RACKETEERING[1]
(N.J.S.A.
2C:41-2c) 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 employed by
or associated with any enterprise engaged in or activities of which affect
trade or commerce to conduct or participate, directly or indirectly, in the
conduct of the enterprise’s affairs [through a pattern or racketeering
activity] [through collection of unlawful debt].
In order to convict defendant of the
charge, the State must prove the following elements beyond a reasonable doubt:
1. That
there was an enterprise;
2. That
the enterprise was engaged in trade or commerce or that its activities affected
trade or commerce;
3. That
the defendant was employed or associated with the enterprise;
4. That
the defendant participated directly or indirectly in the conduct of the enterprise’s
affairs;
5. That
the defendant did so through a pattern of racketeering
OR
5. That
the defendant did so through collection of an unlawful debt;
6. That
the defendant acted purposely or knowingly.
The first element that the State must
prove beyond a reasonable doubt is that there was 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.[2] 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.[3]
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.[4]
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.[5]
The second 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.[6] The terms “trade or commerce” include any
type of economic activity that relates to services or commodities.
The third element that the State must
prove beyond a reasonable doubt is that defendant was employed by or associated
with the enterprise. A person is
employed by or associated with an enterprise if he/she has a position or a functional connection with the
enterprise that enables him/her
to engage or participate directly or indirectly in the affairs of the
enterprise. To conduct or participate in
the affairs of the enterprise means to act purposefully or knowingly in the
affairs of the enterprise in the sense of engaging in activities that seek to
further, assist or help effectuate the goals of the enterprise. Those activities may include acts that are
managerial or supervisory or exercise control and direction over the goals or
over the methods used to achieve the goals of the enterprise.
However, the State does not have to show
that the defendant is himself/herself a supervisor or a manager.[7] Participatory conduct or activities also may
be found in acts that are below the managerial or supervisory level, and do not
exert control or direction over the affairs of the enterprise, as long as the
actor, directly or indirectly, knowingly seeks to carry out, assist, or further
the operations of the enterprise or otherwise seeks to implement or execute
managerial or supervisory decisions.
The fourth element that the State must
prove beyond a reasonable doubt is that defendant participated directly or
indirectly in the conduct of the enterprise’s affairs. Essentially, a defendant participates in the
affairs of the enterprise if he/she directly or indirectly purposely or knowingly seeks to
carry out, assist or further the operations of the enterprise. The State must prove beyond a reasonable
doubt that the defendant was involved in incidents of racketeering conduct in a
knowing effort to assist the enterprise’s goal, which the State alleges was ____________________.
The fifth element that the State must
prove beyond a reasonable doubt is that defendant participated directly or
indirectly in the conduct of the enterprise’s affairs through a pattern of
racketeering activity. 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,[8]
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.[9]
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].[10] 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.
While the pattern of racketeering
activity is a separate and distinct element from the element of enterprise,
nevertheless, evidence that serves to prove one element may also be considered
in determining whether the State has proven the other. In other words, evidence that proves the
existence of the enterprise need not be distinct or different from the proof
that establishes the pattern of racketeering activity.[11]
OR
The fifth element that the State must
prove beyond a reasonable doubt is that defendant participated directly or
indirectly in the conduct of the enterprise’s affairs through collection of
unlawful debt. 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.[12]
In this case, the State alleges that
defendant _____________ (set forth allegations of collection of unlawful debt).
The sixth 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.
Purpose and knowledge 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 each of these
elements 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.
[CHARGE IF APPROPRIATE][13]
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 ______________________.[14]
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] State v. Ball, 141 N.J. 142, 161 (1995), cert.
denied sub nom. Mocco v. New Jersey,
516 U.S. 1075, 116 S.Ct. 779 (1996).
[6] 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).
[8] 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.
[10] 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.
[13] 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.
[14] 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).
