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The courts of appeals have generally recognized that a single criminal episode or objective, even though carried out through a number of illegal acts, fails the pattern requirement as a matter of law. See, e.g., Roeder v. Alpha Industries, Inc., 814 F.2d 22 (1st Cir. 1987); Eastern Pub. & Adv. v. Chesapeake Pub. & Adv., 831 F.2d 488 (4th Cir. 1987); Medical Emer. Serv. Assoc. v. Foulke, 844 F.2d 391 (7th Cir. 1988); Garbade v. Great Divide Min. & Mill. Corp., 831 F.2d 212 (10th Cir. 1987). Accordingly, the racketeering acts, "[i]n order to be sufficiently continuous to constitute a pattern of racketeering activity, must be ongoing over an identified period of time so that they can fairly be viewed as constituting separate transactions." Morgan v. Bank of Waukegan, 804 F.2d at 975.

This element of the pattern standard serves the important purpose of excluding essentially one-shot offenses, "limited in occurrence, in scope, and in purpose, that have been the traditional subjects of state tort law [and] were not intended to be swept into RICO's reach by Congress" (Eastern Pub. & Adv., 831 F.2d at 492).' For example, the distribution of a fraudulent prospectus in separate mailings to different investors does not constitute a pattern of racketeering activity. See International Data Bank, Ltd. v. Zepkin, 812 F.2d 149 (4th Cir. 1987). Likewise, a series of letters or telephone calls in the course of a single fraudulent endeavor is not a pattern. See Condict v. Condict, 826 F.2d 923, 927-929 (10th Cir. 1987). And the payment of a bribe, even if made in separate installments that amount to multiple offenses under the criminal code, does not establish a pattern. See Roeder, 814 F.2d at 30-31.

1 Nearly 30% of the civil RICO cases decided in 1986 involved allegations of racketeering activity limited to a single episode. See Blakey & Cessar, Equitable Relief Under Civil RICO: Reflections on Religious Technology Center v. Wollersheim: Will Civil RICO Be Effective Only Against White-Collar Crime?, 62 Notre Dame L. Rev. 526, 619 (1987).

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In applying this standard, the courts have "realize[d] that skilled attorneys may artfully plead their civil RICO case" to contrive separate criminal episodes or transactions "so as to prevail over a defendant's motion to dismiss." Jones v. Lampe, 845 F.2d 755, 757 (7th Cir 1988). This is especially true for racketeering acts involving fraud, since "any "scheme" to defraud can be broken down into its component acts'" (id. at 758). Thus. "the existence of a multiplicity of predicate acts *

[of fraud] may be no indication of the requisite continuity of the underlying fraudulent activity." Elliott v. Chicago Motor Club Ins., 809 F.2d 347, 350 (7th Cir. 1987). See also, e.g., Walk v. Baltimore & Ohio R.R., No. 87-3585 (4th Cir. May 31, 1988), slip op. 13-14 (“[v]irtually every action taken by a corporation is subject to challenge as either mail or securities fraud"); Flip Mortg. Corp., 841 F.2d at 538 ("a great many ordinary business disputes ⚫ could be described as multiple individual instances of fraud"); International Data Bank. 812 F.2d at 154-155 ("[i]t will be the unusual fraud that does not enlist the mails and wires in its service at least twice"); Morgan v. Bank of Waukegan, 804 F.2d at 976 ("[t]he existence of multiple predicate acts [of fraud] is only because the acquisition of stock in this context is a complicated transaction that requires many separate statements from a variety of persons").

To avoid this problem of artful pleading and artificially constructed episodes, it is the responsibility "of the district court to carefully scrutinize the allegations con tained in the complaint to determine whether they state a claim" (Jones v. Lampe, 845 F.2d at 757). Although the court ordinarily accepts the plaintiff's factual allegations as true, "it need not close its eyes to the content of these allegations," and "conclusory allegations" and "label[s]" concerning multiple schemes are not controlling (id. at 757, 758). Instead, the plaintiff's "charac terization of events must be consistent with the factalleged in the complaint" (id. at 758). See also, c.g.. Manar v. McNamara, 842 F.2d 808, 811 (5th Cir. 1988

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("plaintiffs in RICO claims 'must plead specific facts, not mere conclusory allegations' ").

In sum, the requirement of separate criminal episodes or transactions, rigorously applied to screen out inappropriate RICO claims, represents an important element of the pattern definition. But while that requirement is a necessary part of the concept of "pattern," it is not a sufficient and complete standard by itself. Rather, the proper definition of "pattern" must contain an additional element: typicality.

C. The Pattern Standard Requires That The Racketeering Acts Be Typical And Characteristic Of The Defendant's Activities

In addition to separate criminal episodes or transactions, the pattern element requires that the alleged racketeering activity must constitute a typical and characteristic course of the defendant's conduct. This requirement is supported by the plain language of RICO and the commonly understood meaning of "pattern," as well as by the legislative history and purposes of the statute. Under this interpretation, the predicate acts of racketeering constitute a pattern only if they are typical and characteristic of the way in which the defendant conducts his activities.

1. The Plain Meaning Of "Pattern" Requires Typical And Characteristic Conduct

Where a term "is not specifically defined in the RICO statute," the Court must assume "that the legislative purpose is expressed by the ordinary meaning of the words used.'" Russello v. United States, 464 U.S. 16, 21 (1983). See also Organized Crime Control: Hearings on S. 30, and Related Proposals, Before Subcomm. No. 5 of the House Comm. on the Judiciary, 91st Cong., 2d Sess. 665 (1970) ("1970 House Hearings") (statement of Ronald L. Gainer, United States Department of Justice) (the bill "says 'pattern,' and pattern has to be construed with its normal meaning"). The ordinary meaning of

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"pattern" unmistakably denotes the idea of typical and characteristic conduct.

This central feature of "pattern" has been expressed in a number of ways. For example, "pattern" is defined as "a representative instance" or "a typical example.' Webster's Third New International Dictionary 1657 (unabridged 1971). See also, e.g., VII Oxford English Dictionary 565 (1970) ("a typical, model, or representative instance"). Similarly, "pattern" means "a reliable sample of traits, acts, or other observable features characterizing an individual." Webster's Third New International Dictionary 1657 (unabridged 1971); Black's Law Dictionary 1015 (5th ed. 1979). "Pattern" also refers to “a regular, mainly unvarying way of acting or doing." Webster's New World Dictionary 1042 (2d college ed. 1980). And more generally, "pattern" is a "habit," "custom," "practice," or "characteristic." Roget's International Thesaurus ¶ 642.4 at 494 (4th ed. 1977).

These definitions of "pattern" all point to the same conclusion: predicate acts of racketeering, to constitute a pattern, must represent a "typical" and "characteristic" form of the defendant's behavior.

2. The Legislative History Demonstrates That RICO Is Directed Against Habitual Criminal Conduct By Professional Criminals

This interpretation of "pattern," requiring a typical and characteristic course of conduct, is reinforced by the legislative history and purposes of RICO. In enacting the special (and especially severe) provisions of RICO, Congress aimed the statute at organized and habitual criminal conduct committed by professional or career criminals for whom crime is a way of life. Properly under stood, RICO was not intended to sweep in legitimate busi nessmen who may be alleged to have committed two pred icate offenses in the course of their otherwise legitimat activities.

The lengthy history of RICO is already familiar to thi Court. See, e.g., Sedima, 473 U.S. at 486-488; id. at 510

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The

519 (Marshall, J., dissenting). As the Court explained in Russello, the focus of RICO was organized crime. "The legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots. goal was to remove the profit from organized crime by separating the racketeer from his dishonest gains" (464 U.S. at 26, 28). RICO was not intended to supersede the arsenal of criminal and civil remedies provided under state and federal law for ordinary instances of unlawful activity; rather, it was directed against the special problem that had proven insoluble under existing laws and thus gave rise to the need for this new statute: the eradication of organized crime.

In early versions of the bills leading to RICO, Congress sought expressly to define and prohibit “organized crime." For example, in 1967, Senator McClellan, a principal sponsor of RICO, introduced a bill to "outlaw the Mafia and other organized crime syndicates." The bill made it a crime to be a member of "the Mafia” or “any other organization" having as one of its purposes the violation of the criminal laws "relating to gambling, extortion, blackmail, narcotics, prostitution, or laborracketeering." S. 678, 90th Cong., 1st Sess. (1967).

Although this approach corresponded exactly with Congress's intent to attack organized crime, Congress became concerned that such a statutory offense might be an unconstitutional status crime. See, e.g., 116 Cong. Rec. 35344 (1970) (remarks of Rep. Poff); id. at 35343 (remarks of Rep. Celler). Accordingly, Congress abandoned that approach in favor of the formulation, based on the concept of "a pattern of racketeering activity," that ultimately was embodied in RICO.

In redrafting RICO in this manner to allay constitutional concerns, Congress never shifted its focus from organized crime as the target of the statute. The purpose of RICO (and the other provisions of the Organized Crime Control Act of 1970) is clearly indicated in the