The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Before the Court for disposition is the MOTION FOR JUDGMENT OF ACQUITTAL/TO SET ASIDE THE VERDICT AND ENTER A JUDGMENT OF ACQUITTAL AS TO COUNT I filed by Defendant, Brian Ramsey, and the ANSWER TO POST-TRIAL MOTION FOR JUDGMENT OF ACQUITTAL filed by the government.
After careful consideration of the motion, the relevant case law, and the record as a whole, the Court will deny the motion.
On August 24, 2005, a superseding indictment was filed against Brian Ramsey in which he was charged with one count of participating in a racketeering enterprise ("RICO") in violation of 18 U.S.C. § 1962(c) (Count 1); one count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d) (Count 2); eight counts of mail fraud, in violation of 18 U.S.C. § 1341, 1346 and 2 (Counts 3 -10); and three counts of filing a false income tax return, in violation of 26 U.S.C. § 7206(1) (Counts 11-13).
A jury trial commenced on May 9, 2006. On May 30, 2006, the jury rendered a unanimous verdict and Defendant was found guilty on Counts 1, 2, 3, 4, 5, 6, 7, 11, 12, and 13 and not guilty on Counts 8, 9, and 10 of the superseding indictment.
The Defendant has filed a timely motion for judgment of acquittal/to set aside the verdict as to Count 1 of the superseding indictment, participating in a racketeering enterprise. The Defendant contends that the jury's finding that only two separate predicate acts were proven beyond a reasonable doubt, which spanned "little more than a two (2) month time period" is "obviously insufficient" as a matter of law "to satisfy the pattern of racketeering activity requirement." Thus, Defendant requests that the Court enter a judgment of acquittal as to Count I. Def's Mot. at ¶ 3(f).*fn1
The government responds that Defendant's motion should be denied as the "pattern requirement" required under RICO "lacks any specific chronological component, and may be fully satisfied by related acts that, as here, reveal a 'threat' of continuity, not only actual continuity." Govt's Answer at unnumbered 1.
Title 18, United States Code, section 1962(c) makes it unlawful for: any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c). "To establish a § 1962(c) RICO violation, the government must prove the following four elements: '(1) the existence of an enterprise affecting interstate commerce; (2) that the defendant was employed by or associated with the enterprise; (3) that the defendant participated, either directly or indirectly, in the conduct or the affairs of the enterprise; and (4) that he or she participated through a pattern of racketeering activity.' " United States v. Urban, 404 F.3d 754 (3d Cir. 2005) (quoting United States v. Irizarry, 341 F.3d 273, 285 (3d Cir. 2003)). Defendant argues that Count I of the superseding indictment should be dismissed because the jury failed to find sufficient facts to prove a necessary element of a § 1962(c) violation, to wit, a pattern of racketeering activity.
Section 1962(a) defines "racketeering activity" as an act chargeable under any of the individual state and federal crimes listed in § 1961(1). To have a "pattern of racketeering activity" there must be at least two acts of racketeering activity. 18 U.S.C. § 1961(5) (emphasis added).
In H.J. Inc. v. Northwestern Bell Telephone Co., the United States Supreme Court enunciated a two-prong test of the pattern requirement:
[T]o prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or ...