A Comparison of California and Federal Gang Laws

Under both California and federal law, gang members convicted of serious felonies often receive harsher sentences than non-gang members who commit the same crimes.

Laws punishing gang membership fall into two general categories:

• Felony sentencing enhancements; and
• Laws making it a crime to commit serious offenses on behalf of a gang, or in order to get into, or to maintain or improve one’s position in, a gang.

The statutes providing gang-related sentencing enhancements are:

1. California Penal Code 186.22 PC(b), the gang sentencing enhancement of the “California Street Terrorism Enforcement and Prevention Act” (“STEP”).

Under Penal Code 186.22(b), anyone who commits a felony for the benefit of a gang, with the specific intent to promote, further, or assist in the gang’s criminal conduct, will receive a mandatory prison sentence . . . in addition and consecutive to the penalty for the underlying felony. This statute is commonly referred to as California’s gang sentencing enhancement.

2. 18 USC 521, the federal “Criminal Street Gangs” statute.

18 USC 521 provides a penalty enhancement of up to 10 years for certain gang members who commit crimes with the intention of furthering the activities of the gang, or to maintain or advance their position within the gang. The enhancement is in addition to the penalty for the underlying crime(s).

Laws that make it a crime in and of itself to commit one or more felonies if you are a gang member include:

1. California Penal Code 186.20-186.33, the “California Street Terrorism Enforcement and Prevention Act” (“STEP”).

Penal Code 186.22(a) makes it a crime to participate in a street gang and assist in any felony charges criminal conduct by the gang’s members.

Penalties for violation of Penal Code 186.22(a) PC can include a year in county jail or up to three years in state prison¹.

2. California Penal Code 186-186.8, the “California Control of Profits of Organized Crime Act”

Penal Code 186-186.8 is used to deprive gang members who commit two or more felonies for financial gain of their profits.

The penalty for violating the “California Control of Profits of Organized Crime Act” is the forfeiture of profits from illegal acts.

3. 18 USC 1961-68, the Racketeer Influenced and Corrupt Organizations Act (“RICO”).

Under RICO, you can be punished if you commit, or conspire to commit, two or more crimes (“predicate acts”) from a list of 36 specified state and/or federal crimes in furtherance of the activities of a criminal “enterprise” (which can include a street gang).

Penalties for RICO violations can include a prison sentence of up to 20 years or, in some cases, life imprisonment, as well as forfeiture of profits from your illegal activities and a fine of up to $250,000.

4. 18 USC 1959, the Violent Crimes in Aid of Racketeering Act “(VICAR”).

VICAR punishes those who commit a violent crime in order to be admitted into, or to bolster their position in, a criminal enterprise.

Penalties under VICAR can include prison sentences of up to 30 years (or for murder, life imprisonment or the death penalty), and fines of up to $250,000.

5. The Continuing Criminal Enterprise statute (“CCE” or “Kingpin statute”) 21 USC 848

CCE makes it a crime to be a leader of a drug enterprise or to kill someone while engaging in, or avoiding arrest for, certain drug-related offenses. Unlike RICO and VICAR, which target a wide range of criminal enterprises, CCE covers only major narcotics organizations.

Penalties under CCE include prison sentences of not less than 20 years, (or for murder or ordering a murder, life imprisonment or the death penalty), as well as forfeiture of profits and fines of up to $4,000,000 for individuals and $10,000,000 for organizations.

Penalties under this second class of statutes are in addition to sentences and penalty enhancements for any underlying crimes.

RICO, VICAR and CCR penalties are in addition to each other as well as to sentences and penalty enhancements for underlying crimes.

Likewise, forfeiture under the California Control of Profits of Organized Crime Act and penalties under STEP may be imposed in addition to each other as well as to penalties and enhancements for underlying crimes.

Thus, if you commit a gang-related crime, you can be prosecuted for violations of multiple statutes, and receive separate and consecutive penalties for each.

Differences between prosecution under federal and state statutes include the legal definitions of “criminal street gang” and “enterprise,” as well as some differences in crimes that count as predicate acts.

But perhaps the biggest difference between being charged in federal rather than state court for a gang-related crime is that there is no parole under the federal system.

If you are convicted of a gang-related crime in federal court, you will serve your full sentence.

Example

Joe is a member of a violent Los Angeles street gang that traffics drugs obtained from Mexico.

He gets arrested for selling drugs to help the gang make money to buy weapons, and for killing a rival gang member to keep him from selling drugs on Joe’s turf.  After the killing, Joe brags to a friend that he did it to improve his position in his gang.

Joe can be charged in Los Angeles Superior Court for violations of various California criminal statutes, which might include:

• sale of a controlled substance under California Health and Safety Code 11352 HS;
• murder under California Penal Code 187; and
• participation in a gang under California Penal Code 186.22 PC.

Alternatively, Joe could be prosecuted in the United States District Court for the Central District of California for violations of federal criminal statutes, which might include:

• drug trafficking under 21 USC 841;
• murder under 18 USC 1111; and possibly
• violation of the Kingpin statute.

If approved by the United States Department of Justice (DOJ), Joe might be prosecuted instead – or additionally — in federal court for:

• violation of RICO based on the related predicate acts of drug trafficking and murder; and/or
• violation of VICAR based on the predicate act of murder.

Defenses

Just because you are accused of a gang-related crime, it does not necessarily mean the prosecution will be able to make the charges stick.

Legal defenses to gang charges under both California and federal law include (but are not limited to) taking the position that:

• you didn’t commit the underlying crimes you are accused of;
• you weren’t a member of a gang;
• the gang doesn’t meet the definition of a “criminal street gang” or an “enterprise” under the applicable statute;
• the offenses you were charged with were not connected to, or in furtherance of, the gang’s illegal activities.

Below, our federal criminal defense attorneys² discuss the following issues related to gang-related charges:

1. The choice to prosecute gang members in federal or state court

2. Legal definitions of  “criminal street gang”
and “enterprise”

2.1. The legal definition of  a “criminal street gang”
under STEP

2.2. The legal definition of a “criminal street gang” under the federal Criminal Street Gangs statute.

2.3. The legal definition of an “enterprise” under RICO
and VICAR

2.4. The legal definition of a “continuing criminal enterprise” under CCE

3. The interstate commerce requirement under RICO, VICAR and the Criminal Street
Gangs statute

4. The Racketeer Influenced and Corrupt Organizations Act (“RICO”)
18 USC 1961-68

4.1. Prohibited activities – RICO 18 USC 1962

4.2. Definition of “racketeering activity –
RICO 18 USC 1961

4.3. “Pattern of racketeering activity” –
RICO 18 USC 1961

4.4. Penalties for RICO violations

4.4.1. Criminal penalties – 18 USC 1963

4.4.2. Civil penalties – 18 USC 1964

5. The Violent Crimes in Aid of Racketeering Act (“VICAR”) 18 USC 1959

5.1. Prohibited activities under VICAR

5.2. Penalties under VICAR

6. Criminal fines under RICO and VICAR

7. Gangs whose primary purpose is drug trafficking – the Continuing Criminal Enterprise statute (“CCE” or “Kingpin” statute)
21 USC 848

8. Participation in a gang under the California Street Terrorism Enforcement and Prevention Act (“STEP”) Penal Code 186.22 PC(a)

9. California Penal Code 186-186.8, the “California Control of Profits of Organized Crime Act”

10. No double jeopardy for convictions under both gang and underlying crime statutes

11. Sentencing enhancements under the California Street Terrorism Enforcement and Prevention Act (“STEP”)
Penal Code 186.22 PC(b)

12. Sentencing enhancements under 18 USC 521, the “Criminal Street Gangs Statute”

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. When and why gang members are prosecuted in federal court

Federal prosecutors charge gang members under racketeering statutes for two main reasons:

• to try to disrupt and destroy the entire structure of gangs³;
• to prosecute gangs involved in large-scale drug trafficking; and
• to ensure that gang members who commit violent crimes serve longer sentences than they would if convicted in state court.

RICO and VICAR prosecutions must be approved by the Criminal Division of the United States Department of Justice (DOJ).⁴

In general, RICO and VICAR are used to prosecute violations of federal law.  They are used to prosecute violations of state law only if there is a compelling reason to do so, such as:

• local law enforcement officials do not have the resources to investigate and prosecute meritorious cases in which the federal government has a significant interest;
• significant organized crime involvement exists;
• local authorities have requested federal participation;
• the offense is closely related to a federal investigation or prosecution; or
• a federal charge can combine related offenses which would otherwise have to be prosecuted separately in different jurisdictions.⁵

Federal gang prosecutions are complicated and expensive to prosecute.  Because of the longer sentences involved, however, the mere threat of federal prosecution is often an effective tool in getting defendants to take plea offers under state law.

In Los Angeles, serious gang crimes are investigated by both the LAPD and the Los Angeles Metro Task Force On Violent Crime, a multiagency force overseen by the FBI.

2. Legal definitions of  “criminal street gang” and “enterprise”

2.1. The legal definition of  a “criminal street gang” under STEP

STEP, California Penal Code 186.22(a) PC, defines a “criminal street gang” as:

• a formal or informal group;
• of three or more people;
• with a common name, sign or symbol;
• one of whose primary activities is the commission of at least one serious crime from a long list of state crimes, including violence and drug trafficking; and
• who engage in a pattern of criminal gang activity.⁶

2.2. The legal definition of a “criminal street gang” under the federal Criminal Street Gangs statute.

The definition of a “criminal street gang” is much more restrictive under the Criminal Street Gangs than it is under STEP.  Under 18 USC 521, you participate in a criminal street gang when:

1. 1. you are a member of a group of five or more people; and
   2. the group meets the following conditions:

a. one of the group’s primary purposes is to commit either

•    federal drug felonies that carry prison sentences of at least five years; or

•   federal felonies that involve the use of physical force; and

b. during the last five years, the group’s members have engaged in a continuing series of serious federal felonies involving drugs or the use of physical force; and

c. the group’s activities affect interstate or foreign commerce.

Because the definition of a criminal street gang is so strict, 18 USC 521 has not proven to be an effective federal sentencing tool.

2.3. The legal definition of an “enterprise” under RICO and VICAR

RICO and VICAR punish membership in criminal “enterprises.”You are a member of an “enterprise” under RICO and/or VICAR if you belong to:

• a formal or informal group of people;
• who have an on-going association;
• for a common purpose; and
• whose conduct is in furtherance of, or has an effect on interstate commerce.⁷

Under RICO and VICAR a gang does not need to be formal or official or have a hierarchical or command structure⁸ , and its members may change and do not need to be associated with the enterprise for the entire period alleged in the indictment.⁹

If you belong to a group that identifies itself as a gang and has a well-honed set of goals, you probably belong to an “enterprise” for purposes of RICO and VICAR.

2.4. The legal definition of a continuing criminal enterprise under CCE

You are part of a “continuing criminal enterprise” for purposes of 21 USC 848 when you:

• commit a federal drug felony;
• as part of a continuing series of felony drug violations;
• in concert with five or more other persons you manage or supervise; and
• you obtain substantial income or resources from the activity.¹⁰

3. The interstate commerce requirement under RICO and VICAR

You can only be charged with a violation of RICO or VICAR for gang-related crimes if your gang is engaged in, or its activities affect, interstate or foreign commerce.

In a federal court in California, only a minimal connection with interstate commerce is required to make the required showing under RICO or VICAR.¹¹ The prosecution does not even need to prove that your own acts affected interstate commerce, as long as the enterprise’s acts had such effect.

If your gang sells drugs brought in from another state or country, or uses an interstate highway to drive to or from a place of illegal activity, the interstate commerce requirement could be satisfied.

Example

Nardo threatens rival gang members in his neighborhood on behalf of his gang, which owns a lot of guns.  Even though Nardo’s actions are local, the interstate commerce requirement is met because some of the guns are manufactured in another state.¹²

4. The Racketeer Influenced and Corrupt Organizations Act (“RICO”) 18 USC 1961-68

You can be prosecuted under RICO if you engage in a “pattern of racketeering activity” by committing two or more “predicate crimes” on behalf of a street gang.

4.1. Prohibited activities under RICO 18 USC 1962

You violate RICO 18 USC 1962(c) when:

• you are employed by or associated with any enterprise;
• the enterprise participates in, or its activities affect, interstate commerce;
• you conduct or participate in the conduct of the enterprise’s affairs; and
• you do so through a pattern of racketeering activity or the collection of an unlawful debt¹³.

4.2. Definition of “racketeering activity” under RICO 18 USC 1961

Under 18 USC 1961, you engage in “racketeering activity” when you commit or threaten to commit:

1. 1. any of the following acts which are chargeable under state law and punishable by imprisonment for more than one year:
      • murder;
      • kidnapping;
      • gambling;
      • arson;
      • robbery;
      • bribery;
      • extortion;
      • dealing in obscene matter; or
      • dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act 21 USC 802);OR

1. any act which is indictable under certain listed provisions of title 18 of the United States Code, including (but not limited to):
   • bribery;
   • counterfeiting;
   • obstruction of justice;
   • obstruction of criminal investigations;
   • robbery;
   • extortion;
   • interstate transportation of stolen vehicles;
   • sexual exploitation of children;
   • infringement of copyrighted materials;
   • trafficking in pirated CDs and DVDs;
   • the felonious manufacture, sale or trafficking of controlled substances; and
   • aiding or assisting certain aliens to enter the united states.¹⁴

4.3. “Pattern of racketeering activity” under RICO

You engage in a “pattern of racketeering activity” under RICO 18 USC 1961 when:

• you commit two or more related predicate acts of racketeering activity;
• within ten years of each other.

Two acts, in and of themselves, may not be sufficient to constitute a RICO violation.¹⁵ To establish a RICO pattern, the government must also show that:

• your two offenses are related; and
• the offenses amount to, or pose a threat of, continued criminal activity.¹⁶

To be considered related, your acts must take place over a relatively long time period and be connected by distinguishing characteristics such as similar:

• purposes;
• results;
• participants;
• victims; or
• methods of commission.¹⁷

4.4. Penalties for RICO violations

4.4.1 Criminal penalties – 18 USC 1963

If you violate RICO, you could be sentenced to:

1. imprisonment of not more than 20 years (or life, if the violation is based on a crime for which the maximum penalty includes life imprisonment); AND
2. forfeiture of any property obtained as the result of your predicate acts under 18 USC 1962; AND
3. a fine, as set forth below

4.4.2 Civil penalties – 18 USC 1964(c)

In addition to the criminal penalties set forth above, if you violate RICO you can be sued by your victim(s) for:

• three times the damages sustained; and
• the cost of the victim’s suit, including a reasonable attorney’s fee.¹⁸

5. The Violent Crimes in Aid of Racketeering Act “(VICAR”) 18 USC 1959

The Violent Crimes in Aid of Racketeering Act “(VICAR”) 18 USC 1959 complements RICO and uses the same general concepts of “enterprise” and “racketeering activity.”

5.1. Prohibited activities under VICAR

You violate VICAR when you:

1. 1. commit, or conspire to commit, one of the following violent crimes:
      • murder;
      • kidnapping;
      • maiming;
      • assault with a dangerous weapon;
      • assault resulting in serious bodily injury; or
      • threaten to commit a crime of violence against any individual in violation of any state or federal law;

1. 1. in exchange for:

a. payment or other consideration, or

b. gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity

5.2. Penalties under VICAR

If you violate VICAR, you could be sentenced to:

• for murder, death or life imprisonment;
• for kidnapping, imprisonment up to life;
• for maiming, imprisonment for not more than thirty years;
• for assault with a dangerous weapon or assault resulting in serious bodily injury, imprisonment for not more than twenty years;
• for threatening to commit a crime of violence, imprisonment for not more than five years;
• for attempting or conspiring to commit murder or kidnapping, imprisonment for not more than ten years; or
• for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury, imprisonment for not more than three years;AND/OR

You could be fined in the amounts set forth below.

6. Criminal fines under RICO and VICAR

If you violate RICO and/or VICAR, in addition to, or instead of, imprisonment and/or forfeiture, you could be fined in one of the following amounts for each violation:

1. 1. the amount specified in the law setting forth the underlying offense;OR

1. an amount based on the classification of the offense:
   • for a felony, not more than $250,000;
   • for a misdemeanor resulting in death, not more than $250,000;
   • for a Class A misdemeanor that does not result in death, not more than $100,000;
   • for a Class B or C misdemeanor that does not result in death, not more than $5,000;
   • for an infraction, not more than $5,000;OR
2. twice the gross amount you made from the underlying offense(s).¹⁹

7. Gangs whose primary purpose is drug trafficking – the Continuing Criminal Enterprise statute (“CCE”or “Kingpin” statute) 21 USC 848

If the primary purpose of a gang is the large-scale distribution of narcotics, then instead of using RICO/VICAR, federal prosecutors will often seek convictions under 21 USC 848, the Continuing Criminal Enterprise statute, also known as the “Kingpin,” statute.

You violate 21 USC 848 when you engage in a “continuing criminal enterprise,” that is, when you:

• commit a serious federal felony;
• as part of a continuing series of felony violations;
• in concert with five or more other people you manage or supervise; and
• from which you obtain substantial income or resources.²⁰

Penalties for violation of 21 USC 848 may include:

• a sentence of not less than 20 years, and possibly life imprisonment or the death penalty;
• forfeiture of profits; and
• a fine of up to $4,000,000 for an individual or $10,000,000 for an organization.²¹

Life imprisonment is mandatory if:

• You are the leader, or one of the leaders, of the enterprise; and
• The quantity of drugs is especially large or your enterprise made profits of over $10,000,000 during any 12-month period.²²

The death penalty may be imposed if you:

• intentionally kill, or counsel someone to intentionally kill, another person in furtherance of a continuing criminal enterprise; or
• during the commission of a crime, or in order to avoid capture, you intentionally kill, or counsel someone to intentionally kill, a federal, state, or local law enforcement officer.²³

8. Participation in a gang under the California Street Terrorism Enforcement and Prevention Act (“STEP”) Penal Code 186.22 PC(a)

You violate the first part of STEP when you:

• actively participate in a criminal street gang;
• with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and
• you willfully promote, further, or assist in felony conduct by members of that gang,

The definition of a “pattern of criminal gang activity” under STEP is complicated.²⁴ But, put very simply, it means:

• the commission of two (2) or more crimes from a specific list;
• on two (2) or more separate occasions or by two (2) or more people;
• within three (3) years of each other; and
• with at least one crime committed after September 1988.

The list of criminal offenses that can establish a “pattern of criminal gang activity” under STEP is quite long.  It includes such common offenses as:

• robbery
• drug offenses;
• drive-by shootings,
• felony vandalism;
• assault with a deadly weapon; and
• murder.²⁵

Under STEP, the offenses don’t even need to be gang-related.²⁶

In order for you to be convicted of the crime of “participation in a gang” under Penal Code 186.22(a) PC, however, you must have committed…or aided and abetted…a felony with other gang members.  If you commit a felony on your own, you cannot be convicted under this section of California’s gang enhancement law.²⁷

9. California Penal Code 186-186.8, the “California Control of Profits of Organized Crime Act”

California has its own racketeering statute, the “California Control of Profits of Organized Crime Act” Penal Code 186-186.8, which provides for the forfeiture of profits acquired as a result of “criminal profiteering activity”.²⁸ This would fall under the umbrella of California asset forfeiture laws.

You violate the California Control of Profits of Organized Crime Act when you engage in a “pattern of criminal profiteering activity,” which is defined as:

• at least two related incidents of “criminal profiteering”;
• on behalf of a criminal enterprise;
• for financial gain or advantage.

The list of predicate acts that constitute “criminal profiteering” is similar to the list of acts punishable under the federal RICO statute, but also includes such crimes as:

• Pimping and pandering;
• Solicitation of crimes;
• Grand theft; and
• Forcing a minor into a sex act.²⁹

Forfeiture under the California Control of Profits of Organized Crime Act may be instead of… or in addition to…penalties for the crime of participating in a gang or for the underlying offenses.

10. No double jeopardy for convictions under both gang and underlying crime statutes

The double jeopardy clause of the Fifth Amendment prohibits successive prosecutions and multiple punishments for the same offense.³⁰

But, you can be punished under two different statutes based on the same conduct if the United States Congress or the California legislature intended the statutes to be distinct offenses and to impose a cumulative penalty separate from and in addition to what is authorized under other laws.

Thus, if you violate both RICO and VICAR, you can be punished under both statutes,³¹ as well as for violating the state and/or federal laws relating to the underlying offenses.³²

Similarly, if you violate STEP, the penalty will in addition to the punishment for committing, or aiding, the underlying felony crime(s).

11. Sentencing enhancements under the California Street Terrorism Enforcement and Prevention Act (“STEP”) Penal Code 186.22 PC(b)

If you are convicted of a felony in California, you will be subject to the criminal street gang sentencing enhancement under Penal Code 186.22(b) PC if:

1. You committed . . . or attempted . . . the crime for the benefit of, at the direction of, or in association with a criminal street gang; and
2. When you committed the crime, you intended to assist, further, or promote criminal conduct by members of the gang.³³

Although the crime of participation in a criminal street gang under STEP requires that you be in a gang and commit a crime with at least one other gang member, the penalty enhancement portion of STEP can apply even if you aren’t in a gang and even if you act alone.

12. Sentencing enhancements under 18 USC 521, the “Criminal Street Gangs” statute

Under 18 USC 521, the “Criminal Street Gangs” statute, if you are convicted of a crime (not necessarily racketeering) in federal court, you could receive a penalty enhancement of up to 10 years, if you:

1. participate in a “criminal street gang” (as defined in the statute) with knowledge that its members engage in or have engaged in a continuing series of serious offenses;
2. intend to promote or further the felonious activities of the criminal street gang or maintain or increase your position in the gang; and
3. have been convicted within the past 5 years of a serious state or federal crime.

Before a court may enhance your sentence under 18 USC 521(b), facts establishing that you participated in a criminal street gang with knowledge of its criminal activities, and in order to maintain or increase your position in the gang, must be:

• charged in the indictment;
• submitted to a jury; and
• proven beyond a reasonable doubt.³⁴

As a practical matter, it is challenging for a federal prosecutor to prove that an offender is a member of a criminal street gang as defined in 18 USC 521, or that a crime benefits a gang under its terms.³⁵

Defenses

Potentially helpful legal defenses to 18 USC 521 include (but are not limited to):

• You were not a member of the gang;
• The gang has not engaged in serious drug felonies or felonies involving violence;
• You did not know the gang you were in was engaged in a continuing series of felonies;
• You weren’t acting for the benefit of the gang or to improve your position within it;
• Your prior conviction has been pardoned or expunged;
• The activities of the gang do not affect interstate or foreign commerce.

Call us for help…

If you or a loved one is charged with gang-related crime and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

We also invite you to visit our page on federal laws for criminal street gangs in Nevada.

Legal References:

---

¹ Penal Code 186.22 PC – Participation in criminal street gang; penalty [California’s criminal street gang enhancement law]. (“(a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”)

² Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

³ Marc Agnifilo, Kathleen Bliss, and Bruce Riordan, Investigating and Prosecuting Gangs Using the Enterprise Theory, United State Attorneys’ Bulletin, May 2006, Volume 54, Number 3, p. 15.

⁴ See same.

⁵United States Attorneys’ Manual, Sections 9-110.310 Considerations Prior to Seeking Indictment, and 9-110.812 Specific Guidelines for Section 1959 Prosecutions.

⁶ California Penal Code 186.22(f) As used in this chapter, “criminal street gang” means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activitiesthe commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

⁷ 18 USC 1961(4)  “enterprise” includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; and

18 USC 1959(b)(2)  “enterprise” includes any partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity, which is engaged in, or the activities of which affect, interstate or foreign commerce.

See also, 10 Am. Jur. Proof of Facts 3d 289 (the enterprise must have a common or shared purpose, some continuity of personnel, and an ascertainable structure distinct from the pattern of racketeering).

⁸ See, U. S. v. Turkette, (1981) 452 U.S. 576, 583  (holding that to establish a RICO association-in-fact “enterprise,” the government must prove (1) an ongoing organization with a framework, formal or informal, for carrying outits objectives, and (2) that association members functioned as a continuing unit to achieve a common purpose); and Boyle v. United States, (2009) 556 U.S. 938 (while an association-in-fact enterprise under RICO must have a “structure,” it need not be “an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages.”).

⁹ See, e.g., Ninth Circuit Model Criminal Jury Instructions, Section 8.152 RACKETEERING ENTERPRISE—ENTERPRISE AFFECTING INTERSTATE COMMERCE—DEFINED (18 USC 1959).

¹⁰ 21 USC 848(c) “Continuing criminal enterprise” defined

For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if—
(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter—
(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and
(B) from which such person obtains substantial income or resources.

¹¹ See same.  See also, United States v. Juvenile Male, (9^thth Cir. 1997)  118 F.3^rdrd 1344 (all that is required to establish federal jurisdiction in a RICO prosecution is a showing that the individual predicate racketeering acts have a de minimis impact on interstate commerce);.

¹² Based on United States v. Nascimento, (1^stst Cir. 2007) 491 F.3d 25 (holding that firearms acquired by gang had been manufactured in another state and, thus, had moved in interstate commerce).

¹³ 18 USC 1962 provides, in relevant part:

(c) It shall be 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.

(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.

¹⁴ 18 USC   1961 – Definitions

As used in this chapter—
(1) “racketeering activity” means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; ((B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891–894 (relating to extortionate credit transactions), section 1028 (relating to fraud and related activity in connection with identification documents), section 1029 (relating to fraud and related activity in connection with access devices), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343(relating to wire fraud), section 1344 (relating to financial institution fraud), section 1425(relating to the procurement of citizenship or nationalization unlawfully), section 1426(relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship papers), sections 1461–1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), section 1542 (relating to false statement in application and use of passport), section 1543(relating to forgery or false use of passport), section 1544 (relating to misuse of passport), section 1546 (relating to fraud and misuse of visas, permits, and other documents), sections 1581–1592 (relating to peonage, slavery, and trafficking in persons)., [1] section 1951(relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful welfare fund payments), section 1955 (relating to the prohibition of illegal gambling businesses), section 1956 (relating to the laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity), section 1958 (relating to use of interstate commerce facilities in the commission of murder-for-hire), section 1960 (relating to illegal money transmitters), sections 2251, 2251A, 2252, and 2260 (relating to sexual exploitation of children), sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles), sections 2314 and 2315 (relating to interstate transportation of stolen property), section 2318 (relating to trafficking in counterfeit labels for phonorecords, computer programs or computer program documentation or packaging and copies of motion pictures or other audiovisual works), section 2319 (relating to criminal infringement of a copyright), section 2319A (relating to unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances), section2320 (relating to trafficking in goods or services bearing counterfeit marks), section 2321(relating to trafficking in certain motor vehicles or motor vehicle parts), sections 2341–2346 (relating to trafficking in contraband cigarettes), sections 2421–24 (relating to white slave traffic), sections 175–178 (relating to biological weapons), sections 229–229F (relating to chemical weapons), section 831 (relating to nuclear materials), (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501 (c) (relating to embezzlement from union funds), (D) any offense involving fraud connected with a case under title 11 (except a case under section 157 of this title), fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), punishable under any law of the United States, (E) any act which is indictable under the Currency and Foreign Transactions Reporting Act, (F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain, or (G) any act that is indictable under any provision listed in section 2332b (g)(5)(B).

¹⁵ Sedima, S.P.R.L. v. Imrex Co., Inc., (1985) 473 U.S. 479.

¹⁶ H.J., Inc. v. Northwestern Bell Tel. Co., (1989) 492 U.S. 229, 239, 109 S. Ct. 2893.

¹⁷ See same at 240.

¹⁸ 18 USC 1964(c) Any person injured in his business or property by reason of a violation of section1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is criminally convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which the conviction becomes final.

¹⁹ 18 USC   3571 – Sentence of fine

(a) In General.— A defendant who has been found guilty of an offense may be sentenced to pay a fine.
(b) Fines for Individuals.— Except as provided in subsection (e) of this section, an individual who has been found guilty of an offense may be fined not more than the greatest of—
(1) the amount specified in the law setting forth the offense;
(2) the applicable amount under subsection (d) of this section;
(3) for a felony, not more than $250,000;
(4) for a misdemeanor resulting in death, not more than $250,000;
(5) for a Class A misdemeanor that does not result in death, not more than $100,000;
(6) for a Class B or C misdemeanor that does not result in death, not more than $5,000; or
(7) for an infraction, not more than $5,000.
(c) Fines for Organizations.— Except as provided in subsection (e) of this section, an organization that has been found guilty of an offense may be fined not more than the greatest of—
(1) the amount specified in the law setting forth the offense;
(2) the applicable amount under subsection (d) of this section;
(3) for a felony, not more than $500,000;
(4) for a misdemeanor resulting in death, not more than $500,000;
(5) for a Class A misdemeanor that does not result in death, not more than $200,000;
(6) for a Class B or C misdemeanor that does not result in death, not more than $10,000; and
(7) for an infraction, not more than $10,000.
(d) Alternative Fine Based on Gain or Loss.— If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.
(e) Special Rule for Lower Fine Specified in Substantive Provision.— If a law setting forth an offense specifies no fine or a fine that is lower than the fine otherwise applicable under this section and such law, by specific reference, exempts the offense from the applicability of the fine otherwise applicable under this section, the defendant may not be fined more than the amount specified in the law setting forth the offense.

²⁰ 21 USC 848(c) “Continuing criminal enterprise” defined

For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if—
(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter—
(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and
(B) from which such person obtains substantial income or resources.

²¹ 21 USC 848(a) Penalties; forfeitures
Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment, to a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $2,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, and to the forfeiture prescribed in section 853of this title; except that if any person engages in such activity after one or more prior convictions of him under this section have become final, he shall be sentenced to a term of imprisonment which may not be less than 30 years and which may be up to life imprisonment, to a fine not to exceed the greater of twice the amount authorized in accordance with the provisions of title 18 or $4,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, and to the forfeiture prescribed in section 853 of this title.

²² 21 USC 848(b) Life imprisonment for engaging in continuing criminal enterprise
Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined in accordance with subsection (a) of this section, if—
(1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and
(2)(A) the violation referred to in subsection (c)(1) of this section involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title, or
(B) the enterprise, or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million dollars in gross receipts during any twelve-month period of its existence for the manufacture, importation, or distribution of a substance described in section841 (b)(1)(B) of this title.

²³ 21 USC 848(e) Death penalty
(1) In addition to the other penalties set forth in this section—
(A) any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841 (b)(1)(A) of this title or section 960 (b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death; and
(B) any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution or service of a prison sentence for, a felony violation of this subchapter or subchapter II of this chapter who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of any Federal, State, or local law enforcement officer engaged in, or on account of, the performance of such officer’s official duties and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death.(2) As used in paragraph (1)(B), the term “law enforcement officer” means a public servant authorized by law or by a Government agency or Congress to conduct or engage in the prevention, investigation, prosecution or adjudication of an offense, and includes those engaged in corrections, probation, or parole functions.

²⁴ Penal Code 186.22 PC – California’s criminal street gang enhancement law.  (“(e) As used in this chapter, “pattern of criminal gang activity” means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: (1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245. (2) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1. (3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1. (4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code. (5) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246. (6) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 26100. (7) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13. (8) The intimidation of witnesses and victims, as defined in Section 136.1. (9) Grand theft, as defined in subdivision (a) or (c) of Section 487. (10) Grand theft of any firearm, vehicle, trailer, or vessel. (11) Burglary, as defined in Section 459. (12) Rape, as defined in Section 261. (13) Looting, as defined in Section 463. (14) Money laundering, as defined in Section 186.10. (15) Kidnapping, as defined in Section 207. (16) Mayhem, as defined in Section 203. (17) Aggravated mayhem, as defined in Section 205. (18) Torture, as defined in Section 206. (19) Felony extortion, as defined in Sections 518 and 520. (20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of Section 594. (21) Carjacking, as defined in Section 215. (22) The sale, delivery, or transfer of a firearm, as defined in Section 12072. (23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of Section 12101. (24) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422. (25) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. (26) Felony theft of an access card or account information, as defined in Section 484e. (27) Counterfeiting, designing, using, attempting to use an access card, as defined in Section 484f. (28) Felony fraudulent use of an access card or account information, as defined in Section 484g. (29) Unlawful use of personal identifying information to obtain credit, goods, services, or medical information, as defined in Section 530.5. (30) Wrongfully obtaining Department of Motor Vehicles documentation, as defined in Section 529.7. (31) Prohibited possession of a firearm in violation of Section 29800. (32) Carrying a concealed firearm in violation of Section 25400. (33) Carrying a loaded firearm in violation of Section 25850.”)

²⁵ See same.

²⁶ People v. Gardeley, (1996) 14 Cal.4th 605, 621. (“Here, the relevant statutory language is clear and unambiguous. Section 186.22, subdivision (e) [California’s street gang enhancement law] defines “pattern of criminal gang activity” as “the commission, attempted commission, or solicitation of two or more” enumerated offenses occurring within a specified time period, and “committed on separate occasions, or by two or more persons.” Nothing in this statutory language suggests an intent by the Legislature to require the “two or more” predicate offenses to have been committed “for the benefit of, at the direction of, or in association with” the gang, as defendants contend.”)

²⁷ People v. Rodriguez, (2012) 55 Cal.4th 1125, 1153. (“Although the People might prefer a different statute, section 186.22(a) reflects the Legislature’s carefully structured endeavor to punish active participants for commission of criminal acts done collectively with gang members. Defendant here acted alone in committing the attempted robbery. Thus, he did not also violate section 186.22(a).”)

²⁸ Penal Code 186.3.  (a) In any case in which a person is alleged to have been engaged in a pattern of criminal profiteering activity, upon a conviction of the underlying offense, the assets listed in subdivisions (b) and (c) shall be subject to forfeiture upon proof of the provisions of subdivision (d) of Section 186.5.
(b) Any property interest whether tangible or intangible, acquired through a pattern of criminal profiteering activity.
(c) All proceeds of a pattern of criminal profiteering activity, which property shall include all things of value that may have been received in exchange for the proceeds immediately derived from the pattern of criminal profiteering activity.

²⁹ Penal Code 186.2.  For purposes of this chapter, the following definitions apply:

(a) “Criminal profiteering activity” means any act committed or attempted or any threat made for financial gain or advantage, which act or threat may be charged as a crime under any of the following sections:
(1) Arson, as defined in Section 451.
(2) Bribery, as defined in Sections 67, 67.5, and 68.
(3) Child pornography or exploitation, as defined in subdivision (b) of Section 311.2, or Section 311.3 or 311.4, which may be prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and 503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f, inclusive, and Section 337i, except the activities of a person who participates solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section 266.
(13) Receiving stolen property, as defined in Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section 653f.
(16) Grand theft, as defined in Section 487.
(17) Trafficking in controlled substances, as defined in Sections 11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate securities, as defined in Section 25541 of the Corporations Code.
(19) Any of the offenses contained in Chapter 7.5 (commencing with Section 311) of Title 9, relating to obscene matter, or in Chapter 7.6 (commencing with Section 313) of Title 9, relating to harmfulmatter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim, as defined in Section 550.
(21) False or fraudulent activities, schemes, or artifices, as described in Section 14107 of the Welfare and Institutions Code.
(22) Money laundering, as defined in Section 186.10.
(23) Offenses relating to the counterfeit of a registered mark, as specified in Section 350.
(24) Offenses relating to the unauthorized access to computers, computer systems, and computer data, as specified in Section 502.
(25) Conspiracy to commit any of the crimes listed above, as defined in Section 182.
(26) Subdivision (a) of Section 186.22, or a felony subject to enhancement as specified in subdivision (b) of Section 186.22.
(27) Any offenses related to fraud or theft against the state’s beverage container recycling program, including, but not limited to, those offenses specified in this subdivision and those criminal offenses specified in the California Beverage Container Recycling and Litter Reduction Act, commencing at Section 14500 of the PublicResources Code.
(28) Human trafficking, as defined in Section 236.1.
(29) Any crime in which the perpetrator induces, encourages, or persuades a person under 18 years of age to engage in a commercial sex act. For purposes of this paragraph, a commercial sex act means any sexual conduct on account of which anything of value is given or received by any person.
(30) Any crime in which the perpetrator, through force, fear, coercion, deceit, violence, duress, menace, or threat of unlawful injury to the victim or to another person, causes a person under 18 years of age to engage in a commercial sex act. For purposes of this paragraph, a commercial sex act means any sexual conduct on account of which anything of value is given or received by any person.
(31) Theft of personal identifying information, as defined in Section 530.5.
(32) Offenses involving the theft of a motor vehicle, as specified in Section 10851 of the Vehicle Code.
(33) Abduction or procurement by fraudulent inducement for prostitution, as defined in Section 266a.
(b) (1) “Pattern of criminal profiteering activity” means engaging in at least two incidents of criminal profiteering, as defined by this chapter, that meet the following requirements:
(A) Have the same or a similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics.
(B) Are not isolated events.
(C) Were committed as a criminal activity of organized crime.
(2) Acts that would constitute a “pattern of criminal profiteering activity” may not be used by a prosecuting agency to seek the remedies provided by this chapter unless the underlying offense occurred after the effective date of this chapter and the prior act occurred within 10 years, excluding any period of imprisonment, of the commission of the underlying offense. A prior act may not be used by a prosecuting agency to seek remedies provided by this chapter ifa prosecution for that act resulted in an acquittal.
(c) “Prosecuting agency” means the Attorney General or the district attorney of any county.
(d) “Organized crime” means crime that is of a conspiratorial nature and that is either of an organized nature and seeks to supply illegal goods and services such as narcotics, prostitution, loan-sharking, gambling, and pornography, or that, through planning and coordination of individual efforts, seeks to conduct the illegal activities of arson for profit, hijacking, insurance fraud, smuggling, operating vehicle theft rings, fraud against the beverage container recycling program, or systematically encumbering the assets of a business for the purpose of defrauding creditors. “Organized crime” also means crime committed by a criminal street gang, as defined in subdivision (f) of Section 186.22. “Organized crime” also means false or fraudulent activities, schemes, or artifices, as described in Section 14107 of the Welfare and Institutions Code, and the theft of personal identifying information, as defined in Section530.5.
(e) “Underlying offense” means an offense enumerated in subdivision
(a) for which the defendant is being prosecuted.

³⁰United States Constitution, Amendment V provides: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

³¹ See, e.g., United States v. Ayala (4th Cir. 2010) (holding that there is no Double Jeopardy bar to punishing a defendant for both a murder conspiracy under   1959(a)(5) and a racketeering conspiracy under   1962(d) when the offenses arise out of the same course of conduct); United States v. Nascimento, 491 F.3d 25, 48 (1st Cir. 2007) (holding that a defendant may be punished for both a VICAR conspiracy and a substantive RICO offense; United States v. Merlino, 310 F.3d 137, 141 (3d Cir. 2002) (holding that because a VICAR offense requires proof of an element that the RICO offense does not, and vice-versa, they are different offenses for the purposes of the Double Jeopardy Clause).

³²United States v. Solano (9th Cir. 1979), 605 F.2d 1141 cert denied, (1980) 444 U.S. 1020 (holding that because racketeering activity in the abstract does not necessarily involve drug related activity, a defendant could be prosecuted for both RICO and the underlying predicate drug conspiracy charge).  This is consistent with holdings in other jurisdictions. See, e.g., United States v. Espositio, 968 F.2d 300 (3rd Cir. 1991) (holding that substantive narcotics offenses listed as predicate acts of the RICO charge in which the defendant was acquitted were not the same offense as the RICO charge for the purpose of double jeopardy); United States v. Mahdi (DC Cir. Court of Appeals 2009) (holding that because a VICAR violation is not the “same offense” as state law counts charging possession of a firearm during a crime of violence, neither is a lesser included offense of the other).

³³ CALCRIM 1401 – Felony or Misdemeanor Committed for Benefit of Criminal Street Gang [gang sentencing enhancement]. (“To prove this allegation, the People must prove that: 1 The defendant (committed/ [or] attempted to commit) the crime (for the benefit of[,]/ at the direction of[,]/ [or] in association with) a criminal street gang; AND 2 The defendant intended to assist, further, or promote criminal conduct by gang members.”)

³⁴ United States v. Matthews, 312 F.3d 652 (5th Cir. 2002), cert. denied, 538 U.S. 938(2003) (upholding a penalty enhancement based on convictions for his sentences for convictions of carjacking and conspiracy to commit carjacking, where the facts serving as the basis of the Criminal Street Gangs statute were charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt).  The Matthews court was applying Apprendi v. New Jersey 530 U.S. 466 (2000), in which the Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

See also, Jennifer E. Fleming, Your Honor, I Seen Him with That Gang: The Constitutionality of the Federal Criminal Street Gang Statute in the Wake of Apprendi v. New Jersey, 18 Wm. & Mary Bill Rts. J. 249 (2009).

³⁵ See, Department of Justice Criminal Resource Manual 1457.