Constitutional law - First Circuit requires minimal commercial effect for RICO violations based on local noneconomic activity.

• Author: Rubin, Alexandra B.

Constitutional Law--First Circuit Requires Minimal Commercial Effect for RICO Violations Based on Local Noneconomic Activity--United States v. Nascimento, 491 F.3d 25 (1st Cir. 2007), petition for cert. filed, No. 07-7925 (U.S. Nov. 26, 2007)

In 1970, Congress passed the Racketeer Influenced and Corrupt Organizations Act (RICO), allowing federal prosecutors leeway in bringing criminal charges against associates of organized crime enterprises. (1) To secure a RICO conviction, the government must prove five elements, one of which is that the enterprise's activities affect interstate commerce. (2) In United States v. Nascimento, (3) the Court of Appeals for the First Circuit considered whether to uphold the appellants' RICO convictions where the appellants were members of a local gang whose purpose was to assault and murder rival gang members. (4) The First Circuit upheld the convictions and, purposefully splitting from the Sixth Circuit, concluded that RICO requires only a minimal effect on interstate commerce for local, noneconomic crimes. (5)

The Nascimento case involved the rivalry of two Boston gangs. (6) Contention between the Stonehurst Street gang and the Wendover Street gang stemmed from the 1995 stabbing death of a Dorchester youth. (7) On nearly two dozen occasions between 1998 and 2000, members of Stonehurst assaulted, murdered, or attempted to murder Wendover's members and supporters. (8) In September 2004, federal prosecutors brought a thirty-three count indictment against thirteen Stonehurst members. (9)

Seven of the thirteen indicted gang members went to trial in 2005. (10) The indictment listed crimes including several daytime shootings outside commercial businesses and one nighttime shooting inside a tire shop, which engaged in interstate commerce. (11) A shared arsenal of firearms found during the police investigation further illustrated Stonehurst's violent activity. (12) The gang supposedly used this arsenal as a resource to carry out the alleged crimes. (13) At least eight of the guns traveled through interstate commerce, and on one occasion, a Stonehurst member purchased a gun in New Hampshire, used it in a Massachusetts crime, and subsequently added it to the weapons cache. (14)

The jury acquitted four of the defendants but found Nascimento and two others guilty of violating RICO, the Violent Crimes in Aid of Racketeering Act (VICAR), assault, and conspiracy. (15) The district court rejected Nascimento's argument that using firearms that had traveled through interstate commerce was insufficient to satisfy RICO's required effect on interstate commerce. (16) In finding that the requisite minimal effect satisfying RICO's commercial element existed, the court declined to consider that the First Circuit had never previously upheld a RICO conviction where the enterprise lacked economic or commercial activities. (17)

The United States Constitution permits Congress to regulate interstate commerce. (18) Throughout its history, however, the Supreme Court has altered the boundaries of congressional power in that respect. (19) In 2005, after a series of decisions narrowing Congress's commerce power, the Supreme Court interpreted the Commerce Clause broadly in Gonzales v. Raich. (20) In Raich, the plaintiffs possessed marijuana for medicinal purposes in compliance with California's Compassionate Use Act. (21) In a 6-3 decision, the Court ruled that the Federal Controlled Substances Act (CSA) applied to noncommercial use and cultivation of marijuana. (22) Even though the plaintiffs used the drug for noneconomic purposes, the Court held that marijuana belongs to a class of commodity that affects interstate commerce in the aggregate, thus falling under the control of the Commerce Clause. (23)

Critics argue Raich expands congressional commerce power to a point where it encroaches upon power reserved for the states in the Constitution. (24) Due to the recent expansion in Commerce Clause jurisprudence, federal prosecutors have wider latitude to take action against criminals who would otherwise face state prosecution. (25) RICO is one of many federal statutes that require an effect on interstate commerce. (26) Moreover, in a RICO prosecution, the federal government can show the required effect on interstate commerce either directly or indirectly. (27)

In 2004, the Sixth Circuit looked at the "affect [sic] on commerce" element of RICO as it applied to local gang activity in Waucaush v. United States. (28) In Waucaush, Detroit's Cash Flow Posse conspired to and succeeded in murdering members of rival gangs. (29) The Sixth Circuit reversed the appellant's RICO conviction, holding that the gang's local, intrastate activities were not economic in nature. (30) The court interpreted "affecting interstate commerce" as requiring a minimal effect where the activity had an economic basis or component, but it required a substantial effect where the activity did not. (31)

In United States v. Nascimento, the First Circuit, through strict statutory construction and precedent interpretation, purposely split from the Sixth Circuit. (32) The court applied the rational basis test to uphold the constitutionality of the RICO statute. (33) The court relied heavily on Raich, which holds that the "class" of activity inquiry is more important than the specificities within each class. (34) The First Circuit labeled the Stonehurst gang as a racketeering enterprise and concluded that where racketeering enterprises mostly conduct financially driven crimes, it is irrelevant that Stonehurst engaged primarily in noneconomic activities. (35) Thus, the court held that the defendant's out-of-state purchase of a single weapon used in a later Massachusetts crime satisfied RICO's commercial effect requirement. (36) This commercial transaction, coupled with the arsenal of weapons manufactured out-of-state, brought the appellants within RICO; other activities that affected interstate commerce were "frosting on the cake." (37)

In addition, the First Circuit declined to interpret RICO as requiring different levels of effect on interstate commerce, depending on whether the enterprise entailed mainly economic or noneconomic activity. (38) The court contrasted the judicial and legislative branches of government, stating the judiciary's role is to interpret legislation, not rewrite it. (39) The court criticized the Sixth Circuit's Waucaush opinion, calling the decision "suspect" because it failed to use typical statutory construction techniques and also added words to the statute. (40) The court, however, recognized that the Sixth Circuit would likely apply the Raich decision had it come before Waucaush. (41) The First Circuit followed Raich's precedent, holding RICO only requires a minimal effect, and declined to follow the Sixth Circuit's variation. (42)

The First Circuit employed the...