To establish a criminal conspiracy violation under Section 1962(d), a federal prosecutor must prove each of the following elements beyond a reasonable doubt:

A defendant could be charged with conspiracy to violate RICO even if they did not participate in the operation or management of the enterprise. The defendant needs only to have knowingly agreed to facilitate a scheme that would, upon completion, constitute a substantive violation of RICO including at least one other conspirator who would participate in the operation or management of the enterprise.

Under Section 1963(a), the maximum penalty shall be not more than 20 years of imprisonment, unless an underlying predicate offense carries a penalty of life in prison. However, if a defendant is charged with more than one type of underlying racketeering activity, courts may treat each underlying offense as a separate count of conviction, potentially increasing the penalty.

In RICO prosecutions, the role a defendant plays in the offense may impact their penalty if convicted. A common sentencing enhancement, or increase, is considered if the defendant was an organizer or leader in the alleged racketeering activity. Alternatively, defendants who played a minor or minimal role may qualify for a mitigating adjustment, or a decrease in their penalty. However, the defendant bears the burden of proof in qualifying for a mitigating role reduction.

RICO prosecutions have been overreaching and arguable abused over the years. A statute once designed to tackle organized crime has been used to go after white collar executives and curbing banking violations. The term “racketeering” was so broadly defined that it opened the door to prosecutions that no one expected at its inception.