(N.J.S.A. 2C:41-2a) model jury charge
Count____________ of the indictment
charges defendant with racketeering.
[READ
COUNT OF INDICTMENT]
That section of our statutes provides in
pertinent part:
It is unlawful for any person who has
received any income derived, directly or indirectly, [from a pattern of
racketeering activity] [through collection of an unlawful debt in which he has
participated as a principal]. . . to use or invest, directly or indirectly, any
part of the income, or the proceeds of the income, in acquisition of any
interest in, or the establishment or operation of any enterprise which is
engaged in or the activities of which affect trade or commerce.
In order to convict defendant of the
charge, the State must prove the following elements beyond a reasonable doubt:
1. That
defendant received income derived directly or indirectly from a pattern of
racketeering activity.
OR
1. That
defendant received income derived directly or indirectly through collection of
an unlawful debt in which he/she
participated as a principal.
2. That
defendant [used] [invested] directly or indirectly any part of the [income]
[proceeds from the income] to [acquire any interest in] [establish] [operate]
an enterprise.
3. That
the enterprise was engaged in trade or commerce or that its activities affected
trade or commerce.
4. That
defendant acted purposely or knowingly.
The first element that the State must
prove beyond a reasonable doubt is that defendant received income derived
directly or indirectly from a pattern of racketeering activity. Income is defined as money or other gain
received by an individual or corporation for, among other things, labor, for
services, from property, from investment or from operations.[2] A pattern of racketeering requires the State
to prove beyond a reasonable doubt (1) that defendant engaged in at least two
incidents of racketeering conduct, one of which must have occurred after June
5, 1981, and the last of which must have occurred within 10 years of a prior
incident of racketeering activity,[3]
and (2) that the incidents of racketeering activity embrace criminal conduct
that has either the same or similar purposes, results, participants or victims
or methods of commission or are otherwise interrelated by distinguishing
characteristics and are not isolated incidents.
The concept of pattern of racketeering
activity is not designed to punish mere repeated offenses. To be a pattern, there must be more than a
string of two or more similarly-committed crimes. There must be some degree of relatedness, of
continuity or threat of continuity. You
should use a totality of the circumstances approach, considering factors such
as the number of unlawful acts, the length of time over which the acts were
committed, the similarity of the acts, the number of victims, the number of
perpetrators and the character of the unlawful activity in determining whether
a pattern existed. There may be
incidents that occur sequentially over time.
This criminal activity must encompass incidents of criminal conduct that
are not disconnected or isolated.
Incidents of racketeering that occur sequentially, to overcome any
inference that they are totally disconnected or isolated, must exhibit some
temporal connection or continuity over time.[4]
In this case, the State alleges that the
incidents of racketeering activity were ______________[Charge elements of
substantive crimes or, if already charged, remind jurors of those definitions].[5] The State must prove beyond a reasonable
doubt that defendant committed [at least two of] these crimes and that the
crimes he/she
committed were a continuing series of crimes that constitute a pattern of
racketeering. You must unanimously agree
about the crimes defendant committed.
OR
The first element that the State must
prove beyond a reasonable doubt is that defendant received income derived,
directly or directly, through his/her personal collection of an unlawful debt.[6] Income is defined as money or other gain
received by an individual or corporation for, among other things, labor, for
services, from property, from investment or from operations.[7] Unlawful debt means a debt which was incurred
or contracted in gambling activity which was in violation of the law of the
United States, a state or political subdivision or which is unenforceable under
state or federal law in whole or in part as to principal or interest because of
the laws relating to usury.[8]
In this case, the State alleges that the
defendant ___________ (set forth allegations of collection of unlawful debt).
The second element that the State must
prove beyond a reasonable doubt is that defendant [used] [invested], directly
or indirectly, [any part of the income] [proceeds from the income] [to acquire
any interest in] [to establish] [to operate] an enterprise.
The term enterprise means any individual,
sole proprietorship, partnership, corporation, association, or other entity or
group of individuals associated in fact although not a legal entity.[9]
It includes illicit as well as
licit enterprises and governmental as well as other entities.
There does not need to be a distinct,
ascertainable structure to constitute an enterprise. Rather, the term embodies any group of
persons associated in fact and includes traditional organized crime groups,
with internal command systems or structures, as well less organized and
non-traditional criminal groups. While
the term is broad, it targets only organized crime type activities that are
substantial in nature.[10]
The enterprise must have an organization,
the hallmark of which consists in the kinds of interactions that become
necessary when a group, to accomplish its goal(s), divides among its members
tasks that are necessary to achieve a common purpose. The division of labor and the separation of
functions undertaken by the participants serve as the distinguishing marks of
the enterprise because when a group divides and assembles its labors in order
to accomplish its criminal purposes, it must necessarily engage in a high
degree of planning, cooperation and coordination, and, in effect, constitute
itself as an organization.[11]
Evidence of an ascertainable structure
will support an inference that the group engaged in carefully planned or highly
coordinated criminal activity and thus, will support the conclusion that an
enterprise existed. But apart from an
organization’s structure, the focus of the evidence must be on the number of
people involved, their knowledge of the objectives of the association, how they
associated with each other, whether they each performed discrete roles in
carrying out the scheme, the level of planning involved, how decisions were
made, the coordination involved in implementing decisions and how frequently
the group engaged in incidents or committed acts of racketeering activity and
the length of time between the acts.[12]
[CHARGE ONLY WHEN PURCHASE OF SECURITIES
ALLEGED]
A purchase of securities on the open
market for purposes of investment, and without the intention of controlling or
participating in the control of the issuer or of assisting another to do so,
shall not be unlawful provided that the sum total of the securities of the
issuer held by the purchaser, the members of his/her family and his/her or their accomplices [in any pattern of racketeering activity]
[in the collection of an unlawful debt] does not amount in the aggregate to 1%
of the outstanding securities of any one class, or does not, either in law or
in fact, empower the holders of the securities to elect one or more directors
of the issuer.
[STATUTORY INFERENCE][13]
If it is established that over half the
defendant’s aggregate income for a period of two or more years immediately
preceding the investment was derived from a pattern of racketeering activity,
then you may infer that the investment included income derived from a pattern
of racketeering activity.
An inference is a deduction of fact that
may be drawn logically and reasonably from another fact or group of facts
established by the evidence. Whether or
not an inference should be drawn is for you to decide using your own common
sense, knowledge and everyday experience.
Ask yourselves is it probable, logical and reasonable. However, you are never required or compelled
to draw an inference. You alone decide
whether the facts and circumstances shown by the evidence support an inference
and you are always free to draw or not to draw an inference. If you draw an inference, you should weigh it
in connection with all the other evidence in the case keeping in mind that the
burden of proof is upon the State to prove all the elements of the crime beyond
a reasonable doubt.
[CHARGE IN ALL CASES]
The third element that the State must
prove beyond a reasonable doubt is that the enterprise engaged in trade or
commerce in New Jersey or that the activities affected trade or commerce in New
Jersey.[14]
The terms “trade or commerce”
include any type of economic activity that relates to services or commodities.
The fourth element that the State must
prove beyond a reasonable doubt is that defendant acted purposely or
knowingly. A person acts purposely with
respect to the nature of his/her conduct or the result of that conduct if it is his/her conscious object to engage in conduct of that nature or to
cause such a result. A person acts
purposely with respect to attendant circumstances if the person is aware of the
existence of such circumstances or believes or hopes that they exist. “With
purpose,” “designed,” “with design,” or equivalent terms have the same meaning.
A person acts knowingly with respect to
the nature of his/her conduct or the attendant circumstances if he/she
is aware that the conduct is of that nature or that such circumstances exist or
the person is aware of a high probability of their existence. A person acts knowingly with respect to a
result of the conduct if he/she
is aware that it is practically certain that the conduct will cause a
result. “Knowing,” “with knowledge,” or
equivalent terms have the same meaning.
Purposely and knowingly are states of
mind that cannot be seen and can only be determined by inference from conduct,
words or acts. Therefore, it is not
necessary that the State produce witnesses to testify that a defendant said
that he/she
purposely or knowingly did something. His/Her
purpose or knowledge may be gathered from his/her acts and conduct, from all that he/she
said and did at the particular time and place, and from all the surrounding
circumstances reflected in the testimony [and evidence adduced at trial].
If the State has proven every element
beyond a reasonable doubt, then you must find the defendant guilty. If the State has failed to prove any element
beyond a reasonable doubt, then you must find the defendant not guilty.
If you find defendant guilty of
racketeering beyond a reasonable doubt, you must go on to consider whether the
State has proven beyond a reasonable doubt that the pattern of racketeering
activity involved a crime of violence.
Here, the State alleges that the racketeering activity involved the
violent crime of ______________________.[16]
If you find that the State has proven
beyond a reasonable doubt that the racketeering activity involved the violent
crime of_____________________, then you must find defendant guilty of
racketeering involving a crime of violence.
If you find that the State has failed to prove beyond a reasonable doubt
that the racketeering activity involved the violent crime of
__________________, then you must find defendant not guilty of racketeering
involving a crime of violence and guilty of racketeering.
OR
If you find defendant guilty of
racketeering beyond a reasonable doubt, you must go on to consider whether the
State has proven beyond a reasonable doubt that the pattern of racketeering
activity involved the use of a firearm.
A firearm means [choose appropriate] any handgun, rifle, shotgun,
machine gun, automatic or semi-automatic rifle, or any gun, device or instrument
in the nature of a weapon from which may be fired or ejected any solid
projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other
noxious thing, by means of a cartridge or shell or by the action of an
explosive or the igniting of flammable or explosive substances. It shall also include, without limitation,
any firearm which is in the nature of an air gun, spring gun or pistol or other
weapon of a similar nature in which the propelling force is a spring, elastic
band, carbon dioxide, compressed or other gas or vapor, air or compressed air,
or is ignited by compressed air, and ejecting a bullet or missile smaller than
three-eighths of an inch in diameter, with sufficient force to injure a
person. Here, the State alleges that
defendant used a _______________________.
If you find that the State has proven
beyond a reasonable doubt that the racketeering activity involved the use of a
___________________, then you must find defendant guilty of racketeering
involving the use of a firearm. If you
find that the State has failed to prove beyond a reasonable doubt that the
racketeering activity involved the use of ____________________, then you must
find defendant not guilty of racketeering involving the use of a firearm, and
guilty of racketeering.
[1] The statute also provides that a defendant can
be charged with conspiracy to commit any of the substantive offenses of
racketeering. N.J.S.A.
2C:41-2d. If a defendant is charged
under this subsection, the trial judge should use the Model Jury Charge on Conspiracy. See N.J.S.A. 2C:5-2.
[3] The statute excludes from the 10 year period any
time the defendant spent in prison. N.J.S.A.
2C:41-1(d)(1). If this is relevant in a
case, the parties and trial court should discuss a way to inform the jury of
that fact without unduly prejudicing the defendant.
[5] The crimes or conduct which are eligible for
racketeering activity are set forth in N.J.S.A. 2C:41-1a(1) and
(2). Note that N.J.S.A.
2C:41-1a(1) was amended in 1995, 1999, 2003, 2005 and 2007 to add various
crimes to those eligible for racketeering activity. Inclusion in the indictment
of a crime which was not in effect at the time of the alleged offense could
raise an ex post facto issue, at least in the absence of a continuing crime.
[6] The statute makes reference to the defendant
being a “principal” as set forth in N.J.S.A. 2C:2-6. It is unclear what the Legislature meant,
since N.J.S.A. 2C:2-6 is the accomplice liability provision, but it
seems that the legislation was intended to limit liability to those defendants
who personally collect the unlawful debt.
[10] State v. Ball, 141 N.J. 142, 161 (1995), certif.
denied, sub nom. Mocco v.
New Jersey, 516 U.S. 1075, 116 S.Ct. 779 (1996).
[13] The statute speaks in terms of “rebuttable presumption” but
pursuant to N.J.R.E 303(c), it has been changed to inference.
[14] State v. Casilla, 362 N.J. Super.
554, 565 (App. Div.), certif. denied, 178 N.J. 251 (2003) (State
must prove that enterprise engaged in trade or commerce in New Jersey or
affected trade or commerce in New Jersey or affected trade or commerce in New
Jersey).
[15] The racketeering statute provides that racketeering is
ordinarily a second degree crime, but is a first degree crime when the
defendant violates any provision of N.J.S.A. 2C:41-2 which involves a
crime of violence, the use of firearms or a crime of the first degree. N.J.S.A. 2C:41-3a.
[16] Presumably, the “crimes of violence” already have been
charged to the jury. If not, the trial
court must charge the jury on the elements of the crimes. See State v. MacIlwraith, 344 N.J.
Super. 544, 548 (App. Div. 2001) (analyzing similar element in terroristic
threats offense).
