One of the most common misconceptions of RICO is that a conspiracy, an agreement among wrongdoers, is required. This is not accurate. RICO has three parts and none of them requires a conspiracy. Rather, they all require one wrongdoer and an enterprise. The interplay between the two varies among sections (a), (b), and (c) of 18 U.S.C. 1962, RICO’s main provision. Under 1962(a) the wrongdoer (known as the “person” in the statute) uses an enterprise to launder money derived from a pattern of racketeering activity. The enterprise can be any type of business entity or another human being. But the enterprise is not a conspirator of the person. The enterprise is more accurately a victim of the person’s unlawful activity by being used to conceal its illicit gains.
In 1962(b), the person obtains control of an enterprise, typically a business, through some type of racketeering activity, typically extortion. The typical case would be a mobster who forces an innocent business owner to give him control of a business as “protection money.” The mobster is hardly a conspirator with the RICO enterprise of which he is acquiring control of. Again, the enterprise is more accurately seen as a victim of his illicit acts. The innocent business owner who has lost control of his business would be able to bring a civil RICO suit against the mobster by alleging he wants the value of his enterprise back.
In 1962(c), the most commonly used section, the racketeer participates in the affairs of an enterprise. In theory, this sounds like a traditional conspiracy. The person and the enterprise are on the same wavelength. But in reality, unless the enterprise is a an organized crime family, and civil RICO cases are not brought against them, the enterprise will again be a legitimate business entity. If a person is participating in the affairs of a legitimate business, usually a corporation, the racketeer will be committing a federal crime in order to enhance the businesses’ profits. So, the racketeer is really corrupting the enterprise. Again, the enterprise is more of a victim or tool of the racketeer than a conspirator.
RICO cases can be brought against conspirators who work together as RICO persons to violate 1962(a), (b), or (c). But that is not necessary. The law only requires one person and one enterprise. RICO requires enterprise criminality not conspiracy. The misconception could stem from the original purpose of the law, which was to combat long-term organized crime. Crime families operate in groups. But in the 1980’s the Supreme Court decided RICO applied to legitimate, even respected, business enterprises. In one of those cases, the RICO enterprise was a regulated telephone company, about as far from the prototypical mob organization as can be imagined. So civil RICO evolved into something quite different from how it began, as most laws do, and conspiracies are not required.