long the association of individuals must last, Turkette defines “enterprise” as a long-term organization.
However,
Turkette did not specifically address the question of how much structure an enterprise must have. In subsequent cases, federal courts have been divided on this issue. Seven circuits have required the enterprise to have a structure above and beyond the racketeering activity in which it engages.
See United States v. Riccobene, 709 F.2d 214, 223-24 (3d Cir.),
cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983);
United States v. Tillett, 763 F.2d 628, 632 (4th Cir.1985);
Atkinson v. Anadarko Bank & Trust Co., 808 F.2d 438, 441 (5th Cir.),
cert. denied, 483 U.S. 1032, 107 S.Ct. 3276, 97 L.Ed.2d 780 (1987);
Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir.1995) (citing
United States v. Neapolitan, 791 F.2d 489, 499-500 (7th Cir.),
cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986));
United States v. Bledsoe, 674 F.2d 647 (8th Cir.), cert.
denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982);
Chang v. Chen, 80 F.3d 1293 (9th Cir.1996);
United States v. Sanders, 928 F.2d 940, 944 (10th Cir.),
cert. denied, 502 U.S. 845, 112 S.Ct. 142, 116 L.Ed.2d 109 (1991).
10 As the basis for their position, these circuits rely on the language in
Turkette stating that “[t]he ‘enterprise’ is not the ‘pattern of racketeering activity1; it is an entity separate and apart from the pattern of activity in which it engages.”
Turkette, 452 U.S. at 583, 101 S.Ct. at 2529.
Two circuits, however, take a different position on the question of structure. They hold that it is not necessary for the enterprise to have any structure beyond its predicate acts of racketeering.
See United States v. Bagaric, 706 F.2d 42, 55 (2d Cir.),
cert. denied, 464 U.S. 840, 104 S.Ct. 133, 134, 78 L.Ed.2d 128 (1983);
United States v. Cagnina, 697 F.2d 915, 921 (11th Cir.),
cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983). These circuits also rely on language found in
Turkette; however, they focus on the passage stating that the proof used to establish the enterprise and the pattern of racketeering activity “may in particular cases coalesce.”
Turkette, 452 U.S. at 583, 101 S.Ct. at 2529.
In light of federal case law, we hold the following regarding the enterprise element of HRS § 842-2(3). We adopt the requirement in Turkette that an enterprise must be an ongoing organization with continuity of personnel. We further adopt the majority view on the question of structure; an enterprise must have a structure above and beyond the racketeering activity in which it engages.
The Eighth Circuit has developed a coherent and comprehensive definition which includes all the characteristics that we deem relevant to an “enterprise” under HRS § 842-2(3). Therefore, we adopt this definition. According to the Eighth Circuit, there are three characteristics of a RICO enterprise:
First, there must be a common or shared purpose that animates the individuals associated with it. Second, it must be an “ongoing organization” whose members “function as a continuing unit,” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528; in other words, there must be some continuity of structure and of personnel. Third, there must be an ascertainable structure distinct from that inherent in the conduct of ... racketeering activity.
United States v. Kragness, 830 F.2d 842, 855 (8th Cir.1987) (citing Bledsoe, 674 F.2d at 664-65). The first characteristic incorporates the requirement of a common or “particular” purpose found in HRS § 842-1. The second characteristic incorporates the requirements of Turkette. The third characteristic incorporates the majority view on structure.
10
Although some of these cases are civil rather than criminal actions, "there appears to be little reason to interpret the enterprise requirement differently in civil and criminal RICO cases.” Chang, 80 F.3d at 1297 n. 1. The requirements of a RICO violation are set out in 18 U.S.C. § 1962(c) and apply to both civil and criminal actions. The only difference is in the remedy, with 18 U.S.C. § 1963 providing for criminal sanctions and 18 U.S.C. § 1964 providing for civil sanctions. Id.