United States v. Nascimento
491 F.3d 25, 2007 WL 1881304, 2007 U.S. App. LEXIS 15755 (2007)
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Rule of Law:
The Racketeer Influenced and Corrupt Organizations Act (RICO) applies to enterprises engaged exclusively in non-economic criminal activity, and its 'affecting commerce' requirement is satisfied by a de minimis effect on interstate commerce. This application does not violate the Commerce Clause, as Congress may regulate a class of activity (racketeering) that is economic in nature, even if a specific instance of that activity is not.
Facts:
- In the mid-1990s, a group of youths known as the Wendover group congregated in Dorchester, Boston.
- In 1995, Nardo Lopes, a member of the Wendover group, killed Bobby Mendes.
- Upon his release from prison in July 1996, Nardo's brother, Augusto Lopes, resolved to kill potential witnesses against his brother.
- In late 1997, Augusto Lopes began associating with the Stonehurst street gang, which was a rival of the Wendover group.
- From 1998 to 2000, Stonehurst, whose primary purpose was to kill members and supporters of Wendover, engaged in a wave of violence against the rival group.
- To carry out its purpose, Stonehurst members maintained a shared arsenal of firearms, most of which were manufactured outside of Massachusetts.
- During the conspiracy, Stonehurst member Kamal Lattimore traveled from Massachusetts to New Hampshire to purchase a firearm, which he brought back to Massachusetts for the gang's arsenal.
Procedural Posture:
- A federal grand jury returned a superseding indictment charging Jackson Nascimento, Lance Talbert, and Kamal Lattimore with violations of RICO and other statutes for their involvement with the Stonehurst gang.
- The defendants were tried together in the U.S. District Court.
- A jury convicted Nascimento of racketeering, racketeering conspiracy, conspiracy to commit murder in aid of racketeering (VICAR), a VICAR assault charge, and a firearm charge.
- The jury convicted Talbert of a substantive RICO count, RICO conspiracy, and VICAR murder conspiracy.
- The jury convicted Lattimore of a substantive RICO count and RICO conspiracy, but the district court immediately granted a judgment of acquittal on the substantive count.
- The defendants (appellants) moved for judgments of acquittal or, in the alternative, new trials, which the district court denied.
- The district court sentenced the appellants to incarcerative terms.
- Nascimento, Talbert, and Lattimore (appellants) appealed their convictions to the U.S. Court of Appeals for the First Circuit.
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Issue:
Does the Racketeer Influenced and Corrupt Organizations Act (RICO) apply to a street gang engaged exclusively in violent, non-economic criminal activity where the gang's activities have only a de minimis effect on interstate commerce?
Opinions:
Majority - Selya, Senior Circuit Judge.
Yes. The Racketeer Influenced and Corrupt Organizations Act (RICO) applies to a street gang engaged exclusively in non-economic criminal activity, and the standard de minimis effect on interstate commerce is sufficient to satisfy the statute's jurisdictional requirement. The court rejected the argument for a heightened 'substantial effect' standard for non-economic enterprises, finding no basis in the statutory text for giving the phrase 'affecting commerce' different meanings in different contexts. Relying on Gonzales v. Raich, the court reasoned that the Commerce Clause inquiry focuses on the economic nature of the 'class of conduct' defined in the statute (racketeering) rather than the specific non-economic motives of a single enterprise. Since racketeering as a class of activity is economic and has a substantial relationship to interstate commerce, Congress has the constitutional power to regulate it, including its non-economic manifestations. The evidence of the gang amassing an arsenal of out-of-state firearms, and particularly one member's travel across state lines to purchase a weapon for the enterprise, was sufficient to establish the required de minimis nexus to interstate commerce.
Concurring - Boudin, Chief Judge
Yes. The convictions are constitutional because the gang's activities had a sufficient nexus to interstate commerce to satisfy the Commerce Clause. The gang's regular use of guns that had moved in interstate commerce, and a member's travel across a state line to purchase a weapon, created a direct link. This is constitutionally analogous to, or stronger than, the nexus upheld in federal felon-in-possession statutes, where jurisdiction is based on the firearm having previously moved in interstate commerce. Unlike the statutes in Lopez and Morrison, RICO contains a specific jurisdictional element that requires the prosecution to prove, and the jury to find, an effect on commerce in the individual case, which was done here.
Analysis:
This decision creates a circuit split with the Sixth Circuit's holding in Waucaush v. United States, which had required a 'substantial effect' on commerce for RICO to apply to non-economic enterprises. By rejecting a heightened standard, the First Circuit broadened the reach of federal prosecutors to target purely violent street gangs under RICO, so long as a minimal connection to interstate commerce can be shown. The court's reliance on the 'class of activities' analysis from Gonzales v. Raich reinforces a broad interpretation of Congress's Commerce Clause power, making it more difficult for defendants to succeed on as-applied challenges by carving out their specific non-economic conduct from a larger, constitutionally valid regulatory scheme.
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