dissenting.
I respectfully dissent on the issue of whether the RICO conviction can stand on its own merits apart from the underlying offenses used to prove the five counts of coercion against appellant. I find the evidence is insufficient to sustain the conviction under the Minnesota Racketeer Influenced and Corrupt Organizations Act (RICO), Minn.Stat. §§ 609.901-.912 (1990).
A person is guilty of racketeering, as a separate and defineable offense apart from the underlying or predicate acts, if the person
is employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity.
Minn.Stat. § 609.903, subd. 1(1) (1990) (emphasis added). An “enterprise” is defined as
a sole proprietorship, partnership, corporation, trust, or other legal entity, or a union, governmental entity, association, or group of persons, associated in fact although not a legal entity, and includes illicit as well as legitimate enterprises.
Minn.Stat. § 609.902, subd. 3 (1990).
The majority and I agree on the federal cases to examine for guidance. In United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the Supreme Court had occasion to define the term “enterprise” and to distinguish an enterprise from “a pattern of criminal activity.” In holding that a wholly criminal enterprise could constitute an enterprise pursuant to RICO, the Court stated:
That a wholly criminal enterprise comes within the ambit of the statute does not mean that a “pattern of racketeering activity” is an “enterprise.” In order to secure a conviction under RICO, the Government must prove both the existence of an “enterprise” and the connected “pattern of racketeering activity.” The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. * * * [An enterprise] is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. [A pattern of racketeering activity] is proved *486by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity;” it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government.
Turkette, 452 U.S. at 583, 101 S.Ct. at 2528-29 (emphasis added). Thus, to establish the enterprise the state must show something more than simply the predicate acts of racketeering. I do not find that “something more” in this case.
The enterprise must have a common or shared purpose, continuity of structure and personnel, and an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering. See United States v. Kragness, 830 F.2d 842, 855 (8th Cir.1987) (citing Turkette, 452 U.S. at 583, 101 S.Ct. at 2528); United States v. Lemm, 680 F.2d 1193, 1198 (8th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 739, 74 L.Ed.2d 960 (1983); United States v. Bledsoe, 674 F.2d 647, 664-65 (8th Cir.1982), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982).
I simply do not find the state proved, by proof beyond a reasonable doubt, the existence of a separate and distinct “enterprise,” namely, an independent entity existing separately and distinctly from the pattern of criminal activity — the repeated coercion. RICO was intended to facilitate prosecution of people involved in true organized crime. Turkette, 452 U.S. at 586, 588-89, 101 S.Ct. at 2530, 2531-32; Bledsoe, 674 F.2d at 662 (RICO not intended for prosecution of criminals who merely associate together and commit two or more of the specified crimes).
By definition, whenever two or more people run afoul of Minnesota’s conspiracy statute, Minn.Stat. § 609.175 (1990), and/or Minnesota’s “aiding and abetting” statute, Minn.Stat. § 609.05 (1990), you will have a small or large group of people planning a crime, what they will do when they get to the scene, and usually how they will get away and divide the proceeds. At oral argument, I asked the prosecutor whether, under Minnesota’s RICO Act, whenever two or more people were convicted of committing three or more crimes (see Minn. Stat. § 609.902, subd. 6) together under Minnesota’s aiding and abetting statute, would there always be a RICO violation as well. The prosecutor candidly answered, “Yes.” I appreciate the candor. However, since both Minnesota and the federal government have for decades been able to prove people guilty of crimes by showing aiding and abetting, or otherwise conspiring, it has to be that the RICO statutes at both the federal and state level were not intended to be superfluous and redundant. The applicable federal cases, relied on by the majority as well as this dissent, set out the government’s need to show an organized criminal enterprise, not just unofficial and unorganized cooperation by two or more people.
Here, the evidence relied upon by the state in determining there was an enterprise was as follows: appellant told the victim he was a member of a “gang” and the gang would enforce his threats; appellant modified the original instruction to the victim to pay by check by subsequently instructing the victim to pay by money order; appellant agreed to grant the victim’s request for a reduction in payments after leaving the restaurant for five to ten minutes and then returning; and some of the money was laundered through a supermarket owned by a man named Trong.
This evidence is not sufficient to establish by proof beyond a reasonable doubt a distinct and definable enterprise apart from the acts of coercion at hand. The actual existence of a gang with a definitive separate structure apart from appellant’s acts of coercion, and appellant’s membership therein, were never proven. There were no organizational charts regarding the structure of a gang introduced into evidence. Nor was it proven there was some sort of *487“enforcement arm” of a gang that would enforce appellant’s threats if the victim failed to meet appellant’s demands. The state did not prove a gang actually stood by ready to enforce the extortion demands. Furthermore, although appellant modified his instructions to the victim and the demands he made on the victim, the state did not prove he made those modifications based upon anyone’s authority other than his own.
The evidence does show some of the money obtained by coercion was laundered. However, the evidence does not establish how it was laundered. More importantly, there is nothing in the record that would show the laundering of the money was anything more than a way for appellant to collect the proceeds from the coercions. That is, the evidence does not show appellant was associated with a money laundering organization distinct from appellant’s acts with this one victim. Furthermore, the evidence does not show whether proceeds from other victims of coercion were being laundered in the same way. Although this fact, if established, would not necessarily be dispositive, it would be supportive of a finding of an enterprise in that it would go to show that this case involved “something more” than five separate acts of coercion by appellant.
As a separate element of a RICO crime, the state bears the burden of proving the existence of an enterprise. Although the facts here proven perhaps hint at the existence of an enterprise, suspicion can never substitute for proof beyond a reasonable doubt in a criminal case. The record does not prove anything other than appellant committed five separate coercions against a single victim. The fact some of the money was laundered establishes nothing more than the fact that the money taken away from the victim was laundered. The facts presented are not sufficiently linked in a way which shows the existence of a separate enterprise within the meaning of RICO.
I would reverse the RICO conviction for lack of evidence and remand for appropriate sentencing on the five individual coercion accounts. Because I conclude the RICO offense cannot stand for lack of sufficient evidence, I do not address the issue of separate sentencing on the coercions and the RICO offense. I concur with the majority on the Hernandez issue.