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Few charges are more fear provoking than a federal RICO charge. it used to be that the crime of conspiracy was referred to as the "darling of the prosecutor" because conspiracy is such a broad and nebulous crime. RICO, however, takes breadth and vagueness to entirely new extremes. 

 

WHAT EXACTLY IS RICO?

​​​RICO stands for "Racketeer Influenced and Corrupt Organizations Act," and is codified in 18 U.S.C. §§ 1961-1968. RICO charges are among the most serious and complex criminal allegations in the federal system. Prosecutors often use RICO to target alleged long-term criminal activity involving multiple people, repeated acts, and an organized structure that extends beyond a single offense. Because RICO can dramatically increase sentencing exposure and allow the government to tell a “big picture” story to a jury, defending these cases requires early, strategic, and highly detailed legal work.

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A strong defense begins with understanding what the government must prove. RICO is not simply about committing crimes. It is about participating in an enterprise through a pattern of racketeering activity, and doing so in a way that connects the defendant to the organization’s conduct. If prosecutors cannot establish those required elements, a RICO case may be vulnerable to dismissal, severance, suppression, or a not-guilty verdict at trial.

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Here we provide an overview of the legal building blocks of a federal RICO charge—and the defenses that may apply.

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What Constitutes a “RICO Enterprise”?

A RICO case must involve an enterprise, but the term is broader than many people expect. An enterprise can be a formal organization, such as a corporation, union, or partnership. It can also be an informal association of individuals working together for a shared purpose.

In federal court, the government typically argues one of two types of enterprises:

1. A legal entity enterprise
   This includes businesses and organizations that exist on paper—like companies, nonprofits, or government offices.

2. An “association-in-fact” enterprise
   This is a group of individuals who may not have official titles, paperwork, or a formal hierarchy, but are alleged to function together as an ongoing unit.

To prove an enterprise, prosecutors generally must show three things:

• A common purpose (a shared goal or objective)

• Relationships among those involved (coordination or cooperation)

• Longevity (the group existed long enough to pursue its purpose)

Importantly, an enterprise is not automatically proven just because multiple people committed crimes around the same time. The government must show something more than a loose collection of individuals who happen to overlap. In many cases, the defense focuses on whether the alleged enterprise actually functioned as a continuing organization—or whether the government is trying to stretch ordinary criminal allegations into a RICO framework.

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The “Pattern of Racketeering” Requirement

Even if the government proves an enterprise existed, it must also prove a pattern of racketeering activity. This requirement is often the core battleground in RICO litigation.

A “pattern” generally requires at least two predicate acts of racketeering within a specified time period. Predicate acts are certain crimes listed in the statute, which may include allegations such as wire fraud, mail fraud, bribery, extortion, money laundering, drug trafficking, or witness tampering.

But two acts alone are not always enough. Prosecutors must also show:

• Relatedness: the acts are connected by similar purposes, methods, participants, victims, or results; and

• Continuity: the acts either occurred over a sufficient period of time (closed-ended continuity) or present a threat of ongoing criminal activity (open-ended continuity)

In practice, the defense may challenge whether the alleged acts are truly part of a single criminal pattern—or whether they are isolated incidents being grouped together to create a more dramatic narrative. Courts often scrutinize whether the conduct shows genuine long-term criminal continuity or simply a short-lived dispute, one-time scheme, or sporadic conduct that does not rise to the level required under RICO.

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Caveat: RICO Conspiracy

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Although, as explained immediately above, to prove a substantive RICO charge the government must prove that at least two predicate acts were committed, when the charge is RICO conspiracy the government is not required to prove the commission of two predicate offenses. This is because the crime of conspiracy requires only an "agreement" to violate the substantive crime -- here, RICO -- not that the substantive crime in fact was committed. For this reason, and because the potential penalty upon conviction is generally the same whether the defendant is convicted of a substantive RICO offense or a conspiracy to violate RICO, prosecutors often choose the easier route of charging only RICO conspiracy, though of course they can charge both.

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Defenses Against Federal Racketeering Charges

Because RICO cases involve multiple legal elements and often include many defendants, there are several defense strategies that may apply depending on the facts and the evidence.

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1. Challenging the Existence of the Enterprise

One of the most effective defenses is attacking the foundation of the RICO theory: the enterprise itself. The defense may argue that:

• the group lacked structure or continuity

• there was no shared purpose beyond individual self-interest

• relationships between alleged members were minimal or incidental

• the government is confusing social or business relationships with an enterprise

If the enterprise cannot be proven, the RICO charge will fail even if other crimes are alleged.

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2. Attacking the “Pattern” Requirement

Many RICO indictments rely on bundling acts together to suggest a long-running criminal project. The defense may argue:

• the predicate acts are not sufficiently related

• the acts do not show continuity over time

• the alleged conduct is too short-lived to qualify

• there is no real threat of ongoing activity

A successful pattern challenge can weaken the case substantially or result in dismissal of the RICO count.

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3. Disputing the Predicate Acts

RICO charges often depend on proving underlying crimes—such as fraud or extortion—that require specific intent. The defense may focus on:

• lack of intent or knowledge

• lawful explanations for communications or transactions

• missing proof of an essential element of the predicate offense

• unreliable witnesses or cooperating informants

If key predicate acts are not proven, the entire RICO structure may collapse.

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4. Lack of Participation in the Conduct of the Enterprise

Not every person associated with an alleged enterprise is guilty of RICO. The government must show meaningful participation—often framed as involvement in the operation or management of the enterprise’s affairs.

Defense strategies may include showing the defendant was:

• merely present or peripherally involved

• a low-level participant without decision-making authority

• acting independently rather than on behalf of the enterprise

• engaged in legitimate business activity unrelated to racketeering

 

5. Severance and Prejudicial Spillover

RICO cases frequently involve multiple defendants and a large volume of allegations. A major defense concern is “spillover”—where evidence against one person unfairly prejudices the jury against another.

A defense team may seek:

• severance (separate trials)

• limiting instructions

• exclusion of irrelevant or inflammatory evidence

These procedural motions can be crucial to ensuring the jury evaluates each defendant fairly.

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6. Evidentiary and Constitutional Challenges

RICO investigations often involve surveillance, wiretaps, search warrants, and extensive document collection. Defense counsel may challenge:

• unlawful searches and seizures

• defective warrants

• improper wiretap authorization

• coerced statements or Miranda violations

• unreliable identification procedures

Suppressing evidence can significantly alter the strength of the prosecution’s case.

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Conclusion

A federal RICO charge is not simply an accusation of criminal behavior—it is an attempt to prove an organized structure, ongoing coordination, and a pattern of racketeering tied to an enterprise. Because RICO is complex and powerful, a successful defense often involves breaking the case apart: challenging the enterprise, disputing the pattern, undermining predicate acts, and preventing unfair prejudice from sweeping allegations.

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Early legal analysis is critical. RICO cases involve high stakes, often implicate mounds of complex evidence and often require a defense strategy that combines detailed motion practice, careful evidence review, and trial-ready preparation from the start.

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Facing a RICO or other charge? Call us.

Richard Levitt

Levitt & Kaizer

(917) 562-4000

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