Conversely, victims should not be so drastically affected by prosecutorial decisions which must necessarily take into account many other factors unrelated to the victim. Nor should victims suffer such consequences where a prosecution is brought, but fails because "the constable blundered," for example, by conducting an illegal search, failing to meet speedy trial rules, or by failing to serve a notice required by law, or where a conviction is obtained but an appeal is not defended or, where on a appeal a new trial is ordered, but not pursued, for reasons related to the prosecutor's

merits of the particular case.

available resources rather than the

In addition, the consequence upon the victim's civil action of the result in the criminal prosecution could severely impact upon the credibility of the victim when called upon to testify by the prosecutor. Of course an attempt can be made to impeach any victim with a pending or potential civil case based upon the advantage to the victim of a criminal conviction.

However,

where the outcome of the trial will determine whether or not the victim may recover treble damages, the jury will be forced to question the victim's credibility far more seriously.

Finally,

invitation

I would like to address the Supreme Court's Inc. V. Northwestern Bell (decided June 26, 1989) "to revisit

to

Congress in H.J.

Telephone,

U.S.

to provide clear guidelines"

RICO

as to the meaning of "pattern."

Again New York's OCCA statute may suggest a useful approach. It defines a "criminal enterprise" as:

a group of persons sharing

a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct for a pattern of criminal activity, and with a continuity of existence, structure and criminal beyond the scope of individual criminal incidents.

purpose

CPL _460.20 (3). This definition could be helpful in resolving

acts

should be sufficient to invoke liability, even when the two are part of a single criminal episode.11 However, where no criminal enterprise can be shown, and the acts alleged to constitute the pattern are either too closely connected to one another, or too distant, the continuity requirement will not be satisfied. Thus, where no criminal enterprise can be proven, it might instead be required -- as a minimum demonstration of continuity

-

that the pattern include at least three crimes within five years which are neither isolated incidents, nor So

F. 2d

11see_United States v. Indelicato, January 13, 1989); see also H.J., Inc., supra.

closely related and connected in point of time or circumstance of commission as to constitute a single episode or transaction. 12

I believe

RICO has proven to

be effective as a criminal statute and has served an important purpose in encouraging the plaintiffs' bar to augment government resources in combatting and redressing complex criminal activity. Absent a documentation

of

something, I believe, no witness before this subcommit

-- no overhaul of civil

RICO

is

tee has made or can make necessary or justified. In sum, there is little to be achieved and much to be lost by drastic change. It is the purpose of my proposals today to provide additional

protection against abuse

without significantly reducing RICO's efficacy.

12 See New York C.P.L. 460.10(4) (b).

APPENDIX A

The following list contains cases compiled from the testimony of witnesses testifying before Congressional committees. The witnesses cited the cases to exemplify the expansive and sometimes abusive application of civil RICO in various types of litigation.

I. Alleged RICO Abuse Cases Which Were Dismissed

RICO claim

Furman v. Cirrito, 828 F.2d 898, 903 (2d Cir. 1987). dismissed for failure to allege pattern, enterprise, or predicate acts.

Condict v. Condict, 826 F.2d 923 (10th Cir. 1987). RICO claim dismissed for failure to allege a pattern.

Mastercraft Indus. Inc. v. Breining, 664 F. Supp. 859 (S.D.N.Y. 1987). RICO claim dismissed for failure to allege continuing criminal enterprise.

Gordon v. Terry, 684 F.2d 736 (11th Cir. 1982), cert. denied, 459 U.S. 1203 (1983). RICO claim never formally brought. Plaintiff was not granted leave to amend complaint to include RICO claim. HMK Corp. v. Walsey, 828 F.2d 1071, 1073 (4th Cir. 1987) RICO claim dismissed because there was no evidence of a pattern. Sigmond v. Brown, 645 F. Supp. 243 (C.D. Cal. 1986), aff'd, 828 F.2d 8 (9th cir. 1987) Dismissed for failure to establish predicate acts or enterprise.

Bros v. Culvers, 650 F. Supp. 874 (D.D.C. 1987) RICO claim dismissed for failure to allege racketeering activity.

McMurty v. Brasfield, 654 F. Supp. 1222 (E.D. Va. 1987) RICO claim dismissed because removing son from state is not racketeering and the injuries alleged were personal, not injuries to business or property.

Papagrannis v. Pontikis, 108 F.R.D. 177 (N.D. Ill. 1985). RICO claim dismissed for impermissible joinder of claims.

Century Graphics Corp. v. Harris Graphics Corp., Civ. A. No. 865375 (E.D. La 1987). The plaintiff dropped the RICO claim very early.

Van Schaick v. Church of Scientology, Inc., 535 F. Supp. 1125 (D. Mass. 1982). Dismissed for plaintiff's inability to identify any specific predicate acts. The court stated that RICO is not broad enough to embrace every fraud action.

Congregation Beth Yitzhok v. Briskman, 566 F. Supp. 555 (E.D.N.Y. 1983). The plaintiffs claimed that the defendants: remained in possession of church property illegally--converting it to their own use; opened a "bogus" bank account using a similar name to that used by the plaintiffs; Embezzled money from plaintiffs' bank accounts, redepositing it in the bogus accounts; seized plaintiffs' mailing and telephone lists and solicited donations, purportedly on behalf of plaintiffs. The plaintiffs' case was dismissed without prejudice because there was a problem with the first amendment religious right to succession. Plaintiffs would have to wait for a determination on that point before pursuing the case.

Taylor v. Mondale, Civ. No. 84-3149 slip.op. (D.D.C. May 7, 1985). The court held that the form of bribery alleged was not a predicate act under RICO statute.

Lightner v. Tremont Auto Auction, No. 82 C 20090 (N.D. Ill. June 29, 1984). RICO was used to sue the FBI as a third party. The court of appeals reversed the district court and dismissed the claims because the FBI was entitled to qualified immunity.

Gearhart Indus. Inc. v. Smith Int'l Inc., 592 F. Supp. 203 (5th Cir. 1984). In this case a RICO claim was inserted, but abandoned. The RICO claim simply disappears after the preliminary hearing.

Harper v. New Japan Sec. Int'l, Inc., 545 F. Supp. 1002 (C.D. Cal. 1982). Plaintiff alleged that defendant had churned her stock. RICO claim dismissed because the injury alleged itself did not result from a violation of RICO.

Noland v. Gurley, 566 F. Supp. 210 (D. Colo. 1983). RICO claim dismissed because RICO was not intended to cover this type of activity.

Pit Pros, Inc v. Wolf, 554 F. Supp. 284 (N.D. Ill. 1983). Plaintiff alleged that defendant landlord misrepresented the zoning and covenant conditions of the property--these misrepresentations were made by mail and wire. RICO claim was dismissed quickly because plaintiff did not establish a "pattern."

Barker v. Underwriters at Lloyd's, London, 564 F. Supp. 352 (E.D. Mich. 1983). Plaintiff claimed that defendant insurer refused, without valid reason, to pay claim in order to force plaintiff to compromise their own claim. RICO was dismissed because no pattern was shown.

Adair v. Hunt, 526 F. Supp. 736 (N.D. Ill. 1981). RICO claim alleged 1300 individuals were defrauded into purchasing worthless land. Claim failed to allege a "pattern."