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Page 1 865 F.2d 1370, 57 USLW 2434, RICO Bus.Disp.Guide 7113 (Cite as: 865 F.2d 1370) Two acts of racketeering activity, without more, do not suffice to establish RICO “pattern.” United States Court of Appeals, 18 U.S.C.A. § 1961(1, 5). Second Circuit. UNITED STATES of America, Appellee, [2] Racketeer Influenced and Corrupt Organiza- v. tions 319H 28 Anthony INDELICATO, Defendant-Appellant. 319H Racketeer Influenced and Corrupt Organiza- Nos. 98, 106, Dockets 87-1085, 87-1215 and tions 87-1075 L. 319HI Federal Regulation Argued June 13, 1988. 319HI(A) In General Decided Jan. 13, 1989. 319Hk24 Pattern of Activity 319Hk28 k. Continuity or Relatedness; Defendant was convicted of participating and Ongoing Activity. Most Cited Cases conspiring to participate in affairs of enterprise (Formerly 83k82.70) through pattern of racketeering activity in violation Relatedness and continuity are essential char- of RICO by the United States District Court for the acteristics of RICO activity, rather than of RICO Southern District of New York, Richard Owen, J., enterprise. 18 U.S.C.A. § 1961(1, 4, 5). and he appealed. The Court of Appeals, Kearse, Circuit Judge, held that nearly simultaneous [3] Racketeer Influenced and Corrupt Organiza- murders of three individuals to facilitate change in tions 319H 29 leadership of organized crime family satisfied RICO's “pattern” requirement. 319H Racketeer Influenced and Corrupt Organiza- tions Affirmed. 319HI Federal Regulation 319HI(A) In General Oakes, Circuit Judge, concurred and filed opin- 319Hk24 Pattern of Activity ion in which Feinberg, J., joined. 319Hk29 k. Time and Duration. Most Cited Cases Mahoney, Circuit Judge, concurred and filed (Formerly 83k82.70) opinion. Necessary relatedness between RICO predicate West Headnotes acts may be established by proof of their temporal proximity, common goals, similarity of methods, or [1] Racketeer Influenced and Corrupt Organiza- repetitions. 18 U.S.C.A. § 1961(1, 5). tions 319H 26 [4] Racketeer Influenced and Corrupt Organiza- 319H Racketeer Influenced and Corrupt Organiza- tions 319H 27 tions 319HI Federal Regulation 319H Racketeer Influenced and Corrupt Organiza- 319HI(A) In General tions 319Hk24 Pattern of Activity 319HI Federal Regulation 319Hk26 k. Number of Predicate Acts. 319HI(A) In General Most Cited Cases 319Hk24 Pattern of Activity (Formerly 83k82.70) 319Hk27 k. Number of Schemes, Goals, Episodes, or Transactions. Most Cited Cases © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 865 F.2d 1370, 57 USLW 2434, RICO Bus.Disp.Guide 7113 (Cite as: 865 F.2d 1370) (Formerly 83k82.70) 319HI Federal Regulation RICO “pattern” can be established without 319HI(A) In General proof of more than one scheme, episode or transac- 319Hk24 Pattern of Activity tion, and without proof that scheme pursuant to 319Hk28 k. Continuity or Relatedness; which racketeering acts were performed is scheme Ongoing Activity. Most Cited Cases with no apparent termination date. 18 U.S.C.A. § (Formerly 83k82.70) 1961(1, 5). Relatedness and continuity necessary to show RICO “pattern” may, in appropriate cases, be estab- [5] Racketeer Influenced and Corrupt Organiza- lished through nature of RICO enterprise. 18 tions 319H 27 U.S.C.A. § 1961(1, 4, 5). 319H Racketeer Influenced and Corrupt Organiza- [8] Racketeer Influenced and Corrupt Organiza- tions tions 319H 49 319HI Federal Regulation 319HI(A) In General 319H Racketeer Influenced and Corrupt Organiza- 319Hk24 Pattern of Activity tions 319Hk27 k. Number of Schemes, 319HI Federal Regulation Goals, Episodes, or Transactions. Most Cited Cases 319HI(A) In General (Formerly 83k82.70) 319Hk49 k. Nexus Between Enterprise Multiple acts of racketeering activity are not and Acts. Most Cited Cases excluded from reach of RICO simply because they (Formerly 83k82.70) achieve their objective quickly or because they fur- No RICO violation can be shown unless there ther but a single scheme. 18 U.S.C.A. § 1961(1, 5). is proof of specified relationship between racketeer- ing acts and RICO enterprise. 18 U.S.C.A. § [6] Racketeer Influenced and Corrupt Organiza- 1962(a-c). tions 319H 29 [9] Racketeer Influenced and Corrupt Organiza- 319H Racketeer Influenced and Corrupt Organiza- tions 319H 28 tions 319HI Federal Regulation 319H Racketeer Influenced and Corrupt Organiza- 319HI(A) In General tions 319Hk24 Pattern of Activity 319HI Federal Regulation 319Hk29 k. Time and Duration. Most 319HI(A) In General Cited Cases 319Hk24 Pattern of Activity (Formerly 83k82.70) 319Hk28 k. Continuity or Relatedness; RICO “pattern” requirement may be satisfied Ongoing Activity. Most Cited Cases by predicate acts which are nearly simultaneous, as (Formerly 83k82.70) long as there is sufficient similarity between them Evidence of nature of RICO enterprise may be and evidence of a threat of continuation of racket- used to show threat of continuity sufficient to estab- eering activity. 18 U.S.C.A. § 1961(1, 5). lish RICO pattern. 18 U.S.C.A. § 1961(1, 4, 5). [7] Racketeer Influenced and Corrupt Organiza- [10] Racketeer Influenced and Corrupt Organiz- tions 319H 28 ations 319H 28 319H Racketeer Influenced and Corrupt Organiza- 319H Racketeer Influenced and Corrupt Organiza- tions tions © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 865 F.2d 1370, 57 USLW 2434, RICO Bus.Disp.Guide 7113 (Cite as: 865 F.2d 1370) 319HI Federal Regulation victing him of participating and conspiring to parti- 319HI(A) In General cipate in the affairs of an enterprise through a pat- 319Hk24 Pattern of Activity tern of racketeering activity, in violation of the 319Hk28 k. Continuity or Relatedness; Racketeer Influenced and Corrupt Organizations Ongoing Activity. Most Cited Cases Act (“RICO”), 18 U.S.C. § 1961 et seq. (1982 & (Formerly 83k82.73) Supp. IV 1986). He was sentenced to two consecut- Nearly simultaneous murders of three individu- ive 20-year terms of incarceration and a $50,000 als to facilitate change in leadership of organized fine. His appeal and the appeals of his codefendants crime family satisfied RICO's “pattern” require- were heard by a panel of this Court and remain ment, where nature of RICO enterprise made it pending before that panel. We granted this rehear- clear beyond peradventure that there was threat of ing en banc in order to consider the limited ques- continuing racketeering activity. 18 U.S.C.A. § tion of whether Indelicato's participation in three 1961(5). murders as part of a single criminal transaction could constitute a “pattern of racketeering activity” *1371 John F. Savarese, Asst. U.S. Atty., New within the meaning of RICO, 18 U.S.C. § 1961(5). York City (Rudolph W. Giuliani, U.S. Atty. For the reasons below, we answer that question in S.D.N.Y., Aaron Marcu, John Gilmore Childers, the affirmative, and we remand the matter to the Asst. U.S. Attys., Michael Chertoff, Sp. Asst . U.S. panel for further proceedings consistent with this Atty., New York City, on the brief), for appellee. holding. Mark F. Pomerantz, New York City (Ronald P. I. BACKGROUND Fischetti, Warren L. Feldman, David T. Grudberg, Indelicato was charged in two counts of a Fischetti & Pomerantz, New York City, on the 25-count superseding indictment charging him and brief), for defendant-appellant. seven codefendants with various crimes arising out of operations of an organization known as the Gerald B. Lefcourt, P.C. (Gerald B. Lefcourt, “Commission” of La Cosa Nostra, which was al- Joshua L. Dratel, New York City, Walter P. Lough- leged to be the ruling body of the La Cosa Nostra lin, Newark, N.J., of counsel), for amicus curiae organized crime families throughout the United Marvin Kaplan. States. The Commission was alleged to be a RICO enterprise, and Indelicato was charged with one FN* * Before OAKES, Chief Judge, FEINBERG, count of participating in, and one count of conspir- MESKILL, NEWMAN, KEARSE, CARDAMONE, ing to participate in, the affairs of the Commission PIERCE, WINTER, PRATT, MINER, ALTIMARI, through a pattern of racketeering activity, in viola- and MAHONEY, Circuit Judges. tion of 18 U.S.C. §§ 1962(c) and (d), respectively. To the extent pertinent to the question con- FN* Judge Oakes succeeded Judge Fein- sidered in this en banc rehearing, the evidence at berg as Chief Judge while this matter was trial, taken in the light most favorable to the gov- sub judice. ernment, revealed the following. The Commission had existed for decades as the governing body of KEARSE, Circuit Judge: the five La Cosa Nostra families in New York City Defendant Anthony Indelicato has appealed and affiliated families in other cities. Each organ- from a judgment entered in the United States Dis- ized crime family included a “boss” or leader, as- trict Court for the Southern District of New York, sisted by an underboss and a counselor; beneath after a jury trial before Richard Owen, Judge, con- this level were “capos” or captains, who supervised © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 865 F.2d 1370, 57 USLW 2434, RICO Bus.Disp.Guide 7113 (Cite as: 865 F.2d 1370) a number of people who had been made “members” On July 12, 1979, Indelicato and two other or “soldiers” of the family. To be made a member men, all wearing ski masks, entered a restaurant in of such a family, one was required *1372 to vow Brooklyn, New York, where Galante, his cousin Gi- obedience to the rules and orders of the Commis- useppe Turano, and Galante's friend and associate sion and to be personally approved by it for admis- Leonard Coppola were having lunch. Using guns of sion. The functions of the Commission included the type earlier amassed at the bar, Indelicato and overseeing interfamily ventures and intrafamily his two companions shot and killed Galante, Tur- leadership disputes.

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