Continuity of predicate acts (closed-ended or open-ended continuity)

AND · 18usc1962:pattern.continuity

"Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.

Exact element source

a pattern of racketeering activity
Source: docroot/ir/usc/title18.jsonl#title18_sec1962; Unicode character offsets [135:169] (end exclusive); SHA-256 6caae47f43b5ab0899b660616e298363bd36f9f540d915c2be11eb7126f5e27d.

All variants

Recorded DB variant labels, including zero-count variants
VariantDescriptionMerits instance blocksDistinct casesExample cases (up to 3 per group)
continuity/closed-ended-too-short1
Satisfied 0; not satisfied 1; excluded context 1
1/f2d/976/1016-01 — United States Court of Appeals for the Seventh Circuit · 1992 — not

Excluded context examples: /f3d/660/0346-01 — United States Court of Appeals for the Eighth Circuit · 2011 — applied/alternative

continuity/cover-up-does-not-extend-scheme1
Satisfied 0; not satisfied 1; excluded context 0
1/f2d/976/1016-01 — United States Court of Appeals for the Seventh Circuit · 1992 — not
continuity/open-ended-conclusory-threat0
Satisfied 0; not satisfied 0; excluded context 1
0No counted merits examples

Excluded context examples: /f3d/660/0346-01 — United States Court of Appeals for the Eighth Circuit · 2011 — applied/alternative

continuity/open-ended-no-threat-scheme-ended-with-employment1
Satisfied 0; not satisfied 1; excluded context 0
1/f2d/976/1016-01 — United States Court of Appeals for the Seventh Circuit · 1992 — not

How courts decided this element

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopeVariantExact source quotations
/f2d/976/1016-01 — United States Court of Appeals for the Seventh Circuit · 1992Continuity of predicate acts (closed-ended or open-ended continuity)not
Counted merits instance
applied / merits

basis: no-evidence; claim: (c),(d); count: the diversion scheme (customers and employees moved from Midwest to U.S. Grinding); theory: closed-ended continuity; subject: count=the diversion scheme (customers and employees moved from Midwest to U.S. Grinding); theory=closed-ended continuity

Single scheme, single victim, single injury, at most nine months (footnote: really three to four); hundreds of similar mailings do not add continuity. Summary judgment for defendants: plaintiff's evidence insufficient as a matter of law.
continuity/closed-ended-too-short
in June 1986, for example, Spitz fired or laid off Midwest’s entire night shift of six workers, several of whom mysteriously reappeared as employees of U.S. Grinding
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [2245:2410] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Here, the effort to divert Midwest’s customers and employees was a one-shot scheme that lasted, at most, nine months, from the time Spitz and Grun-feld began doing the groundwork to establish U.S. Grinding (December 1985) to the time Spitz resigned (August 1986).
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [24647:24910] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The predicate acts consisted primarily of hundreds of invoices sent through the mails to former Midwest customers.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [27087:27201] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

There was only one victim (Midwest), see, e.g., J.D. Marshall, 935 F.2d at 819, one scheme (the diversion of customers and employees from Midwest to U.S. Grinding), see, e.g., Sutherland, 882 F.2d at 1204 (no pattern where defendant engaged in a “one-shot” effort to inflict injury), and one type of injury (loss of business).
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [28395:28721] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

To satisfy the continuity element in a closed-ended case, the plaintiff must prove a series of related predicates enduring a “substantial period of time.”
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [19762:19916] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

According to Mor gan, continuity is a function of the duration of time over which the predicate acts were committed, the number and variety of predicate acts, the number of victims, the presence of separate schemes, and the occurrence of distinct injuries.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [24093:24349] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Although the sheer number of predicate acts might appear at first glance to prove continuity, when it comes to a pattern premised on acts of mail or wire fraud, the volume of mailings is not dispositive.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [27202:27405] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

This closed-ended scheme has none of the trappings of a long-term criminal operation that carries with it a threat to society; it is, in short, a run-of-the mill fraud case that belongs in state court.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [28766:28967] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f2d/976/1016-01 — United States Court of Appeals for the Seventh Circuit · 1992Continuity of predicate acts (closed-ended or open-ended continuity)not
Counted merits instance
applied / merits

basis: no-evidence; claim: (c),(d); count: the diversion scheme; theory: open-ended continuity (threat of repetition after Spitz left Midwest); subject: count=the diversion scheme; theory=open-ended continuity (threat of repetition after Spitz left Midwest)

Disloyal-insider scheme has a natural end point: once the insider resigns, competing is lawful, so no threat of future racketeering.
continuity/open-ended-no-threat-scheme-ended-with-employment
That reassurance notwithstanding, Spitz resigned from Midwest in August 1986 and immediately went to work for U.S. Grinding.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [2905:3029] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

As will later become relevant, Spitz’s relationship with Midwest was not governed by a non-competition or confidentiality agreement, which would have prevented him from competing with Midwest or soliciting its customers in the event he left its employ.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [941:1193] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Such a threat of continuity exists when the plaintiff can show (1) a “specific threat of repetition,” (2) that the “predicate acts or offenses are part of an ongoing entity’s regular way of doing business,” or (3) that the defendant operates a “long-term association that exists for criminal purposes.”
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [20458:20760] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 1 (1 = tagged; 0 = not tagged)

Absent a non-competition or confidentiality clause, Spitz owed no duty to Midwest; thus, the alleged scheme to fraudulently divert business and employees to U.S. Grinding ceased to exist in August 1986 when Spitz left Midwest.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [22064:22290] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Second, Midwest has failed to present any evidence that the predicate acts here are part of the defendants’ “regular way of doing business,” or that Spitz and Grunfeld routinely raided competitors in this fashion.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [22291:22504] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f2d/976/1016-01 — United States Court of Appeals for the Seventh Circuit · 1992Continuity of predicate acts (closed-ended or open-ended continuity)not
Counted merits instance
applied / merits

basis: no-evidence; claim: (c),(d); count: the litigation cover-up (false deposition testimony and mailed responses to requests to admit); theory: later concealment extends the duration of the scheme; subject: count=the litigation cover-up (false deposition testimony and mailed responses to requests to admit); theory=later concealment extends the duration of the scheme

Predicate status of the cover-up acts assumed arguendo; later concealment does not lengthen a closed-ended scheme unless plotted in advance. Was [assumed]: what is assumed arguendo is only the predicate status of the cover-up acts (see racketeering.obstruction). The continuity ruling itself is summary judgment -- "not a trace of evidence" that concealment was plotted in advance.
continuity/cover-up-does-not-extend-scheme
For example, Spitz and Grunfeld denied under oath that they went to Michigan together to acquire machinery for U.S. Grinding.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [16657:16782] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Midwest contends that the responses to their requests to admit, which were sent through the mails, constituted mail fraud and, therefore, can serve as predicate acts.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [16914:17080] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

A conspiracy ends when the design to commit substantive misconduct ends; it does not continue beyond that point “merely because the conspirators take steps to bury their traces, in order to avoid detection and punishment after the central criminal purpose has been accomplished.”
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [26383:26662] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

even if we assume actions to hide Spitz’s involvement with U.S. Grinding qualify as predicate acts, they do nothing to extend the duration of the underlying diversion scheme
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [25848:26021] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/660/0346-01 — United States Court of Appeals for the Eighth Circuit · 2011Continuity of predicate acts (closed-ended or open-ended continuity)not
Excluded from merits counts
applied / alternative

basis: pleaded; claim: (c); theory: closed-ended continuity; subject: theory=closed-ended continuity

Eighth Circuit bright-ish line: closed-ended continuity needs about a year; under seven months (single investor, one dealership) fails as a matter of law.
continuity/closed-ended-too-short
In December 2003, Randall Robb (Robb), doing business as Crest, was approached by business acquaintance Larry Myers (Myers) about purchasing third-party auto sales contracts and promissory notes (Loan Accounts) from On Time Auto, Inc. (On Time Auto).
Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [629:879] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

In June 2004, Myers unilaterally withdrew from the day-to-day operations of On Time Auto and used the entire amount in the Reserve Account ($40,000) for his own purposes.
Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [3450:3620] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

We have held that closed-ended continuity “can be shown by related acts continuing over a period of time lasting at least one year____”
Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [23781:23916] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 1 (1 = tagged; 0 = not tagged)

The complaint also fails to satisfy the continuity element alleging a scheme that began in December 2003 and continued until June 2004, a period of less than seven months.
Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [23609:23780] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The scheme allegedly lasted less than seven months, which is legally insufficient “to constitute the requisite pattern of racketeering activity.”
Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [24081:24226] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/660/0346-01 — United States Court of Appeals for the Eighth Circuit · 2011Continuity of predicate acts (closed-ended or open-ended continuity)not
Excluded from merits counts
applied / alternative

basis: pleaded; claim: (c); theory: open-ended continuity; subject: theory=open-ended continuity

Unnamed "multiple victims" and labels like "ongoing scheme" do not plead a threat of future repetition.
continuity/open-ended-conclusory-threat
Plaintiffs argue the district court failed to “recognize the true nature of the Defendants’ long term threat not only to Plaintiffs but as to the multiple victims over a significant period of time”
Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [18651:18848] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

We reject Plaintiffs’ conclusory assertion that Defendants’ activities constituted an open-ended fraudulent scheme because the “true nature of the Defendants’ long term threat [was] not only [as] to Plaintiffs but as to the multiple victims over a significant period of time.”
Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [24804:25080] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Court interpretations

interpretation

To satisfy the continuity element in a closed-ended case, the plaintiff must prove a series of related predicates enduring a “substantial period of time.”

/f2d/976/1016-01 — United States Court of Appeals for the Seventh Circuit · 1992

To satisfy the continuity element in a closed-ended case, the plaintiff must prove a series of related predicates enduring a “substantial period of time.”
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [19762:19916] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

"Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.

interpretation

Such a threat of continuity exists when the plaintiff can show (1) a “specific threat of repetition,” (2) that the “predicate acts or offenses are part of an ongoing entity’s regular way of doing business,” or (3) that the defendant operates a “long-term association that exists for criminal purposes.”

/f2d/976/1016-01 — United States Court of Appeals for the Seventh Circuit · 1992

Such a threat of continuity exists when the plaintiff can show (1) a “specific threat of repetition,” (2) that the “predicate acts or offenses are part of an ongoing entity’s regular way of doing business,” or (3) that the defendant operates a “long-term association that exists for criminal purposes.”
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [20458:20760] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

"Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.

interpretation

According to Mor gan, continuity is a function of the duration of time over which the predicate acts were committed, the number and variety of predicate acts, the number of victims, the presence of separate schemes, and the occurrence of distinct injuries.

/f2d/976/1016-01 — United States Court of Appeals for the Seventh Circuit · 1992

According to Mor gan, continuity is a function of the duration of time over which the predicate acts were committed, the number and variety of predicate acts, the number of victims, the presence of separate schemes, and the occurrence of distinct injuries.
Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [24093:24349] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.

"Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.

interpretation

We have held that closed-ended continuity “can be shown by related acts continuing over a period of time lasting at least one year____”

/f3d/660/0346-01 — United States Court of Appeals for the Eighth Circuit · 2011

We have held that closed-ended continuity “can be shown by related acts continuing over a period of time lasting at least one year____”
Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [23781:23916] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.

"Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.