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MANUAL OF

MODEL CRIMINAL
JURY INSTRUCTIONS
FOR THE
DISTRICT COURTS OF THE
NINTH CIRCUIT

Prepared by the Ninth Circuit


Jury Instructions Committee
_________
2010 Edition

8.152 RACKETEERING ENTERPRISEENTERPRISE


AFFECTING INTERSTATE COMMERCEDEFINED
(18 U.S.C. 1959)
With respect to the first element in Instruction _______ [insert cross reference to
pertinent instruction, e.g., Instruction 8.151], the government must prove that an enterprise
existed that was engaged in or had an effect on interstate commerce. An enterprise is a group of
people who have associated together for a common purpose of engaging in a course of conduct
over a period of time. This group of people, in addition to having a common purpose, must have
an ongoing organization, either formal or informal. The personnel of the enterprise, however,
may change and need not be associated with the enterprise for the entire period alleged in the
indictment. This group of people does not have to be a legally recognized entity, such as a
partnership or corporation. This group may be organized for a legitimate and lawful purpose, or
it may be organized for an unlawful purpose. [The name of the organization itself is not an
element of the offense and does not have to be proved.]
Therefore, the government must prove beyond a reasonable doubt that this was a group of
people (1) associated for a common purpose of engaging in a course of conduct; (2) that the
association of these people was an ongoing formal or informal organization, and (3) the group
was engaged in or had an effect upon interstate or foreign commerce. The government need not
prove that the enterprise had any particular organizational structure.
Interstate commerce includes the movement of goods, services, money and individuals
between states. These goods can be legal or illegal. Only a minimal effect on commerce is
required and the effect need only be probable or potential, not actual. It is not necessary to prove
that the defendants own acts affected interstate commerce as long as the enterprises acts had
such effect.
Comment
Use this instruction in conjunction with Instructions 8.151 (Violent Crime in Aid of
Racketeering Enterprise), 8.153 (Racketeering ActivityDefined), and 8.154 (Racketeering
EnterpriseProof of Purpose).
Definitions of enterprise are found in 18 U.S.C. 1959(b)(2) and 1961(4). See also
United States v. Turkette, 452 U.S. 576, 583 (1981); Odom v. Microsoft Corp., 486 F.3d 541,
550-52 (9th Cir.2000); United Energy Owners Committee, Inc. v. United States Energy
Management System, Inc., 837 F.2d 356, 362 (9th Cir.1988).

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8.153 RACKETEERING ACTIVITYDEFINED


(18 U.S.C. 1959)
With respect to the second element in Instruction _______ [insert cross reference to
pertinent instruction, e.g. Instruction 8.151], the government must prove that the enterprise was
engaged in racketeering activity. Racketeering activity means the commission of certain
crimes. These include [insert applicable statutory definitions of state or federal crimes at issue
as listed in 18 U.S.C. 1961.]
The government must prove beyond a reasonable doubt that the enterprise was engaged in
[at least one of] the crime[s] named above.
Comment
Use this instruction in conjunction with Instructions 8.151 (Violent Crime in Aid of
Racketeering Enterprise), 8.152 (Racketeering EnterpriseEnterprise Affecting Interstate
CommerceDefined), and 8.154 (Racketeering EnterpriseProof of Purpose).
For a definition of racketeering activity, see 18 U.S.C. 1959(b)(1), which states that
term has the meaning set forth in 18 U.S.C. 1961(1). See also United States v. Banks, 514 F.3d
959, 968 (9th Cir.2008).

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8.154 RACKETEERING ENTERPRISEPROOF 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 defendants 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 defendants purpose in committing the alleged crime, you must
determine what [he] [she] had in mind. Since you cannot look into a persons 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), Instructions 8.152 (Racketeering EnterpriseEnterprise Affecting
Interstate CommerceDefined), and 8.153 (Racketeering ActivityDefined). 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)).
VICARs purpose element is satisfied even if the maintenance or enhancement of his
position in the criminal enterprise was not the defendants sole or principal purpose. Banks, 514
F.3d at 965. The law, however, requires a defendants 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.

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