Published: September 2025

Elements 

• Predicate Acts: Unlawful predicate acts that can form the basis of a RICO charge include state felony crimes involving acts or threats of murder, kidnapping, gambling, arson, robbery, bribery, extortion, obscenity, or dealing in a controlled substance. Predicate acts also include over one hundred federal crimes, among them bribery, various forms of fraud, money laundering, embezzlement, obstruction of justice, witness tampering, and trafficking in persons.  

• Pattern of Racketeering Activity: RICO defines a “pattern of racketeering activity” as the commission of two or more predicate offenses within a ten-year period. The offenses must be related in some way, and either committed repeatedly over a substantial period of time or committed under circumstances that suggest they will continue to be committed in the future.   

• Enterprise: RICO defines “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” While the enterprise must affect interstate or foreign commerce in some way, the impact need only be minimal; travel or communication across state lines by enterprise participants can be sufficient to qualify.   

RICO Substantive Crimes: RICO establishes three substantive criminal offenses related to racketeering. The most commonly used substantive RICO offense, 18 U.S.C. §1962(c), prohibits anyone associated with an enterprise from conducting or participating in the enterprise’s affairs through a pattern of racketeering activity. RICO also prohibits establishing or operating an enterprise using the income derived from a pattern of racketeering activity (18 U.S.C. §1962(a)) and controlling an enterprise through a pattern of racketeering activity (18 U.S.C. §1962(b)).  

RICO Conspiracy: RICO’s conspiracy offense, 18 U.S.C. §1962(d), prohibits conspiring to engage in a substantive RICO offense. The crime’s sole requirement is an agreement between two or more individuals or entities to engage in conduct that would, if completed, constitute a substantive RICO offense—for instance, conducting or participating in an enterprise’s affairs through a pattern of racketeering activity. The Supreme Court held in Salinas v. United States, 522 U.S. 52 (1997) that an individual who merely agrees to “facilitate” conduct by others that would constitute a substantive RICO violation can be criminally liable under RICO’s conspiracy offense, even if the individual did not directly commit or agree to commit a predicate act.  

Penalties. RICO violations carry significant criminal penalties, including up to 20 years in prison and fines of up to $250,000 for individuals and $500,000 for organizations, in addition to the relevant sentence for any underlying predicate acts a defendant is convicted of. The government can also seize property and assets involved in a RICO violation and seek injunctive relief, including the dissolution of an enterprise that violated the Act.  

Civil Liability. RICO allows private plaintiffs to bring civil actions against individuals or organizations claiming injury to their business or property from racketeering activity, and seek treble damages as well as attorney’s fees. 

What key guardrails exist against overbroad use of RICO? 

First Amendment protections. The Supreme Court has repeatedly recognized that “guilt by association is a philosophy alien to the traditions of a free society… and the First Amendment itself.” In NAACP v. Clairborne Hardware Co., 458 U.S. 886 (1982) the Court reiterated that, even in the extreme example of someone joining an organization that aims to violently overthrow the government, the person cannot face criminal or civil liability “unless the individual joins knowing of the organization’s illegal purposes… and with the specific intention to further those purposes.” Similarly, the First Amendment protects a person engaged in expressive activity or association from liability under RICO unless they have knowledge and intent to further an endeavor that would violate the law. Speech—including unpopular or controversial speech—cannot create RICO liability in the absence of an underlying crime.  

Knowledge and intent requirements. RICO liability only extends to individuals who have some level of knowledge of and intent to engage in or facilitate unlawful activity. Charges of a substantive RICO violation under 18 U.S.C. §1962(c), for instance, require that the government establish the elements of at least two unlawful predicate acts, including their requisite mental state. For a RICO conspiracy under 18 U.S.C. §1962(d), the Supreme Court has found that liability can attach to someone who knew about and intended to facilitate an endeavor that would satisfy all of the elements of a substantive RICO violation if completed. However, the government must still establish that a defendant either agreed to commit two predicate acts, or agreed to participate in an enterprise with the knowledge and intent that others in the enterprise would commit at least two predicate acts.  

Proving existence of an “enterprise.” An individual or organization cannot commit a substantive RICO offense under 18 U.S.C. §1962(a)-(c) in the absence of an “enterprise.” In some circuits, an enterprise is also required to establish a RICO conspiracy under §1962(d); other circuits require at least an agreement to form an enterprise. The enterprise need not be a legal or formal entity, but the government or a civil plaintiff must show that it has three structural features: those associated with the enterprise must have a shared purpose, relationships with one another, and for sufficient duration to pursue their shared purpose. Moreover, the enterprise must be distinct from the “pattern of racketeering activity.” In other words, establishing that individuals have committed a pattern of unlawful predicate acts is insufficient on its own to demonstrate that they constitute an “enterprise.”    

Establishing commission of predicate acts. Individuals and organizations cannot be liable for a substantive RICO violation under 18 U.S.C. §1962(a)-(c) unless predicate acts of racketeering have occurred. In Scheidler v. National Organization for Women, Inc., the Supreme Court reversed a jury finding that antiabortion activists had engaged in a nationwide conspiracy to shut down abortion clinics through a “pattern of racketeering activity,” including extortion—a predicate act under RICO. The Court found in 2003, and again in 2006, that the antiabortion activists had not committed extortion and thus reversed the jury’s finding of a RICO violation based on that predicate act. While predicate acts need not be committed to establish a RICO conspiracy under §1962(d), the government must still show that there was an agreement that predicate acts would be committed, either by the defendant or by others.  

Conclusion 

While there are already important guardrails that can help prevent overbroad enforcement of RICO, critics have also proposed statutory reforms and judicial interventions to limit the law’s scope. These proposals include narrowing the list of predicate acts; limiting conspiracy liability; new restrictions to limit the use of civil RICO; and repealing RICO altogether and replacing it with more targeted legislation.    

Further Information 

In addition to Federal RICO, over half of U.S. states have their own anti-racketeering laws. To learn more, visit ICNL’s State Racketeering Laws in the U.S.  

FIRE, Why RICO can’t be used to punish speech (2025) 

Congressional Research Service, RICO: A Sketch (2025)   

U.S. Department of Justice, Criminal RICO: 18 U.S.C. §§1961-1968 A Manual For Federal Prosecutors (2016) 

Jenner & Block, A Guide to Civil RICO Litigation in Federal Courts (2021) 

Gerard E. Lynch, RICO: The Crime of Being a Criminal Parts 1 and II, Parts III and IV (1987) 

For more information contact Elly Page (epage@icnl.org) or Nick Robinson (nrobinson@icnl.org). Visit the U.S. program page.

This briefer was produced for informational purposes only and does not constitute legal advice or substitute for legal counsel. The briefer may also be updated over time.