8.154 RACKETEERING ENTERPRISE—PROOF	OF PURPOSE

(18 U.S.C. § 1959)

With respect to the fourth element in Instruction _______ [insert cross reference to pertinent instruction, e.g. Instruction 8.151], the government must prove beyond a reasonable doubt that the defendant's purpose was to gain entrance to, or to maintain, or to increase [his] [her] position in the enterprise.

It is not necessary for the government to prove that this motive was the sole purpose, or even the primary purpose of the defendant in committing the charged crime. You need only find that enhancing [his] [her] status in [name of enterprise] was a substantial purpose of the defendant or that [he] [she] committed the charged crime as an integral aspect of membership in [name of enterprise].

In determining the defendant's purpose in committing the alleged crime, you must determine what [he] [she] had in mind. Since you cannot look into a person's mind, you have to determine purpose by considering all the facts and circumstances before you.

Comment

Use this instruction in conjunction with Instructions 8.151 (Violent Crime in Aid of Racketeering Enterprise), 8.152 (Racketeering Enterprise—Enterprise Affecting Interstate Commerce—Defined), and 8.153 (Racketeering Activity—Defined). See Comment to Instruction 8.151. If the fourth element of Instruction 8.151 is modified, this instruction should also be modified.

"[T]he purpose element is met if 'the jury could properly infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership.'" United States v. Banks, 514 F.3d 959, 965 (9th Cir. 2008) (quoting United States v. Pimentel, 346 F.3d 285, 295-96 (2d Cir. 2003)).

"VICAR's purpose element is satisfied even if the maintenance or enhancement of his position in the criminal enterprise was not the defendant's sole or principal purpose." Banks, 514 F.3d at 965. The law, however, requires a defendant's purpose be "more than merely incidental." Id. at 969. Although the gang or racketeering enterprise purpose does not have to be "the only purpose or the main purpose" of a murder or assault, it does have to be a substantial purpose. Id. at 970. "Murder while a gang member is not necessarily a murder for the purpose of maintaining or increasing position in a gang, even if it would have the effect of maintaining or increasing position in a gang." Id.

The Ninth Circuit held that it was not error to instruct on an alternate Pinkerton theory

(co-conspirator's liability), even though under Pinkerton it is not necessary that the defendant

personally act for the purpose of maintaining his position in the enterprise provided that he had

that intent when he joined the conspiracy. United States v. Houston, 648 F.3d 806, 818-19 (9th

Cir. 2011).

In United States v. Smith, 831 F.3d 1207, 1217-18 (9th Cir. 2016), the Ninth Circuit considered whether it was error for the lower court to state that the purpose "must be more than merely incidental." The Smith Court noted this phrasing could imply the standard was too low, which could result in error. Id. at 1219. The Court noted, however, that the instruction should not use the word dominant because it "has a flavor" "suggest[ing] that the standard is very high." Id. Ultimately the court declined to weigh on which word should be used but said "substantial" "would convey the idea with more precision." Id.

Approved 1/2019