Constitutional Law - Commerce Clause - First Circuit Upholds Application of RICO to Criminal Gang Not Engaged in Economic Activity. - United States V. Nascimento

Harvard Law Review, May 2008 | Go to article overview

Constitutional Law - Commerce Clause - First Circuit Upholds Application of RICO to Criminal Gang Not Engaged in Economic Activity. - United States V. Nascimento


Beginning with United States v. Lopez, (1) the Rehnquist Court's "new federalism" (2) put modest limits on the reach of federal criminal law under the Commerce Clause. (3) The Court's decisions nevertheless left untouched one key element of the post--New Deal legislative arsenal: the use of jurisdictional elements requiring individualized assessments of defendants' ties to interstate commerce. (4) When the Court drew back from Lopez in Gonzales v. Raich, (5) however, it partially obviated the need for jurisdictional elements; under Raich, Congress can reach any conduct so long as it acts pursuant to a comprehensive regulatory scheme. (6) Recently, in United States v. Nascimento, (7) the First Circuit interpreted the jurisdictional element of the Racketeer Influenced and Corrupt Organizations Act (8) (RICO) to require only a de minimis effect on commerce (9) and upheld the Act's application to noneconomic gang activity under Raich. (10) While the activity at issue ultimately does fall within the ambit of both RICO and the Commerce Clause, the court should have interpreted RICO more narrowly to ensure congressional accountability and prevent judicial overreaching.

From 1998 to 2000, two street gangs in Boston--known as Wendover and Stonehurst--undertook a Pyrrhic campaign of murder and gun violence. (11) Defendants were all members of Stonehurst. (12) The gang as a whole did not engage in drug trafficking, although some members did deal drugs. (13) According to the federal indictment, Stonehurst's chief purpose was "to shoot and kill members, associates, and perceived supporters of ... Wendover." (14) In pursuit of that goal, Stonehurst used guns that were manufactured out of state, and one of its members crossed state lines to purchase a firearm. (15)

Defendants were convicted by a jury in the U.S. District Court for the District of Massachusetts. (16) Judge Saris instructed the jury that RICO's jurisdictional element--limiting application to an "enterprise engaged in, or the activities of which affect, interstate or foreign commerce" (17)--requires only a "de minimis" effect on commerce. (18) Although Judge Saris found insufficient evidence to support a finding that Stonehurst was engaged in drug trafficking, she held that the purchase, use, and possession of the gang's weapons provided a sufficient factual basis for the jury to find the requisite effect on commerce. (19)

The First Circuit upheld defendants' RICO convictions (20) against a challenge to the sufficiency of the evidence under RICO's jurisdictional element, and against an as-applied challenge under the Commerce Clause. (21) Writing for a three judge panel, Judge Selya (22) affirmed the district court's use of the de minimis standard. (23) While acknowledging a Sixth Circuit opinion that applied a substantial effects test for noneconomic RICO activity, (24) the court found "no room [for] constitutional avoidance." (25) In light of an earlier decision imposing a de minimis requirement for economic activity, (26) the court felt itself constrained by the Supreme Court's holding in Clark v. Martinez (27) that courts may not give a statutory term more than one meaning to avoid constitutional concerns. (28) Applying the de minimis standard, the court affirmed the decision below. (29)

In response to the as-applied constitutional challenge, the court eschewed particularized inquiry into the regulated conduct's effects on interstate commerce and applied Raich to uphold this application of RICO as pursuant to a comprehensive regulatory scheme. (30) The court construed RICO as a regulation of the class of "racketeering activity," (31) which the court deemed "sufficiently economic" to justify regulation under Raich. (32) Just as the Supreme Court "refuse[d] to excise" intrastate possession of marijuana from Congress's regulatory scheme, (33) the court in Nascimento declared it would not excise noneconomic gang activity from the larger racketeering class. …

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