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During the floor debates that followed, Senator McClellan expressly reiterated that "proof of two acts of racketeering activity, without more, does not establish a pattern." 116 Cong. Rec. 18940 (1970) (emphasis added); see also McClellan, The Organized Crime Act (S. 30) or its Critics: Which Threatens Civil Liberties, 46 Notre Dame L. Rev. 55, 144 (1970) ("commission of two or more acts of racketeering activity is made a necessary, but not a sufficient, element of a pattern under title IX") (emphasis added).'

Both the creation of the "pattern" requirement and the successful efforts to narrow it reflected Congress'

The amicus brief filed by the Trial Lawyers for Public Justice erroneously suggests that Congress actually intended civil RICO to be a blunderbuss private weapon for attacking fraud in the marketplace. See TLPJ Brief at 12-13, 18, 22-23. It quotes from Senator Hruska's statements concerning S. 1623's private remedial provisions (TLPJ Brief at 5), but neglects to mention that the bill actually reported out of the Judiciary Committee, S. 30, contained no private RICO remedy. Although Senator Hruska's approach in S. 1623 was primarily to create a new civil remedy where none existed before, S. 30 relied exclusively on public enforcement through criminal, injunctive and forfeiture proceedings. The House later added a private damage provision to RICO with little or no discussion, and the Senate accepted the amendments in a similar manner. Sec ABA Report, supra, at 116-20.

Moreover, the Senate Judiciary Committee had added the socalled "predicate acts” of mail fraud, wire fraud and fraud in the sale of securities at the behest of the Securities and Exchange Commission at a time when RICO did not provide for any private damage remedy. The SEC's concern was narrowly focused on securities manipulations by organized criminal syndicates and their trading in stolen or counterfeit securities; the Commission and its Staff, to say nothing of Congress, did not contemplate that a private remedy would allow RICO to "implicate or replace the traditional private civil damages remedies under the various securities statutes," ABA Report, supra, at 99-100 n.130, let alone to become a general weapon for combating fraud.

When S. 30 was later considered by the House of Representatives, the House tightened the threshold requirements of proving a "pattern" of criminality even further, adding a requirement that

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continuing effort to create a formulation that would attack habitual or career criminals without sweeping in other criminals, much less people who are engaged primarily in lawful and respected business and professional endeavors. Indeed, when Senator McClellan and Representative Poff, another principal sponsor of RICO, responded to objections of the American Civil Liberties Union and the Association of the Bar of the City of New York that RICO's terms went far beyond proscribing organized crime's interference with legitimate business, they argued that RICO's provisions would have, at most, "an incidental reach beyond organized crime." 116 Cong. Rec. 35344 (1970); 116 Cong. Rec. 18914 (1970); see id. ("each title in S. 30 which is justified primarily in organized crime prosecutions has been confined to such cases to the maximum degree possible"). They based that position principally on the protection afforded by the requirement of a "pattern:"

"Title IX's list [of racketeering activities] does all that can be expected. . . it lists offenses committed by organized crime with substantial frequency, as part of its commercial operations. The danger that commission of such offenses by other individuals would subject them to proceedings under title IX is even smaller than any such danger under title III of the 1968 act [listing offenses subject to courtapproved wiretapping] . . . . Unless an individual not only commits such a crime but engages in a pattern of such violations, and uses that pattern to obtain or operate an interest in an interstate business, he is not made subject to proceedings under title IX." 116 Cong. Rec. 18940 (remarks of Sen. McClellan) (emphasis added). See McClellan, supra, 46 Notre Dame L. Rev. at 144 (same).

the acts of racketeering must occur within ten years of each other. This third reformulation of the "pattern" concept was the one ultimately enacted into law. Blakey & Gettings, Racketeer Influenced and Corrupt Organizations (RICO): Basic ConceptsCriminal and Civil Remedies, 53 Temple L.Q. 1009, 1020 (1980).

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Moreover, the examples that Congress offered of the types of activity that it wished RICO to combat reaffirm that Congress intended to reach persons or organizations committed to pervasive criminality, and not aberrations in the activities of legitimate businesses and professionals."

Thus, the legislative history of RICO generally, and the origins and evolution of the "pattern" requirement specifically, demonstrate that the Court should adhere to the ordinary meaning of "pattern" as "typical" or "characteristic" behavior. Any less stringent reading would be "irreconcilably at war with the clear congressional purpose" underlying RICO's adoption. United States v. Campos-Serrano, 404 U.S. 293, 298 (1971).

C. The Rule Of Lenity Also Supports The Interpretation Of "Pattern" To Require Allegations And Proof That The Criminal Behavior Was Characteristic Or Typical

Finally, the rule of lenity also supports the courts' application in RICO cases of the ordinary meaning of "pattern" as a reliably "typical" or "characteristic" sample of the conduct. See Russello v. United States, 464 U.S. at 29. The rule of lenity counsels that terms in criminal

7 For example, Senator McClellan stated: “Organized criminals, too, have flooded the market with cheap reproductions of hit records and affixed counterfeit popular labels. They are heavily engaged in the illicit prescription drug industry." 116 Cong. Rec. 592 (1970). Similarly, the Senate Report noted how legitimate businesses were taken over and then looted in bust-out "scam" schemes involving bankruptcy fraud or insurance fraud. S. Rep. 91-617, supra, at 77. Senators Byrd and Dole spoke of how a racketeer had attempted, through arson and murder, to get A&P Tea Co. to buy mob-produced detergent that A&P had tested and rejected. 116 Cong. Rec. 607 (1970); 116 Cong. Rec. 36296 (1970).

In both Russello, 464 U.S. at 29 and Turkette, 452 U.S. at 58788 n.10, this Court recognized the applicability of the rule of lenity to RICO, but found in both cases that there was no occasion

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statutes be strictly construed. The rule is "rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited." Dunn v. United States, 442 U.S. 100, 112 (1979). In this case, adopting the primary and ordinary meaning of "pattern,' as opposed to the more nebulous definitions suggested by other courts and other litigants, would be consistent with the concern that underlies the rule of lenity, giving at least a "fair warning" when RICO's prohibitions which are criminal as well as civil-may apply. Huddleston v. United States, 415 U.S. 814, 831 (1974).

Petitioners here, among others, have argued that the Court should construe "pattern" as broadly as possible because of RICO's so-called "liberal construction clause," which states that RICO should be "liberally construed to effectuate its remedial purposes." Pub. L. 91-452, § 904 (a), 84 Stat. 947. The "pattern" requirement, however, is not a remedial provision at all; it is, instead, an essential element of any RICO violation-whether civil or criminal. See S. Rep. 91-617, supra, at 81. As this Court already cautioned in Sedima, the liberal construction clause does not displace the rule of lenity and thus does not justify broad interpretations of the substantive provisions of RICO that apply in both civil and criminal proceedings: "The strict- and liberal-construction principles are not mutually exclusive; § 1961 and § 1962 can be strictly construed without adopting that approach to 1964 (c)." 473 U.S. at 492 n.10.

In Sedima, the issue was who may bring a civil suit under Section 1964 (c), and thus the "liberal construc

to apply the rule to the statutory terms at issue because they were unambiguous. Here, by contrast, the term "pattern" does not unambiguously support broader interpretations than the one this brief offers, and therefore the rule of lenity provides further counsel against adoption of those broader and more vague interpretations.

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tion" of RICO's remedial provisions applied. Here, in contrast, the issue is the meaning of the "pattern" element of criminal (and civil) liability established in Sections 1961 and 1962; thus, in this case, the operative principle is the rule of lenity's "strict construction."

II. THE CONTEXT IN WHICH THE “PATTERN” ELEMENT ARISES VARIES WITHIN RICO, AND ITS APPLICATION TO IDENTIFY CONDUCT THAT CHARACTERIZES HABITUAL CRIMINALITY MUST VARY DEPENDING ON THE RICO SUBSECTION AT ISSUE.

This Court recognized in Sedima that there are two critical facets in determining whether a number of acts of "racketeering activity" adequately make up a "pattern" of criminality: "continuity plus relationship." Sedima, 473 U.S. at 496 n.14. As this Court also noted in Russello, however, the meaning of a term can depend upon the context and structure of the statute in which it is used. Russello, 464 U.S. at 22-23; see also Sedima, 473 U.S. at 489; Turkette, 452 U.S. at 580-81. Thus, while "pattern" requires a showing of a "reliable sample" of acts that fairly "characterize" the relevant conduct as habitually criminal, the application of that requirement will vary depending on the particular subsection of Section 1962 that the prosecution or plaintiff invokes. See Comment, The Pattern Element of RICO Before and After Sedima: A Look at Both Federal and Florida RICO, 15 Fla. St. U.L. Rev. 321, 349 (1987) ("courts should consider pattern in terms of the particular section of RICO at issue. Arguably, this is precisely the meaning Congress intended when it chose not to be explicit about 'pattern'").

There appears to be general agreement here that the "pattern" requirement would apply differently under the different subsections of Section 1962. See, e.g., Brief of Petitioners at 33; State Attorneys General Brief at 15.