in continuity. Justice Breyer and Mr. Yang agreed that while RICO was not aimed at a simple conspiracy, it could be difficult to clearly show a pattern in some cases. Mr. Yang added that the enterprise requirement was separate, and could be shown by lawful or unlawful entities.
Chief Justice Roberts noted that, according to Mr. Fernich, the acts had spanned months, rather than years. Mr. Yang pointed out that the predicate acts here under RICO actually involved the interstate transportation of stolen funds.
Mr. Yang expressed his confusion at how this issue came to the Supreme Court in the first place – since it was based on the objection that was made to the district court, but seemed to be dropped and not made with regards to the entire jury instruction.
Justice Ginsburg asked whether the three different formulas that circuits have approved lead to different results. Mr. Yang said yes, in some cases, such as loosely knit gangs operating without hierarchy over a number of years. By contrast, petitioner’s rule would lead down a long course of case-by-case adjudication.
Justice Breyer – perhaps hoping to find a way to avoid overextending RICO or conflating elements so that one necessarily proves the other – asked if RICO would apply to a false statement made by two investment companies, and shown to several people over many years. Mr. Yang explained that such a problem does not exist, because the pattern element is satisfied by the individuals. Justice Breyer pointed out that even in his investment example, it was an individual who still performed the criminal act. He went on to argue that that garden-variety conspiracy of robbing a bank and transporting the money later should not fall within RICO. Mr. Yang responded first that Turkette allowed racketeering activity and the enterprise to be established in the same way. Second, conspiracy is inherently an inchoate act and it is the normal rule to separately charge someone with conspiracy and completion of the crime. By contrast, RICO gets most of its limiting structure from the pattern element and list of predicate acts.
Justice Scalia returned to the question presented and asked what the government’s answer was. Mr. Yang replied that an ascertainable structure was not a requirement and expressed difficulty at understanding its meaning, especially if hierarchy is not necessary. Justice Scalia rejoined that you would still have to tell the jury to find an enterprise, even if it required inference. Returning to Turkette, Mr. Yang gave the example of a group that formed only to commit predicate acts of racketeering over a 10-year period. It would be anomalous to exclude a group that committed only predicate acts, but to include a group that was only partially racketeering but wholly criminal. Chief Justice Roberts disagreed, because RICO was aimed not just at crimes but also certain types of organizations.
Justice Kennedy asked if the government would allow a jury to infer an enterprise from three RICO thefts occurring over a year. Mr. Yang said it might, provided the instruction include more detail about what was necessary to show an enterprise. When Justice Kennedy asked what source should be used to supplement the instruction in that way, Mr. Yang pointed to Turkette and the briefs and also noted in some detail the district court’s explanation of enterprise.
Chief Justice Roberts asked how an enterprise was different from predicate acts. Mr. Yang argued that you can have a series of predicate acts without an enterprise, or an enterprise without a series of predicate acts.
On rebuttal, Mr. Fernich began by agreeing with the government that a properly instructed jury could find racketeering acts are a distinct element from the association-in-fact enterprise. Rather, the lower courts have misread Turkette by not focusing on the pattern of activity, and mistakenly instructing juries as to the separateness of pattern and enterprise. Second, Mr. Fernich said the government’s focus on “common purpose” more closely resembles the hallmarks of conspiracy. Mr. Fernich quickly addressed whether he sufficiently objected below. He went on to largely agree with Justice Breyer's formulation of enterprise, adding that enterprise is a plain English word the jury and judge can further interpret. Finally, Mr. Fernich pointed out that burglaries are not predicate acts under RICO, because States are perfectly capable of handling them on their own.
[edit] Opinion Analysis
In its decision last Monday, June 15 in Boyle v. United States (No. 07-1309), the Supreme Court held that a criminal association-in-fact enterprise may exist if it has a purpose, sufficient longevity to accomplish that purpose, and relationships among associates – which can be inferred from the underlying acts and without a distinct structural hierarchy.
The case arises from a string of bank burglaries involving petitioner Boyle, for which he was ultimately convicted of racketeering and conspiracy to commit racketeering, in violation of RICO, 18 U.S.C. § 1962(c)-(d).
The district court instructed the jury, over Boyle’s objection, that it could “find an enterprise where an association of individuals, without structural hierarchy, form[ed] solely for the purpose of carrying out a pattern of racketeering acts” and that “[c]ommon sense suggests that the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure.” The court rejected Boyle’s request to instruct the jury that an association-in-fact enterprise requires “an ongoing organization, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts.”
Justice Alito, in his opinion for the seven-Justice majority, held that that an association-in-fact enterprise “must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” The trial judge, however, need not specifically use the word “structure” in the jury instruction and has discretion in crafting the instruction, so long as the substance of these requirements are present. The Court added that when a jury is instructed to find an element exists beyond a reasonable doubt, that element must be “ascertainable.”
But the Court declined to require more to prove an association-in-fact enterprise. The jury need not find some “structure” beyond that inherent in the pattern of racketeering activity, such as fixed roles or hierarchies or other features. Nor need the jury find an “ascertainable structure,” which would be “redundant and potentially misleading.” Instead, the Court emphasized the breadth of RICO’s “enterprise” concept relative to other federal statutes, and reaffirmed Turkette, which held that a pattern of racketeering activity may sometimes prove the existence of an enterprise. Applying this test, the Court upheld the jury instruction and found no need to reach Boyle’s other arguments about statutory purpose, legislative history, or the rule of lenity.
Justice Stevens dissented, joined by Justice Breyer. He would require the Government to “adduce other evidence of the entity’s ‘separate’ existence and ‘ongoing organization.’” In Justice Stevens’s view, Congress intended RICO “enterprises” to refer to business-like organizations that exist apart from the predicate acts committed by their associates. This interpretation is consistent with past cases construing “enterprise” broadly, because the organizations in those cases still had some separate structure, such as continuing operations, services to customers, nationwide networks, or regular meetings.
In rare cases, Stevens would allow the jury to infer an enterprise from the pattern of activity itself, but “only when the pattern of activity is so complex that it could not be performed in the absence of structures or processes for planning or concealing the illegal conduct beyond those inherent in performing the predicate acts.” Stevens found the majority’s reading to be “unbearably redundant”, since it renders “enterprise” virtually indistinguishable from conspiracies to commit predicate acts. Instead, he would require the Government to “carry its burden of proving that an alleged enterprise has an existence separate from the pattern of racketeering activity undertaken by its constituents.”
