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How do they prove RICO
|Thanks for visiting Spodek Law Group. We’re a second-generation law firm managed by Todd Spodek, who you might know from the Netflix series about our client Anna Delvey. We’ve handled high-profile federal cases for over 40 years of combined experience — including the Ghislaine Maxwell juror misconduct case. This article breaks down exactly what prosecutors need to prove to convict someone under RICO, why the “pattern” requirement trips up so many cases, and what types of evidence federal prosecutors actually use.
RICO charges sound terrifying because they are. The Racketeer Influenced and Corrupt Organizations Act was designed to take down mob bosses, prosecutors use it against street gangs, businesses, and anyone running a criminal enterprise. But RICO isn’t easy to prove — it requires prosecutors to establish five distinct elements beyond a reasonable doubt, and if they fail on even one, the case collapses.
The Five Elements Prosecutors Must Prove
Federal prosecutors must prove five things to get a RICO conviction. First — that an enterprise existed. Second — that the enterprise affected interstate commerce. Third — that you were associated with or employed by the enterprise. Fourth — that you engaged in a pattern of racketeering activity. Fifth — that you conducted or participated in the conduct of the enterprise through that pattern of racketeering activity.
Interstate commerce sounds complicated, but it’s almost always satisfied — if the enterprise used phones, the internet, or crossed state lines even once, that element is met. The association element requires proof you had some connection to the enterprise, you don’t need to be a formal member.
The last element — conducting or participating in the conduct of the enterprise through racketeering — requires prosecutors to show you didn’t just commit crimes near the enterprise, you committed crimes as part of running it or helping it operate. This separates low-level players from the people prosecutors really want to convict under RICO.
The Pattern Requirement is Where RICO Cases Live or Die
Here’s what most people get wrong about RICO. They think committing two crimes from the list of 35 predicate offenses is enough to establish a pattern. It’s not. The pattern requirement is significantly more demanding than just counting to two.
According to Department of Justice guidelines, prosecutors must prove two additional elements beyond the two predicate acts: relationship and continuity. The predicate acts must be related — meaning they have the same or similar purposes, results, participants, victims, or methods of commission. They can’t be isolated events that just happened to involve the same person.
Continuity is both closed and open-ended. Closed-ended continuity means the criminal conduct extended over a substantial period — courts have found that conduct lasting less than one or two years isn’t sufficient. Open-ended continuity means past conduct that projects into the future with a threat of repetition — think of an ongoing business that routinely commits fraud as part of how it operates.
In the Highs gang RICO prosecutions that concluded in 2025, federal prosecutors in Minnesota proved pattern by showing gang members repeatedly sold fentanyl at the same intersection in North Minneapolis over an extended period. The conduct wasn’t two isolated drug deals — it was systematic control of territory for ongoing drug trafficking. That’s what pattern means in practice.
What Counts as an Enterprise Under RICO
The enterprise element is broader than most expect. An enterprise includes any individual, partnership, corporation, association, or legal entity. It also includes any union or group of individuals associated in fact although not a legal entity.
Association-in-fact enterprises must have three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to pursue the enterprise’s purpose. It doesn’t need bylaws or a formal organization chart.
A street gang is an association-in-fact enterprise. A group committing healthcare fraud qualifies. Even a loose network coordinating wire fraud can qualify. The evidence proving pattern and establishing an enterprise often overlaps — the same facts showing repeated criminal conduct also demonstrate a structured group working together.
The Types of Evidence Federal Prosecutors Use
RICO prosecutions are evidence-intensive. Federal prosecutors don’t show up to trial with two witness statements and a hunch — they build RICO cases over years with multiple types of evidence that reinforce each other.
Wiretaps are common in RICO investigations. Federal agents get court approval to intercept phone calls, text messages, and other communications. Those wiretaps capture defendants discussing criminal activity, coordinating with other enterprise members, or talking about past crimes. The Five Families prosecution relied heavily on hundreds of wiretaps proving the enterprise’s existence and operations.
Cooperating witnesses are another cornerstone. These are typically enterprise members who got arrested and decided to cooperate with federal prosecutors in exchange for reduced sentences. They testify about the enterprise’s structure, who the leaders were, what crimes were committed, how money flowed. Defense attorneys attack cooperating witnesses by exposing their incentives to lie and inconsistencies in their testimony — but juries often find them credible because they have inside knowledge no outsider could possess.
Financial records matter enormously in fraud or money laundering cases. Prosecutors track money through bank records, shell companies, offshore accounts. In drug trafficking cases, they use seized drugs, weapons, ledgers. Surveillance evidence documents who meets with whom, where enterprise members go, what locations they control.
How Prosecutors Connect All Five Elements
In the Highs gang prosecutions that concluded in 2025, prosecutors charged 40 members and convicted 38. The government proved the gang was an enterprise with a purpose (drug trafficking and territorial control), relationships among members, and longevity. They proved pattern through multiple predicate acts — drug distribution, violent crimes — that were clearly related and demonstrated continuity. They proved individual defendants conducted the gang’s affairs by showing specific acts each committed.
That’s how RICO cases work. Prosecutors build massive evidentiary records using wiretaps, cooperators, financial records, and surveillance. Then they prove each defendant conducted the enterprise’s affairs through racketeering.
What This Means If You’re Facing RICO Charges
RICO cases are among the most complex federal prosecutions. Prosecutors typically spend years building these cases before indicting anyone. If you’re under investigation for RICO or already charged, you need defense lawyers who understand how to challenge each element of the government’s case.
Attack the pattern requirement by showing the predicate acts lack relationship or continuity. Challenge the enterprise by demonstrating the alleged group lacked required structural features. Question cooperating witnesses who have every incentive to lie. Challenge the legality of wiretaps and surveillance. Contest whether the defendant actually conducted the enterprise’s affairs or just associated with people who did.
At Spodek Law Group, we’ve handled federal cases that others said were unwinnable — that’s what we’re known for. Todd Spodek is a second-generation criminal defense lawyer with many, many years of experience handling high-stakes federal prosecutions. We know how to challenge evidence and create reasonable doubt on the elements prosecutors must establish. RICO cases require lawyers who understand both the statutory requirements and how federal prosecutors actually build these cases.
The five elements remain the same in every RICO case — and if prosecutors can’t prove all five beyond a reasonable doubt, the RICO charge fails. That’s where experienced defense lawyers make the difference.