part of the defendant's relationship with the enterprise (in cases arising under Sections 1962 (a) or (b) of RICO) or of the conduct of the affairs of the enterprise (in Section 1962 (c) cases).

III. The other interpretations offered by the courts, the parties, and the amici fall short of carrying forth the plain meaning of "pattern" and its purpose in the RICO statute. The so-called "multiple transactions" tests create nebulous standards that, as a practical matter in the modern economic world, add little to the express threshold statutory requirement that there be at least two "racketeering acts" within ten years. The test proffered by the Solicitor General similarly fails to provide a clear and coherent standard that would apply across the board to all types of RICO cases in a manner that carries forth RICO's meaning and purpose.

IV. In contrast, the test we outline provides an articulable standard that is capable of being "applied in practice" and "explained to a jury;" indeed, we provide a proposed jury instruction. Moreover, it is consistent with the plain meaning, legislative purpose, and context within RICO of the "pattern" requirement. Applying the proposed test, this Court should affirm the judgment below, because the Petitioners failed in their complaint to allege directly or by inference that the alleged "racketeering activity" represented a substantial portion of the relevant conduct under each of the RICO counts.

INTRODUCTION: A PROPOSED JURY INSTRUCTION ON THE "PATTERN" ELEMENT As this Court recognized in Sedima, civil "RICO is evolving into something quite different from the original conception of its enactors" because private civil RICO suits are being brought "almost solely" against respected and legitimate businessmen and women rather than against the intended target of RICO-members of or

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ganized crime. 473 U.S. at 499-500. One of the principal reasons for this "evolution" is "the failure of Congress and the courts to develop a meaningful concept of 'pattern'" as set forth in 18 U.S.C. § 1961 (5). Id. at 500. Indeed, Congress crafted the "pattern" requirement as one of the critical elements intended to focus RICO's application on organized crime figures and similar habitual criminals. Through the "pattern" requirement, Congress established a standard for determining if the course of criminal conduct at issue evinces a sample of traits, acts and other observable factors that fairly and reliably "characterize" the accused or the enterprise as corruptly involved in habitual criminal activity.

For the reasons explained below, the proper analysis of the "pattern" requirement-one that is capable of being "appl[ied] in practice" and "explain[ed] to a jury," id. at 494-95 n.12-is the following:

To establish a "pattern of racketeering activity," it must be shown:

(1) That at least two of the acts of racketeering activity were related-

to each other in generating the proceeds for investment in the enterprise [claims under Section 1962 (a)], or

to each other in acquiring or maintaining an interest in, or control of, the enterprise [claims under Section 1962 (b)], or

to conducting the affairs of the enterprise [claims under Section 1962 (c)]; and

(2) That the acts of racketeering activity demonstrated a continuing course of significant criminal behavior, because—

(a) the defendant engaged in at least two of the acts at substantially different times as part of distinct criminal episodes or transactions, and

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(b) the acts of racketeering activity constituted a substantial portion of the activity by which

the defendant generated the proceeds for investment in the enterprise [claims under Section 1962 (a)], or

the defendant acquired or maintained an interest in, or control of, the enterprise [claims under Section 1962 (b)],

or

the affairs of the enterprise were conducted [claims under Section 1962 (c)].

ARGUMENT

I. RICO'S "PATTERN" ELEMENT REQUIRES ALLEGATIONS AND PROOF THAT "RACKETEERING ACTIVITY" WAS TYPICAL OR CHARACTERISTIC OF THE CONDUCT OF THE ALLEGEDLY CORRUPT PERSON OR ENTERPRISE.

As this Court recognized in Sedima, Congress declined to define the phrase "pattern of racketeering activity." 473 U.S. at 496 n.14. When a term is "not specifically defined in the RICO statute," the Court should "start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.'" Russello, 464 U.S. at 21 (quoting Richards v. United States, 369 U.S. 1, 9 (1962)). Among the factors used to test this assumption are the evolution of the term during the legislative drafting process, the legislative history of the statute, and the effect, if any, of the rule of lenity. Id. at 23-28.

All of these factors support the conclusion that RICO's "pattern" element requires a showing that the "racketeering activity" engaged in was sufficient to characterize the relevant activity as habitual or career criminality.

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A. The Plain Meaning Of "Pattern" Is That The Sample Of Actions Is "Typical" Or "Characteristic"

The term "pattern" is generally defined as a "reliable sample of traits, acts or other observable features characterizing an individual." Black's Law Dictionary 1015 (5th ed. 1979) (emphasis added); see Webster's Third New International Dictionary 1657 (unabridged 1971) (same). Likewise, "pattern" has been defined as "something representing a class or type . . . a regular, mainly unvarying way of acting or doing." Webster's New World Dictionary 1042 (Second College ed. 1980) (emphasis added). The Oxford English Dictionary's very first definition of "pattern" speaks of "the archetype; . . . an exemplar." Oxford English Dictionary 565 (1933). Other definitions include "anything fashioned . . . to serve as a model," "a likeness, similitude," "a part shown as a sample of the rest," an "example, an instance; esp. a typical, model, or representative instance, a signal example." Id. (emphasis added).2

In each of the definitions, a single theme dominates: "pattern" means actions that "characterize" or "typify" a person's conduct. Thus, as one circuit aptly concluded, the "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." Lipin Enterprises Inc. v. Lee, 803 F.2d 322, 324 (7th Cir. 1986).

2 'The one amicus brief that actually turned to the dictionary in search of the plain meaning of "pattern" ignored all of these preceding meanings and then selected out of context the word "design" from the following eighth definition: "A decorative or artistic design, as for china, carpets, wall-papers, etc." See Brief for Amici Curiae In Support of Respondent [sic] [“State Attorneys General Brief"] at 10 & n.16 (citing to Oxford English Dictionary at 566).

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B. RICO's Legislative History Also Supports Interpreting The "Pattern" Element To Require A Showing That The "Racketeering Activity" Was Typical Or Characteristic Of The Conduct Of The Allegedly Corrupt Person Or Enterprise

1. Congress Intended to Protect Legitimate Businesses from Professional Criminals Without Attempting to Outlaw Directly Membership in Organized Criminal Associations

Congress enacted RICO as Title IX of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922 (1970). Congress' declared purpose in passing the Act was "to seek the eradication of organized crime in the United States" through a variety of new penal provisions, investigatory tools, and remedies. Id. at 923. Congress' specific goal in forging the RICO title was to address the problem of infiltration of legitimate business by professional criminals. United States v. Turkette, 452 U.S. 576, 591 & n.13 (1981). Thus, Congress intended

"that RICO be used against racketeers, individuals who earn their livelihood through the repetitive and continuous commission of criminal acts. The statute, properly read, is not a 'catch-all', but is instead a powerful tool to be used against racketeers and organized crime." Gatoil (U.S.A.), Inc. v. Forest Hill State Bank, 822 F.2d 55 (4th Cir. 1987) (unpublished opinion reported in 6 RICO L. Rptr. 316, 321). See also International Data Bank, Ltd. v. Zepkin, 812 F.2d 149, 155 (4th Cir. 1987) ("Congress' intent [was] that RICO serve as a weapon against ongoing unlawful activities whose scope and persistence pose a special threat to social well-being").

The Organized Crime Control Act generally, and RICO specifically, were the culmination of almost two decades of intense study on how to dislodge organized crime from this nation's economic and social fabric. See generally Bradley, Reteers, Congress and the Courts: An Analy