tions for section 1962(c), the government must demonstrate that a defendant com-mitted at least one predicate racketeering act within the limitations period.”). On
“continuing offenses,” see, supra, note 57.
To the degree that the rule of Persico envisions that any act committed by any co-defendant counts, it is similar to the usual rule for continuing offenses (e.g., conspir-acy.). Hyde stands for the rule that each co-conspirator is responsible for the acts of each other co-conspirator: “The statute cuts through such puzzles and make the [first and last overt] act of a conspirator . . . the legal inception of guilt inculpating all and subjecting all to punishment.” Hyde v. United States, 225 U.S. 347, 362 (1912). One overt act in any jurisdiction anywhere makes each coconspirator subject to trial in that place. The opinion states:
Let him meet with his fellows in secret and he will try to do so; let the place be concealed, as it can be, and he and they may execute their crime in every State in the Union and defeat punishment[, as they would if the trial could only be held in the place where they hatched the conspiracy] . . . . We see no reason why a constructive presence should not be assigned . . . and do with it as with other crimes which are commenced in one place and contin-ued in another.
Id. at 363–64.
If the conspiracy continues, the court measures the period of limitation for each co-conspirator from the last overt act by any one of the co-conspirators, even if a particular conspirator does not commit an over act within the period. “[If one con-spirator does] not do anything within the . . . period but [understands] that further acts should be performed, they, if performed, would be his acts and would have the same effect against him as if he had done them himself.” Id at 368 (internal quota-tion marks omitted). Each conspirator is an agent for each other conspirator until the conspiracy ends or he affirmatively withdraws from the conspiracy. “As he has started evil forces he must withdraw his support from them or incur the guilt of their continuance.” Id. at 369–70; see also Salinas v. United States, 522 U.S. 52, 62–66 (1997).
To the degree that it envisions, as it does explicitly, a personal act by each defen-dant within the period of limitations, as it does, it indefensibly goes well beyond the usual rules for continuing offenses; it is squarely inconsistent with the language, ratio-nale, and holding in Salinas, which held that no personal act was required for sub-stantive or conspiracy under RICO. Id. It is an anachronism left over from the period in which a minority of circuits followed the personal act rule. See id. at 61–62 (citing United States v. Ruggiero, 726 F.2d 913, 921 (2d. Cir 1984); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981)). Neither Winter nor Ruggiero involved a limita-tions issue, but the “two personal acts” rule of Ruggiero lead to the result in Persico on the issue of limitations. Persico, 832 F.2d at 713 (citing Ruggiero on the two personal act requirement). In turn, the two personal acts requirement stemmed from lan-guage (not a holding) in United States v. Elliot, 571 F.2d 880, 903 (5th Cir. 1978), that summarized the language of the statute itself for a restatement of the elements of a violation, but nothing in Elliot said anything about a personal act requirement. See Civil Fraud Action, supra note 16, at 290 n.151 at 296–97 (tracing the evolution of rule in dicta, to a rule of evidence, to a rule of law, and finally to a rule with a limited rationale). The only trouble was that the brief rationale offered in Winter, “protection to those who might otherwise be convicted through guilt by association,” was perverse
in terms of the objective of RICO itself. 663 F.2d at 1136. Compare the Winter Court’s holding to United States v. Neapolitan, which held that:
The crime chieftains . . . have developed the process of ‘insulation’ to a remarkable degree. . . . Convicting[them] of crimes . . . is usually extremely difficult and sometimes is impossible, simply because the top-ranking crimi-nal has taken the utmost care to insulate himself from any apparent physical connection with the crime or with his having to commit it.
Neapolitan v. United States, 791 F.2d 489, 498 (7th Cir. 1986) (citing PERMANENT
SUBCOMMITTEE ON INVESTIGATIONS OF THE S. COMM. ON GOVERNMENT OPERATIONS, ORGANIZED CRIME AND ILLICIT TRAFFIC IN NARCOTICS, S. REP. NO. 89-72, at 2 (1965) (reported by Senator John L. McClellan, the principle sponsor of RICO)).
Whatever Congress designed RICO for, or however private litigants use it now, facilitating the conviction of upper level bosses in organized crime families was unquestionably a core concern. If you require bosses to engage in personal acts under RICO, but not under general conspiracy jurisprudence, you perversely further insulate them from conviction. Indeed, one rationale behind the organizational structure of the families of organized crime in a hierarchical structure was to separate the higher-level members from the crimes themselves to make it difficult to convict them. Another rationale included insulating the bosses from violence within the fam-ily; mere members do not associate with the high-level bosses. The low-level members and their non-member associates personally commit the crimes. Thus, as designed, the bosses do not “get their hands dirty.” See generally, DENNIS N. GRIFFIN & ANDREW
DIDONATO, SURVIVING THE MOB (2010). Construing RICO to require “dirty hands”
for the bosses, as Ruggiero, Winter, and Persico do, turns the statute’s rationale upside down.
The importance of the point requires a detailed examination of Persico’s two major sections, the fountainhead of the personal act agreement requirement in RICO conspiracy context and the requirement of a personal act within the period of limitations.
(1) In Persico, the circuit observed on the question of the running of the statute on a conspiracy count,
The government argues . . . the statute of limitations for RICO conspir-acy should not begin to run until the accomplishment or abandonment of the objectives of the conspiracy. We agree. . . . By his agreement, a RICO defendant signals his membership in a conspiracy to conduct the affairs of the charged enterprise. Thus, the RICO conspiracy statute is most closely analogous to other conspiracy statutes pursuant to which overt acts in fur-therance of the conspiracy need not be pleaded or proven. Under such stat-utes, ‘[f]or limitations purposes, the conspiracy may be deemed terminated when, in a broad sense, its objectives have either been accomplished or abandoned, not when its last overt act was committed.’ . . .
The limitations period is measured from the point at which the crime is complete. Because the RICO conspiracy statute does not require proof of an overt act, we believe that the crime of RICO conspiracy is not complete until the purposes of the conspiracy either have been accomplished or aban-doned. Although proof of a RICO conspiracy requires a demonstration that a defendant agreed to commit two or more predicate acts, rather than a simple showing that the defendant agreed to join the conspiracy, the agreement proscribed by section 1962(d) is conspiracy to participate in a charged
enter-prise’s affairs, not conspiracy to commit predicate acts. We perceive no valid reason why the RICO conspiracy statute should be analyzed in a manner inconsistent with other conspiracy statutes not requiring proof of overt acts.
Based on the foregoing, we conclude that the statute of limitations for the RICO conspiracy charges at issue here did not begin to run at least until the filing of the indictment. . . . [T]he government amply demonstrated that the conspiracy to conduct the affairs of the Colombo Family continued until, and well after, April 4, 1985, the date the superseding indictment was filed.
Persico, 832 F.2d at 713–14 (emphasis added) (citations omitted) (citing Ruggiero, 726 F.2d at 921 and a collection of cases).
On the contrary, under Salinas, each co-conspirator need not agree that he will commit personally two predicate acts; it is only necessary that he agree that someone in the conspiracy will commit two predicate acts. See United States v. To, 144 F.3d 737, 744 (11th Cir. 1998) (“ ‘[T]he focus is on the agreement to participate in the enter-prise through the pattern of racketeering activity, not on the agreement to commit the individual predicate acts.’ . . . In this case, . . . the government could prove [the defendants’] agreement to participate in either of two ways. . . . [T]he government could show an agreement on an overall objective. An agreement on an overall objec-tive may be proved ‘by circumstantial evidence showing that each defendant must necessarily have known that others were also conspiring to participate in the same enterprise through a pattern of racketeering activity.’ ”); United States v. Vaccaro, 115 F.3d 1211, 1221 (5th Cir. 1997) (“To be guilty of a RICO conspiracy, the conspirator
‘must simply agree to the objective of a violation of RICO; he need not agree person-ally to violate the statute.’ ”) (quoting United States v. Marmolejo, 89 F.3d 1185, 1196 (5th Cir. 1996)); MCM Partners, Inc. v. Andrews-Bartlett & Assocs., 62 F.3d 967, 980 (7th Cir. 1995) (“[A] defendant may conspire to violate section 1962(c) if [he]
agreed ‘to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity,’ and ‘it is only necessary that the defendant agree to the com-mission of [at least] two predicate acts on behalf of the conspiracy.’ The defendant need not have agreed to actually commit the predicate acts [himself] or even to par-ticipate in the commission of those acts so long as [he] agreed that the acts would be committed on behalf of the conspiracy.” (quoting Neapolitan, 791 F.2d at 498)). In light of these rulings, no reason appears to require a personal participation in a last predicate act, overt act, or other conduct to show that the conspiracy continued into the period of the statute. Each member of a RICO conspiracy is liable for the acts of the other members of the RICO conspiracy; personal conduct (beyond agreement to the RICO objective) is not required; vicarious liability, based on conduct of others, meets the test of the law under Salinas, 522 U.S. at 62–66.
(2) In Persico, the circuit observed on the question of the running of the statute on a substantive count:
The district court determined that the statute of limitations . . . should begin to run from the last overt act committed by any member of the group charged. . . .
. . . .
[I]n order to establish a defendant’s violation of section 1962(c), the government must prove that the defendant committed two or more predi-cate offenses, at least one of which occurred within the federal five-year stat-ute of limitations for non-capital offenses. In rejecting [the] claim that the evidence indicated only that a co-defendant had committed a timely
predi-cate act, we emphasized that there was sufficient evidence that [the defen-dant] also had committed the act. Central to our analysis was the fact that [the defendant] himself had participated in a timely predicate act. . . .
Even if we were to assume that [the case] involved single defendants, under the government’s statute of limitations analysis it would have been sufficient for us to determine whether any unindicted member of the enter-prise had committed timely predicate acts, a search that we did not under-take. Instead, we focused solely on the defendant who raised the limitations defense and determined that he had committed one predicate act within the limitations period.
Based on the reasoning of our prior decisions, we conclude that in order to satisfy the statute of limitations for section 1962(c), the government must demonstrate that a defendant committed at least one predicate racke-teering act within the limitations period. . . . Therefore, because the govern-ment failed to demonstrate that either [defendant] committed a predicate act within the five-year statute of limitations, we reverse their convictions under section 1962(c).
832 F.2d at 714 (emphasis added) (“Such a conclusion comports with the structure of section 1962, which treats conspiracies to violate RICO and substantive RICO offenses separately. The focus of section 1962(c) is on the individual patterns of racketeering engaged in by a defendant, rather than the collective activities of the members of the enterprise, which are proscribed by section 1962(d). We reject the government’s attempt to analyze section 1962(c) as if it were a second RICO conspiracy statute.”).
On the contrary, each person in a § 1962(c) charge need not commit personally two predicate acts; it is only necessary that someone involved with him in the violation commit two predicate acts. See Salinas, 522 U.S. at 62–66 (holding that no personal act required for substantive or conspiracy under RICO). If that is the law, as it is, then Persico is not the law. Moreover, this analysis does not treat §§ 1962 (c) and (d) as if each were a conspiracy provision, but properly treats each section as a continuing offense, and applies continuing offense (or tort jurisprudence) to them in their crimi-nal and civil manifestations. On “continuing offenses,” see, supra note 57.
Sadly, Perscio had an immediate and adverse impact in one of the most important criminal prosecutions ever brought under RICO. In United States v. Salerno, 868 F.2d 524, 528, 534 (2d Cir. 1989), the government brought a RICO prosecution against the organized crime commission that sat over the five families in New York City. See S.
REP. NO. 91-617, at 36–43 (1969) (identifying six of eleven individual indicted in 1984 as a focus of RICO); N.Y. TIMES, Feb. 27, 1984, at 1 (reporting on the indictment under RICO of eleven mob leaders, six of whom on commission and heads of New York City area families). Salerno’s only competition in the “most significant” category might be United States v. Schiro, 679 F.3d 521, 535 (7th Cir. 2012), which dealt with the prosecution under RICO of the “Outfit,” the lineal descendant of Al Capone’s gang.
In Schiro, the court noted: “If anyone doubted that the Chicago Outfit during its hey-day ranked as one of the most dangerous and reprehensible criminal organizations in our nation’s history, the record compiled in this case would put those uncertainties to rest.” Id. (Wood, J., dissenting). Yet, Schiro comes in a distant second to Salerno. Chi-cago, after all, is the “Second City.” In Salerno, the grand jury indicted Anthony Indelicato, a “capo” in the Bonanno crime family, for § 1962(d) (conspiracy) and
§ 1962(c) (substance) on November 19, 1985. 868 F.2d at 534. Each of his racketeer-ing acts (the simultaneous murders of Carmine Galante and two associates) occurred
in 1979. Id. In United States v. Indelicato, the Second Circuit held that the murders were part of a pattern of racketeering acts. 865 F.2d 1370, 1383–85 (2d Cir. 1989) (en banc) (“Though the murders were . . . simultaneous, they . . . constituted more than one act. . . . [T]he three murders were . . . related since . . . each was [for the]
facilitation of the desired change in leadership of the Bonanno crime family. . . . [B]oth the nature of the Commission . . . and the . . . Bonanno family, control of which the murders were designed to achieve, [showed] that there was a threat of continuing racketeering activity.” (citing G. Robert Blakey & Brian Gettings, supra note 74, at 1030 & nn.97–101 (1980))). The period of limitations was five years. See supra note 75. Following Persico, as it had to as a panel, the Salerno court held that the five years for the conspiracy ended “only when the purposes of the conspiracy have either been accomplished or abandoned.” 868 F.2d at 534. It added “withdraw[al].”
Id. at 534 n.4. On the other hand, for a substantive offense, the statute barred a prosecution “as to any defendant unless that defendant committed a predicate act within the five-year . . . period.” Id. at 534. The court reviewed the jury instructions on § 1962 (d) that required a finding that Indelicato continued as an “associate or conspirator” of the “enterprise” and that any one of the coconspirators committed a racketeering act after November 19, 1980. Id. It then upheld the verdict on the con-spiracy conviction. Id. “On the other hand, since all predicate acts committed by Indelicato occurred prior to November 19, 1980, [the court held that] Persico require[d] reversal of his conviction” for § 1962(c). Id. Had Salinas been the law then, the court would have rightly upheld the convictions. See United States v. Piz-zonia, 577 F.3d 455, 464–67 (2d Cir. 2009) (“Pizzonia held the rank of captain in the Gambino crime family. In that capacity, he sat on a special committee that sought to increase family revenues from the Gambinos’ assorted criminal activities. It is difficult to imagine evidence that could more convincingly demonstrate a defendant’s agree-ment to participate in the affairs of the charged enterprise through a pattern of con-tinuing criminal activity.”); United States v. Eppolito, 543 F.3d 25, 44–58 (2d Cir.
2008) (“The jury was entitled to view the offers [of the officers] to provide assistance to members and associates of organized crime as general and open-ended—as was alleged in the Indictment—and thus as encompassing defendants’ conduct [after retirement] in Las Vegas, which included [defendant’s] offers and attempts to laun-der the proceeds of narcotics trafficking and . . . [the former officers’] involvement in narcotics trafficking . . . to induce would-be investors to give them money for a film in whose funding members of organized crime were integrally involved. The district court’s narrow focus on the agreement of [the defendants] to provide confidential law enforcement information as the be-all and end-all of the enterprise and of the conspiratorial agreement was thus inconsistent with the allegations of the Indictment and disregarded or discounted the above evidence [in the record]. . . . Where a given partnership has offered a variety of services to a defined category of customers, it is not entitled to a ruling that as a matter of law its services do not constitute a pattern simply because the offered services were varied. Finally, as to the need to prove con-tinuity or the threat of concon-tinuity . . . ‘the threat of concon-tinuity is sufficiently estab-lished where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes.’ Plainly, the evidence described above was sufficient to permit the jury to find that . . . [the defendants] operated as part of just such an association. The fact that there was a gap of some eight years between proven racketeering acts [in New York] did not as a matter of law preclude a finding of pattern or continuity, for Congress expressly defined pattern to include two
or more acts of racketeering activity within a period (excluding any period of impris-onment) of 10 years.” (citations omitted)); Morris v. City of New York, 16 Misc. 3d 126A, 847 N.Y.Y.2d 903 (2007) (holding that notice of claim was untimely because of lack of equitable tolling where administratrix of murder victim killed by police officers); cf. United States v. Yannotti, 541 F.3d 112, 121–23 (2d Cir. 2008) (uphold-ing a post-Salinas RICO conspiracy conviction, even though the government proved organized crime family membership based on defendant’s criminal conduct outside of the limitation period, because it showed the continuation of an organized crime family and defendant’s membership into the period of the statute; the court did not recognize that Salinas eliminated the personal act rule of Persico for substantive offenses, and it obviated most of its discussion drawing distinctions between
§§ 1962(d) and (c)).
On the importance of the Commission Case and related RICO prosecutions, see supra and infra note 382. See also PERMANENT SUBCOMM. ON INVESTIGATIONS OF THE S.
COMM. ON GOVERNMENTAL AFFAIRS, Federal Government’s Use Of The RICO Statute And Other Efforts Against Organized Crime, S. REP. No. 101-407, at 31–32 (1990) (“[Depart-ment of Justice and FBI] should continue . . . their innovative and effective use of the enterprise theory of investigation, the task force approach, and the provisions of the RICO statute.”); Effectiveness of the Government’s Attack on La Cosa Nostra,Organized Crime: 25 Years after Valachi: Hearing Before the Permanent Subcommittee on Investigations of the Comm. on Governmental Affairs, 100th Cong. 505 (1988) (statement of David C. Wil-liams, Director, Office of Special Investigations, General Accounting Office), available at http://www.gao.gov/assets/110/102051.pdf (“Prior to the passage of [RICO], attacking an organized criminal group was an awkward affair. RICO facilitated the prosecution of a criminal group involved in superficially unrelated criminal ventures and enterprises connected only at the usually well-insulated upper levels of the organ-ization’s bureaucracy . . . . Before the act, the government’s efforts were necessarily piece-meal, attacking isolated segments of the organization as they engaged in single criminal acts. The leaders, when caught, were only penalized for what seemed to be
COMM. ON GOVERNMENTAL AFFAIRS, Federal Government’s Use Of The RICO Statute And Other Efforts Against Organized Crime, S. REP. No. 101-407, at 31–32 (1990) (“[Depart-ment of Justice and FBI] should continue . . . their innovative and effective use of the enterprise theory of investigation, the task force approach, and the provisions of the RICO statute.”); Effectiveness of the Government’s Attack on La Cosa Nostra,Organized Crime: 25 Years after Valachi: Hearing Before the Permanent Subcommittee on Investigations of the Comm. on Governmental Affairs, 100th Cong. 505 (1988) (statement of David C. Wil-liams, Director, Office of Special Investigations, General Accounting Office), available at http://www.gao.gov/assets/110/102051.pdf (“Prior to the passage of [RICO], attacking an organized criminal group was an awkward affair. RICO facilitated the prosecution of a criminal group involved in superficially unrelated criminal ventures and enterprises connected only at the usually well-insulated upper levels of the organ-ization’s bureaucracy . . . . Before the act, the government’s efforts were necessarily piece-meal, attacking isolated segments of the organization as they engaged in single criminal acts. The leaders, when caught, were only penalized for what seemed to be