§842-2  Ownership or operation of business
by certain persons prohibited.  It shall be unlawful:



(1)  For any person who has received any income
derived, directly or indirectly, from a racketeering activity or through
collection of an unlawful debt, to use or invest, directly or indirectly, any
part of such income, or the proceeds of such income, in the acquisition of any
interest in, or the establishment or operation of, any enterprise.



(2)  For any person through a racketeering activity or
through collection of an unlawful debt to acquire or maintain, directly or
indirectly, any interest in or control of any enterprise.



(3)  For any person employed by or associated with any
enterprise to conduct or participate in the conduct of the affairs of the enterprise
through racketeering activity or collection of an unlawful debt. [L 1972, c 71,
pt of §2]



 



Case Notes



 



  In class action brought against major cigarette
manufacturers, tobacco trade associations, and the industry's public relations
firm, first amended complaint asserted violations of federal RICO statutes;
Hawaii's RICO statute (this section); federal antitrust statutes; Hawaii's
antitrust act, chapter 480; various state common-law torts; and false
advertising under §708-871; defendants' motion to dismiss for failure to state
a claim granted, where injuries alleged by plaintiffs trust funds in first
amended complaint were not direct; even if remoteness doctrine did not bar
claims, claims failed for other reasons.  52 F. Supp. 2d 1196.



  Under paragraph (3), an "enterprise" must (1) have
a common or shared purpose, (2) be an ongoing organization with continuity of
structure and personnel, and (3) have an ascertainable structure distinct from
that inherent in the conduct of the racketeering activity.  84 H. 56, 929 P.2d
69.



  Definition of "associated with" in paragraph (3)
includes (1) participation in the operation, management or conduct of the
enterprise itself; (2) whether directly or indirectly; and (3) regardless of a
stake or interest in the goals of the enterprise.  84 H. 211, 933 P.2d 48.



  Section does not implicate First Amendment concerns because
it is neither directed at, nor does it regulate or proscribe First Amendment
freedoms, i.e., membership in a political organization or certain beliefs held
by an individual.  84 H. 211, 933 P.2d 48.



  Term "associated with" in paragraph (3) not
unconstitutionally vague under Hawaii constitution.  84 H. 211, 933 P.2d 48.



  Section 701-109(1)(d) prohibits conviction under both
paragraph (2) and §712-1203, as both paragraph (2) and §712-1203 seek to
redress the same conduct--the control of an enterprise involved in criminal
activity.  In such case, the specific statute, §712-1203, governs over this
section, the general statute.  88 H. 19, 960 P.2d 1227.



  Where (1) no evidence that defendant and one or both of
brothers shared a common goal or objective, (2) only defendant's reference to
the "big boss" tied defendant to an ongoing organization with a
system of authority directing individuals in furtherance of the alleged group
goals of controlling gambling and drugs, and (3) no evidence of an
ascertainable structure distinct from the alleged act of extortion or that an
ongoing organization existed, evidence insufficient for purposes of paragraph
(3) and the definition of "enterprise".  103 H. 68 (App.), 79 P.3d
686.