1The Appellants are Word of Faith World Outreach Center Church, Inc. ("WOF, Inc.") and

Word of Faith World Outreach Center Church. In March 1992, WOF, Inc. transferred all its

assets to the Church and thereafter dissolved. Appellants will be collectively referred to as the

"Church" or "Appellant." 

United States Court of Appeals,

Fifth Circuit.

No. 95-10218.

WORD OF FAITH WORLD OUTREACH CENTER CHURCH, INC., A dissolved Corporation

on behalf of its members; Word of Faith World Outreach Center Church, a Church on Behalf of its

Members, Plaintiffs-Appellants,

v.

Diane SAWYER, An individual; Capital Cities/ABC Inc., A New York Corporation; American

BroadcastingCompanies, Inc., ADelawareCorporation; ABC News, Inc., A Delaware Corporation;

Robbie Gordon, An individual; Kelly Sutherland, An individual; Jeff Cooke; Trinity Foundation,

Inc., A Texas non-profit Corporation; Ole Anthony, An individual; Harry Guetzlaff, An individual;

Powell Holloway, An individual; John Does, and/or Jane 1-30, Defendants-Appellees,

A H Belo Corp., A Texas Corporation; WFAA-TV, Inc., A Texas Corporation; Bill Brown;

Dallas Morning News, Inc., A Texas Corporation; Ed Housewright, An individual; Steve Blow, An

individual; Ed Bark, An individual, Defendants.

Aug. 7, 1996.

Appeal from the United States District Court for the Northern District of Texas.

Before REYNALDO G. GARZA, JONES and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This lawsuit began as a result of critical television reports on the weekly ABC news program

PrimeTime Live concerning Reverend Robert Tilton and Word of Faith World Outreach Center

Church. The Church and Word of Faith World Outreach Center Church, Inc. appeal the decision of

the district court dismissing their claims against ABC and others who assisted ABC in preparing the

shows for violation of the RICO statute and a federal civil rights statute. 42 U.S.C. § 1985(3). We

affirm.

I. BACKGROUND

The facts are distilled from appellants' pleadings. Word of Faith World Outreach Center

Church is a Christian church based in Farmers Branch, Texas, a suburb of Dallas.1 Robert Tilton is
the Church's head pastor, and central to the Church's beliefs is the importance of tithing and making

vows to God. The Church teaches that expressions of faith as manifested by financial vows to God,

through the Church, are rewarded by God with physical, spiritual, and financial prosperity. At the

peak of the Church's popularity, approximately 8,000 people regularly attended services, with an

additional national television audience estimated in the hundreds of thousands.

In addition to weekly services and television broadcasts, the Church on a regular basis mails

items of correspondence to members who have asked that their names be placed on the Church's

mailing list. Often, these mailings include materials that the member can return to the Church in an

enclosed preaddressed envelope,such as a prayer cloth or prayer request, and whichReverend Tilton

has promised to pray over. The Church classifies mail returned as a result of these mailings as

"regular mail." The Church also routinely receives unsolicited pieces of mail, known by the Church

as "white mail."

In the spring of 1991, journalists working for ABC's weekly news program PrimeTime Live

("PrimeTime" ) began an investigation of Tilton. PrimeTime's investigation was aided by Ole

Anthony and others affiliated with the Trinity Foundation, Inc., a non-profit corporation founded by

Anthony for the purpose of supporting Christ centered communication projects. Anthony is

passionately opposed to some televangelists, including Tilton.

On November 21, 1991, PrimeTime broadcast a report concerning three televangelists,

including Tilton, that was highly critical of Tilton and his fund-raising practices. A week later,

PrimeTime broadcast a brief update reporting reactions to the November 21 broadcast. On July 9,

1992, the originalNovember 21 programwasrebroadcast, with certain minor changes, together with

a follow-up report. PrimeTime's ratings, which had been low, significantly improved following the

Tilton broadcast.

The theme of the broadcasts was that Tilton personally acquired millions of dollars of

donations sent to the Church, and that he never prayed over thousands of prayer requests.

PrimeTime's claim that Tilton failed to pray over the prayer requests derived from prayer requests

purportedly found during "trash sweeps" conducted by persons affiliated with the Trinity Foundation
at the direction of ABC representatives.

The Church disputes PrimeTime's claim that prayer requests where thrown away before the

promised prayers by Tilton. As evidence, the Church points to its sophisticated document and

financial accounting system which accounts for every piece of mail received and its contents. This

system involves a bank and a mail-handling contractor, and the Church asserts that it can establish

that none of the prayer requestsreportedly found in the trash could have been found at the times and

places claimed by those who carried out the "trash sweeps." Instead, the Church claims, the items

depicted in the trash consist of: (1) Church mailings received directly by ABC operatives who had

placed their names on the Church's mailing lists, and which were never mailed back to the Church;

(2) items obtained from the Church by the defendants while attending worship services, and which

also were never mailed back to the Church; (3) "regular mail" and other items stolen by the

defendants from the bank and mail-handling contractor; and (4) "white mail" stolen from either the

bank or the Church.

Following the broadcast, Church membership and financial giving dropped sharply. This, in

turn, required the Church to close its television ministry and reduce its outreach ministry.

Additionally, since the PrimeTime broadcasts, the Church has been investigated by numerous local,

state, and federal authorities.

In November 1993, the Church brought suit on behalf of its members against Capital

Cities/ABC, Inc., Diane Sawyer, co-anchor ofPrimeTime, the TrinityFoundation, Ole Anthony, and

several other business entities and persons associated with the broadcasts. The Church alleged that

through a pattern of racketeering acts ABC and the other defendants sought to drive the Church out

of business. The alleged racketeering acts included interstate transportation of stolen computer disks;

theft of donations, Church mail, and other Church property by certain defendants or by bank,

mail-handling, or Church employees who had been persuaded to help the defendants; wire fraud in

the form of false statements made during broadcasts; a scheme to deprive the Church, its bank, its

mail-handling contractor, and its law firm of the honest services of its loyal employees; and

obstruction of justice. Additionally, the Church sought recovery pursuant to 42 U.S.C. § 1985(3),
 

2

18 U.S.C. § 1962(c) provides:

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. 

claiming defendants conspired to deprive the Church and its members of their right to exercise their

religious beliefs.

All defendants moved to dismissfor failure to state a claim upon which relief can be granted.

The district court grant ed the motions, finding that the Church failed to plead a pattern of

racketeering activity, and that conspiracies motivated by religious animus are not actionable under

§ 1985(3). The Church appeals.

II. DISCUSSION

A. Standard of Review

 We review de novo the district court's dismissal for failure to state a claim. Capital Parks,

Inc. v. Southeastern Advertising and Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir.1994). The district

court's decision may be upheld "only ifit appearsthat no relief could be granted under any set of facts

that could be proven consistent with the allegations." Rubinstein v. Collins, 20 F.3d 160, 166 (5th

Cir.1994) (internal quotation and citation omitted). We accept as true all well-pleaded facts, and

view them in the light most favorable to the non-moving party. Capital Parks, 30 F.3d at 629.

B. Racketeering Claims

The Church alleges the defendants violated 18 U.S.C. § 1962(c) and (d) of the Racketeer

Influence and Corrupt Organization Act (RICO), 18 U.S.C. §§ 1961-1968. Subsection 1962(c)

prohibits persons employed by or associated with any enterprise from conducting or participating in

the enterprise's affairsthrough a pattern of racketeering.2 Subsection 1962(d) prohibits a conspiracy

to violate 18 U.S.C. § 1962(a), (b), or (c). Under both subsections, RICO claims require "1) a person

who engages in 2) a pattern of racketeering activity, 3) connected to the acquisition, establishment,

conduct, or control of an enterprise." In re Burzynski, 989 F.2d 733, 741-42 (5th Cir.1993) (quoting

Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 242 (5th Cir.1988), cert. denied, 489
 

3Appellees would also sustain the district court's judgment on the grounds that the Church did

not plead either "predicate acts" or injury, requirements of RICO that have particular legal

characteristics. We do not reach these issues, although it should be evident that by predicating

our holding on RICO's pattern requirement, we do not accept ABC's blanket contention that a

RICO claim can never arise from a television broadcast. 

U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989)).

The central issue on appeal is whether the Church sufficiently pled a "pattern of racketeering

activity."3 "Racketeering activity" consists of two or more predicate offenses, defined by the statute

to include acts violating federal wire or mailfraud statutes. 18 U.S.C. § 1961. To establish a pattern

of racketeering activity, the Supreme Court explained in H.J. Inc. v. Northwestern Bell Telephone,

Co. 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989), that a plaintiff "must show that the

racketeering predicates are related, and that they amount to or pose a threat of continued criminal

activity." Id. at 239, 109 S.Ct. at 2900 (emphasis added). The element of relatedness is established

if the acts have the "same or similar purposes, results, participants, victims, or methods of

commission." Id. at 240, 109 S.Ct. at 2901 (internal quotation and citation omitted). To establish

continuity, plaintiffs must prove "continuity of racketeering activity, or its threat." Id. at 241, 109

S.Ct. at 2902. This may be shown by either a closed period of repeated conduct, or an open-ended

period of conduct that "by its nature projects into the future with a threat of repetition." Id. at 241,

109 S.Ct. at 2902. A closed period of conduct may be demonstrated "by proving a series of related

predicat es extending over a substantial period of time." Id. at 242, 109 S.Ct. at 2902. An open

period of conduct involvesthe establishment of "a threat of continued racketeering activity." Id. This

may be shownwhere there exists a "specific threat ofrepetition extending indefinitelyinto the future,"

or "where it is shown that the predicates are a regular way of conducting defendant's ongoing

legitimate business." Id. at 242-43, 109 S.Ct. at 2903. The Court stated that in enacting RICO,

Congress was concerned with "long-term criminal conduct." Id. at 242, 109 S.Ct. at 2902.

Defendants do not contest the "relatedness" element of the "pattern of racketeering"

requirement. Issue is joined by the parties over the continuity of ABC's alleged conduct: the Church

contends it pled both a closed period of conduct and an open period of conduct as described in H.J.

Inc. We disagree, as three of this court's precedents foreclose the establishment of continuity.
In the first case, a doctor alleged that during the course of a lawsuit with an insurance

companyover payment of claims, the insurance company and others committed manyfraudulent acts,

including sending letters to other insurers to dissuade them from paying on the doctor's claims;

creating a company to generate negative reviews of the doctor's methods of treatments; and

"goading" government agencies into investigating the doctor. In re Burzynski, 989 F.2d 733 (5th

Cir.1993). This court concluded that the doctor failed to plead the continuity element of a "pattern

of racketeering":

All of the alleged predicate acts took place as part of the Burzynski I litigation, which has

ended. In [Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241 (5th Cir.1988), cert.

denied, 489 U.S. 1079, 109 S.Ct. 1531 [103 L.Ed.2d 836] (1989) ], we affirmed the dismissal

of a RICO claim where the plaintiff alleged multiple acts of fraud that were part and parcel

of a single, discrete and otherwise lawful commercial transaction. In Delta, the lawful

transaction was a merger; here, it is the defense of a lawsuit—which is now over. The

conduct did not constitute or threaten long-term criminal activity.

In re Burzynski, 989 F.2d at 743.

Similarly, in Calcasieu Marine Nat'l Bank v. Grant, 943 F.2d 1453 (5th Cir.1991) the court

found a lack of continuity. The plaintiff, Mrs. Grant, sued her former husband for depriving her of

her communitypropertyinterest in a partnership in which he had been an activemember. To establish

continuity, Mrs. Grant claimed a closed period of conduct. The court held, however, that

there is no threat here of continued criminal acts. [Mr.] Grant's acts which were alleged to

have deprived Mrs. Grant of a property interest were, when completed, without threat of

repetition. Short-term criminal conduct is not the concern of RICO.

Calcasieu, 943 F.2d at 1464.

The earliest case that discusses the element of continuity under RICO, albeit before the

Supreme Court's decision in H.J. Inc., is Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241

(5th Cir.1988), cert. denied, 489 U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989). Delta Truck,

an International Harvester dealer, alleged that International Harvester, J.I. Case Co., and Tenneco,

Inc. had committed numerous predicate acts of wire and mailfraud in connection with the acquisition

of International Harvester by Case and Tenneco. The district court dismissed the complaint. This

court affirmed, focusing on the concept of continuity as incorporated in the enterprise element of

RICO. The court stated:
 

4The law in other circuits might have allowed this case to proceed further. See Shields

Enterprises, Inc. v. First Chicago Corp., 975 F.2d 1290 (7th Cir.1992) (where defendant used

extortion every time it wished to accomplish a goal in dealing with plaintiff, a pattern could be

shown); Ticor Title Ins. Co. v. Florida, 937 F.2d 447 (9th Cir.1991) (three forgeries within

thirteen month period suggests a regular way of conducting business); United States v. Busacca,

936 F.2d 232 (6th Cir.), cert. denied, 502 U.S. 985, 112 S.Ct. 595, 116 L.Ed.2d 619 (1991)

(where defendant misappropriated money whenever an expense was incurred, a pattern was

established); Ikuno v. Yip, 912 F.2d 306 (9th Cir.1990) (pattern requirement met with the filing

of two allegedly false annual reports). The precedents of this circuit concerning continuity are

consistently different from these cases. 

Delta has attempted to state a RICO claim by alleging multiple acts of fraud that were part

and parcel of a single, discrete and otherwise lawful commercial transaction. This claim fails

to state a RICO cause of action as a matter of law because the pleadings do not assert that

the corporate defendants posed a continuous threat as a RICO person. Delta has alleged as

a pattern of racketeering activity nothing more than numerous predicate acts which were

necessary segments of an otherwise legitimate and singular commercial endeavor.

Id. at 244.

 It is unnecessary to delve into the arcane concepts of closed-end or open-ended continuity

under RICO. Burzynski, Calcasieu, and Delta Truck make clear that where alleged RICO predicate

acts are part and parcel of a single, otherwise lawful transaction, a "pattern of racketeering activity"

has not been shown. In this case, the alleged predicate acts occurred during the production and airing

ofPrimeTime broadcasts concerning Tilton and his Church. The alleged acts were all part of a single,

lawful endeavor—namely the production of television news reports concerning a particular subject.

We agree with the district court that the Church has failed to plead a "continuity of racketeering

activity, or its threat." H.J. Inc., 492 U.S. at 241, 109 S.Ct. at 2902.4

The Church alternatively contends that it is ABC's regular pattern of conducting business to

use illegal means to further its TV production, citing to newspaper reports and to several lawsuits

brought by parties dissatisfied with their portrayal in ABC news programs. However, in the case

whose facts are most similar to those present here, the district court found that the plaintifffailed to

establish continuity and dismissed the RICO claims. Food Lion, Inc. v. Capital Cities/ABC, Inc., 887

F.Supp. 811, 819-20 (M.D.N.C.1995). Pleading the mere existence of lawsuits is not the same as

pleading the facts that demonstrate predicat e illegal acts as the defendant's regular way of doing

business. The Church has not in this respect sufficiently alleged a continued threat of illegal activity

by ABC.
C. Section 1985(3) Claim

The Church contendsit properlypled a claimunder 42 U.S.C. § 1985(3) based on the animus

of defendants toward the Church's religious doctrines and its First Amendment rights. To state a

claim under section 1985(3), a complaint must allege:

(1) a conspiracy of two or more person; (2) for the purpose of depriving, either directly or

indirectly, any person or class of persons equal protection of the laws, or of equal privileges

and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby

a person is either injured in his person or property or deprived of any right or privilege of a

citizen of the United States.

Deubert v. Gulf Federal Savings Bank, 820 F.2d 754, 757 (5th Cir.1987). Essential to the claim,

however, is that the conspiracy be motivated by racial animus. See Green v. State Bar of Texas, 27

F.3d 1083, 1088 n. 8 (5th Cir.1994); Deubert, 820 F.2d at 757; Rayborn v. Mississippi State Bd.

of Dental Examiners, 776 F.2d 530, 532 (5thCir.1985). We decline the Church's invitation to extend

the reach of section 1985(3) to include conspiracies motivated by religious, as opposed, to racial

animus. The district court properly dismissed this claim.

D. Opportunity to Cure Pleadings

The Church contends that at a minimum it should be allowed to amend its pleadings to cure

any deficienciesin its RICO claim, arguing that the district court gave no opportunity to replead after

concluding that the Church failed to plead a RICO pattern. Although leave to amend should be freely

granted, we review the district court's refusal to allow amendment only for abuse of discretion.

Robertson v. Plano City, 70 F.3d 21, 22 (5th Cir.1995); Wheat v. Mass, 994 F.2d 273, 277 (5th

Cir.1993).

TheChurch'sRICOclaimwas contained inits First AmendedComplaint, itsSecondAmended

Complaint, which the district court refused to accept, and its Third Amended Complaint, which the

district court accepted. Further, the Church filed two Amended RICO Case Statements. The Church

was given ample opportunity to plead its RICO claim. The district court did not abuse its discretion

in denying the Church an opportunity to replead.

III. CONCLUSION

Having decided that the Church failed to state a claim under RICO or § 1985(3), we do not
reach appellees' res judicata arguments. The judgment of the district court is AFFIRMED.