Clarifying a “Pattern” of Confusion: A Multi-Factor Approach to Civil RICO’s Pattern Requirement

In an attempt to provide some needed definitional clarity and redirect civil RICO toward its intended focus, this Note argues that the federal judiciary should interpret the pattern requirement narrowly, focusing on four basic factors that best demonstrate a prolonged, continuing example of criminal activity. By emphasizing (1) the presence of multiple victims, (2) the duration of the RICO defendant’s criminal activity, (3) the number of illicit commercial transactions, and (4) the existence of independent criminal decisions, courts could consistently limit civil RICO to the most pernicious offenders. Part I of this Note will examine judicial interpretations of RICO and the current problems plaguing the application of the pattern requirement. Part II will analyze several techniques of statutory construction and will argue that while the operative pattern provision may be somewhat ambiguous, it can certainly support a narrow construction. Part III will examine the two primary justifications for interpreting the pattern requirement narrowly and will show that the original legislative command that RICO apply only to defendants engaged in repetitive and continuous criminal behavior has been ignored. Part IV identifies the goals for an optimal definition of pattern and examines the four factors necessary to limit civil RICO to repeat offenders. This section will also discuss two recent cases, including the one currently before the Supreme Court, and will illustrate how these factors should be applied by the courts. Finally, Part V will briefly discuss the broader question of how to amend civil RICO permanently and will analyze and critique the congressional proposals currently pending.