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congressional statement of findings and purpose: "It is the purpose of this Act to seek the eradication of organized crime in the United States by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." See Russello, 464 U.S. at 27. The legislative history of RICO is replete with similar statements, which manifest Congress's understanding that the statute was directed against organized crime. See, e.g., S. Rep. No. 617 at 76; 116 Cong. Rec. at 18939, 18940 (remarks of Sen. McClellan); id. at 35196 (remarks of Rep. Celler); id. at 35200 (remarks of Rep. St Germain); id. at 35344 (remarks of Rep. Poff); id. at 35347 (remarks of Rep. Steiger).

At no point in the legislative process did Congress indicate an intention drastically to expand the original scope of RICO to encompass legitimate businessmen and ordinary commercial disputes. In particular, the civil RICO provisions received very little attention in Congress, and the debates nowhere suggest that RICO would routinely be applicable to legitimate corporations and corporate officials having no connection with organized crime; on the contrary, the sponsor of the civil RICO section explained that the provision would afford a remedy to "the victims of organized crime" (116 Cong. Rec. at 35346 (remarks of Rep. Steiger)) and "those who have been wronged by organized crime" (1970 House Hearings, supra, at 520 (statement of Rep. Steiger)). See also 116 Cong. Rec. at 35228 (remarks of Rep. Steiger) (civil RICO provides "a powerful weapon against organized crime"); id. at 35295 (remarks of Rep. Poff) (civil RICO is a remedy "for use against organized criminality"). Moreover, the addition of wire fraud, mail fraud,

2 In enacting civil RICO, Congress appreciated the problems posed by private parties suing organized crime figures for money damages. Representative Steiger noted "the very difficult position in which a citizen who sues under [civil RICO] will place himself. He may be one individual suing an arm of La Cosa Nostra, and the subject of his lawsuit may be its corrupt involvement in a major industry. He will need *** courage * [to be a plaintiff)" (116

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and securities fraud as predicate acts of racketeering— which is largely responsible for the widespread abuse of civil RICO today-was made at the behest of the Securities and Exchange Commission simply to ensure that RICO covered all of the types of offenses that organized crime commonly commits, and in fact that amendment occurred at a time when the statute did not contain a private civil remedy at all. See Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporation, Banking and Business Law 98-100 & n.130 (1985).

Of course, Congress's revision of the statutory scheme did have the indirect consequence of broadening the reach of RICO beyond the Mafia. But that extension did not signify a radical shift in the thrust of the statute, and it does not suggest that Congress meant to subject legitimate corporations and businessmen to the severe sanetions and stigma of RICO. Thus, as summarized by Senator McClellan, the RICO statute that Congress adopted, like the other titles in the Organized Crime Control Act, "is justified primarily in organized crime prosecutions" and "has been confined to such cases to the maximum degree possible" (116 Cong. Rec. at 18914). Congress well understood that RICO's "provisions [are] primarily intended to affect organized crime" and any "reach beyond organized crime" would be at most "incidental." Ibid. (remarks of Sen. McClellan); see also id. at 35344 (remarks of Rep. Poff).

The pattern requirement is of critical importance in preventing the expansion of RICO beyond this intended sphere. See S. Rep. No. 617 at 158 ("[t]he concept of 'pattern' is essential to the operation of the statute"). In particular, Senator McClellan recognized the "danger” that the "commission of [predicate] offenses by other individuals" than organized crime figures "would subject

Cong. Rec. at 35227). Even though Representative Steiger recognized that many potential plaintiffs would not "wish to take advantage of such a remedy" (1970 House Hearings, supra, at 520), he intended that civil RICO afford them the "option" (116 Cong. Rec. at 35347).

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them to proceedings under" RICO. As he noted, “[i]t is impossible to draw an effective statute which reaches most of the commercial activities of organized crime, yet does not include offenses commonly committed by persons outside organized crime as well." Senator McClellan concluded that the danger of such misuse was "small[]," however, because of the pattern element: "[u]nless an individual not only commits such a crime but engages in a pattern of such violations, he is not made subject to proceedings under [RICO]." 116 Cong. Rec. at 18940. Thus, it is the concept of "pattern" that Congress understood would limit RICO to career criminals and guard against the "danger" that the statute would be invoked against others who commit predicate offenses.3

Consistent with this legislative history, Justice Powell, in a passage in his dissent in Sedima that the majority did not dispute, correctly summarized the RICO scheme:

"The 'pattern' element of the statute was designed to limit its application to planned, ongoing, continuing crime. [Congress intended] to keep the reach of RICO focused directly on traditional organized

The dissent to the House Report, which was briefly discussed in Sedima (473 U.S. at 487, 498), does not indicate that civil RICO was intended to be applied to legitimate businesses. These opponents of the bill recognized that the target of RICO was organized crime, but they expressed concern that, through "poor draftsmanship," the statute might be invoked to "harass" businessmen who commit two predicate offenses. H.R. Rep. No. 1549, 91st Cong., 2d Sess. 185, 187 (1970) (dissenting views). The opponents did not state that these private damages suits would be permissible under RICO, but only that “disgruntled and malicious” plaintiffs might attempt to file such actions to destroy "innocent businessmen" through "adverse publicity" and "protracted, expensive" litigation (id. at 187). More important, the dissenting Report was based on the clearly incorrect understanding that any two predicate offenses are sufficient to constitute a pattern. Especially because this mistaken interprelation was contradicted by other portions of the legislative history, the views of RICO's opponents do not provide a reliable indicator of the meaning of the statute. See, e.g., National Woodwork Manufacturers v. NLRB, 386 U.S. 612, 639-640 (1967); NLRB v. Fruit & Vegetable Packers, 377 U.S. 58, 66 (1964).

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crime and comparable ongoing criminal activities carried out in a structured, organized environment. The reach of the statute beyond traditional mobster and racketeer activity and comparable ongoing structured criminal enterprises, was intended to be incidental, and only to the extent necessary to maintain the constitutionality of a statute aimed primarily at organized crime."

473 U.S. at 526, quoting ABA Report at 71-72. Lower courts and commentators have likewise recognized that the pattern element was intended to limit RICO to members of organized crime and other professional criminals for whom repeated criminality represents a typical and characteristic course of conduct. See, e.g., Lipin Enterprises Inc. v. Lee, 803 F.2d 322, 324 (7th Cir. 1986) ("[t]he pattern requirement was intended to limit RICO to those cases in which racketeering acts are committed in a manner characterizing the defendant as a person who regularly commits such crimes"); International Data Bank, 812 F.2d at 155 (quoting Lipin Enterprises); Papai v. Cremosnik, 635 F. Supp. 1402, 1412 (N.D. Ill. 1986) ("RICO's purposes are best served by quiring that * ⚫ the pattern made up of multiple episodes must be a regular part of the way a defendant does business"); Howard, Moving to Dismiss a Civil RICO Action, 35 Clev. St. L. Rev. 423, 432, 435 (1987) (Pattern requires that the predicate acts be "representative of the defendant's normal and ongoing course of conduct. In sum, plaintiff must plead that defendant is an habitual criminal")."

re

To the extent the Court believes the definition of "pattern" is ambiguous notwithstanding the plain language and history of RICO, the rule of lenity provides additional support for our proposed definition. See, e.g., FCC v. American Broadcasting Co., 347 U.S. 284, 296 (1954) (a statute that has both criminal and civil provisions must be interpreted in light of "the well-established principle that penal statutes are to be construed strictly"). The various pattern standards advanced by petitioners and their amici, and by the courts of appeals other than the Eighth Circuit, represent broad and amorphous tests that unduly expand the reach of

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3. Predicate Acts Of Racketeering Constitute A Pat-
tern Only If They Are Typical And Characteristic

Of The Way In Which The Defendant Conducts His
Activities

As we have shown, the term "pattern" should be construed to require that the predicate acts of racketeering constitute a typical and characteristic course of criminal conduct. But that formulation does not answer the question of what must be typified: to what are the predicate acts to be compared in order to determine whether they are typical and characteristic? In our view, the pattern element focuses on the conduct of the defendant and serves to demarcate the category of people who are the intended target of RICO: professional or habitual criminals who engage in racketeering crimes as a regular course of conduct. Under this standard, predicate acts of racketeering constitute a pattern only if they are typical and characteristic of the way in which the defendant conducts his activities.

This interpretation is supported by three overriding considerations. First, it gives the same meaning to the term "pattern" in each of the provisions of Section 1962,

RICO and fail to give adequate notice of the prohibition and sanctions to which the defendant is subject (i.e., that particular conduct is a RICO violation and not simply a series of predicate offenses). Application of the rule of lenity is not barred by the "liberal construction" clause in RICO, which provides that "[t]he provisions of this title shall be liberally construed to effectuate its remedial purposes.' Pub. L. No. 91-452, § 904 (a), 84 Stat. 947, 18 U.S.C. § 1961 note. As discussed above, the "purposes" of the statute were to strike at organized crime and professional career criminals; an expansive definition of "pattern" that brings legitimate businessmen and garden-variety commercial disputes within the statute is hardly necessary to effectuate those purposes. The Court in Sedima recognized that “[t]he strict- and liberal-construction principles are not mutually exclusive"; the definitional and substantive provisions in Sections 1961 and 1962, which apply to both criminal and civil actions, "can be strictly construed without adopting that approach" in interpreting the private damages remedy in Section 1964 (c), "where RICO's remedial purposes are most evident" (473 U.S. at 492 n.10).