The RICO conspiracy provision makes it a crime to conspire to violate any of the three substantive provisions of RICO set forth in 18 U.S.C. section 1962(a) (b) and (c). To establish a criminal conspiracy under RICO the government or civil RICO plaintiff must prove that the defendant knowingly agreed that a conspirator (which could include himself) would commit a violation of one of the substantive sections of RICO.
In Salinas v. United States, 522 U.S. 52, 61-66 (1997), the Supreme Court resolved a split in the circuits and held that there is no requirement that the defendant himself committed or agreed to commit the two predicate acts. Rather, the Court in Salinas stated that a conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of the substantive criminal offense. Id. at 63-65. The government or a private civil RICO plaintiff need not establish that each conspirator explicitly agreed with every other conspirator to commit the substantive offense; it is only required that the defendant know the general nature of the conspiracy and the conspiracy extends beyond his individual role.
Under the rationale of Salinas, every circuit court to address the issue has stated that a defendant may be liable for a conspiracy to violate RICO even if he is not among the class of persons who could commit the substantive RICO offense, i.e., he is not an “operator or manager.” It is sufficient that the defendant knowingly agree to facilitate a scheme that would, if completed, constitute a substantive violation of RICO involving at least one conspirator who would participate in the operation or management of the enterprise.
The RICO conspiracy provision does not require the commission of an overt act (thus it is more comprehensive than the general criminal conspiracy provision in section 371). Moreover, it is settled that conspiracy offenses may constitute predicate racketeering acts alleging conspiracy, for example a predicate act alleging a conspiracy to commit murder. This is because a RICO conspiracy is not a conspiracy to commit the alleged predicate acts; rather, a RICO conspiracy offense is a conspiracy to participate in the affairs of an enterprise through a pattern of racketeering activity.
It is sometimes more difficult to defend a RICO conspiracy claim than a substantive RICO charge or claim given the broad interpretation of the provision by the Supreme Court and the circuits.
One way to attack a RICO conspiracy conviction or finding of guilt is to argue that there is a variance of proof at trial from the charged RICO conspiracy, because the alleged pattern of racketeering activity included various sub-agreements that constitute multiple conspiracies. Courts usually reject such an argument because Congress specifically designed RICO to allow inclusion of highly diversified racketeering acts that are not directly related to each other in the same RICO count, and courts have found that a RICO conspiracy offense is broader than a conspiracy to commit any particular predicate offense.
Therefore, it is legally permissible for the government, or a private plaintiff, to allege diverse racketeering acts and sub-agreements if the government, or private plaintiff, proves that the defendant agreed to participate in the affairs of the same enterprise through a pattern of racketeering activity, and such racketeering acts relate to the same enterprise. Even where courts have found a variance between the proof and the indictment, a conviction or verdict would not be reversed unless the error affected the defendant’s “substantial” rights.