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Oral Argument Recap: Boyle v. US

Stanford student JP Schnapper-Casteras discusses oral argument in Boyle v. US (No. 07-1309).  JP’s earlier work on the case is available on SCOTUSwiki, here.

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).

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.