8.151 VIOLENT CRIME OR ATTEMPTED VIOLENT CRIME

IN AID	OF	RACKETEERING ENTERPRISE

(18 U.S.C. § 1959)

The defendant is charged in Count _______ of the indictment with [committing] [threatening to commit] [attempting to commit] [conspiring to commit] a crime of violence, specifically, [specify crime of violence] in aid of a racketeering enterprise in violation of Section 1959 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, on or about the time period described in Count _______, an enterprise affecting interstate commerce existed;

Second, the enterprise engaged in racketeering activity;

Third, the defendant [committed] [threatened to commit] [attempted to commit] [conspired to commit] the following crime of violence: [specify crime of violence] as defined in [specify jury instruction stating all elements of predicate crime of violence]; [and]

Fourth, the defendant's purpose in [[committing] [threatening to commit] [attempting to commit] [conspiring to commit]] [specify crime of violence] was to gain entrance to, or to maintain, or to increase [his] [her] position in the enterprise[.] [and]

[Fifth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant's intent to commit the crime.

Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant's act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.

Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]

Comment

Use this instruction in conjunction with Instructions 8.152 (Racketeering Enterprise—Enterprise Affecting Interstate Commerce—Defined), 8.153 (Racketeering Activity—Defined), 8.154 (Racketeering Enterprise—Proof of Purpose); and an instruction setting forth the elements of the predicate crime of violence. When the charge alleges an attempt or conspiracy to commit a crime of violence, include an appropriate instruction as to attempt or conspiracy. See Instruction 5.3 (Attempt) and Instruction 8.20 (Conspiracy—Elements).

In United States v. Banks, 514 F.3d 959, 964 (9th Cir. 2008), the Ninth Circuit summarized existing case law that identified the four elements necessary for a conviction of committing violent crimes in aid of racketeering activity (VICAR):

The VICAR statute provides that '[w]hoever, . .. for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders [or] . . . assaults with a dangerous weapon . . . in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished.' 18 U.S.C. § 1959(a) (emphasis added). In our prior decisions we have identified four elements required for a conviction under this statute: '(1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendant[ ] committed a violent crime; and (4) that [the defendant] acted for the purpose of promoting [his] position in a racketeering enterprise.' United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995); see also United States v. Fernandez, 388 F.3d 1199, 1220 (9th Cir. 2004).

In United States v. Houston, 648 F.3d 806, 819-20 (9th Cir. 2011), the Ninth Circuit held it was not error to refuse to instruct on second degree murder as a lesser predicate to VICAR first degree murder.

A charge under Section 1959 also applies to violent crimes committed "as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity." If that is the basis of the charged crime, the fourth element of the instruction should be modified accordingly. See United States v. Concepcion, 983 F.2d 369, 384 (2d Cir. 1992) (Section 1959 is sufficiently inclusive to encompass actions of an "independent contractor," as it reaches not only those who seek to maintain or increase their positions within a RICO enterprise, but also those who perform violent crimes as consideration for the receipt of anything of pecuniary value from such an enterprise).

The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant's actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).

The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).

"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).

Approved 4/2019