United States Court of Appeals
For the First Circuit
No. 06-1152
UNITED STATES OF AMERICA,
Appellee,
v.
JACKSON NASCIMENTO,
Defendant, Appellant.
_______________
No. 06-1153
UNITED STATES OF AMERICA,
Appellee,
v.
LANCE TALBERT,
Defendant, Appellant.
_______________
No. 06-1154
UNITED STATES OF AMERICA,
Appellee,
v.
KAMAL LATTIMORE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Stafford,* Senior District Judge.
Ryan M. Schiff, with whom John Salsberg and Salsberg &
Schneider were on brief, for appellant Nascimento.
Albert F. Cullen, Jr., with whom Law Office of Albert F.
Cullen, Jr. was on brief, for appellant Talbert.
Wayne R. Murphy, with whom Murphy & Associates was on brief,
for appellant Lattimore.
Michael A. Rotker, Attorney, United States Department of
Justice (Criminal Division, Appellate Section), with whom Michael
J. Sullivan, United States Attorney, Theodore B. Heinrich, Glenn A.
MacKinlay, and Donald L. Cabell, Assistant United States Attorneys,
were on brief, for appellee.
July 2, 2007
* Of the Eleventh Circuit, sitting by designation.
SELYA, Senior Circuit Judge. The pivotal issue in this
case concerns the application of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, to a street
gang engaged in violent, but noneconomic, criminal activity. That
issue possesses constitutional implications weighty enough to have
led one of our sister circuits to fashion a special, more rigorous,
version of RICO's statutory "affecting commerce" requirement for
use in connection with defendants involved with enterprises that
are engaged exclusively in noneconomic criminal activity. See
Waucaush v. United States, 380 F.3d 251, 256 (6th Cir. 2004).
Although we are reluctant to create a circuit split, we conclude,
after grappling with this difficult question, that the normal
requirements of the RICO statute apply to defendants involved with
enterprises that are engaged only in noneconomic criminal activity.
Based on that conclusion and on our resolution of a golconda of
other issues ably raised by highly competent counsel, we affirm the
appellants' convictions. The tale follows.
I.
We begin with a brief synopsis of the facts. We will
embellish upon that synopsis as we reach and discuss particular
issues.
In the mid-1990s, a group of youths of Cape Verdean
ancestry routinely congregated around Wendover Street in the
Dorchester section of Boston, Massachusetts. In 1995, one of these
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youths (Nardo Lopes) killed another (Bobby Mendes). Nardo then
went into hiding; as of the time of trial in this case, he remained
a fugitive from justice.
Nardo's brother, Augusto Lopes, was also a Wendover
regular. Though he was incarcerated at the time of the Mendes
slaying, he resolved upon his release from prison, in July of 1996,
to kill the potential witnesses against his brother. That resolve
extended to many of his old Wendover Street associates.
In late 1997, Augusto Lopes began associating with Manny
Monteiro, who introduced him to a group of individuals whose base
of operations was Stonehurst Street in Dorchester. Lopes's new
friends were part of a street gang that controlled Stonehurst
Street. He soon learned that Stonehurst members "had problems"
with their Wendover counterparts. Although the source was never
clearly established, the antagonism was real: during the period
from 1998 to 2000, a wave of violence transpired in which
Stonehurst members repeatedly shot at Wendover members and Wendover
members retaliated in kind. Augusto Lopes was integrally involved
in this cacophony of ongoing mayhem.
In September of 2004, a federal grand jury returned a
thirty-three count superseding indictment naming thirteen
defendants. Three of these defendants are appellants here. With
respect to them, the flagship charge was that they had violated
RICO through their membership in a racketeering enterprise:
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Stonehurst. The indictment alleged that Stonehurst's primary
purpose was "to shoot and kill members, associates, and perceived
supporters of a rival gang in Boston known as Wendover."1 To
buttress this allegation, the indictment enumerated nearly two
dozen instances of murder and assault with intent to kill
purportedly committed by Stonehurst members.
Seven individuals, including all three appellants, were
tried together on assorted charges stemming from their involvement
with Stonehurst. Augusto Lopes became a government witness and
testified against his former Stonehurst allies, as did two other
cooperating witnesses (Marcelino Rodrigues and Jason Burgo). The
government also adduced testimony from a number of other eye-
witnesses about various shootings. Police testimony, ballistics
evidence, and the like completed the prosecution's case.
Following a twenty-six day trial, four defendants were
acquitted. The three appellants did not fare as well.
The jurors convicted one appellant, Jackson Nascimento,
of racketeering, 18 U.S.C. § 1962(c), racketeering conspiracy, id.
§ 1962(d), conspiracy to commit murder in aid of racketeering in
violation of the Violent Crimes in Aid of Racketeering statute
1
The indictment also charged that another purpose of the
enterprise was "to sell crack cocaine and marijuana." However, the
evidence at trial indicated that while individual Stonehurst
members had engaged in drug trafficking, Stonehurst itself had not.
Accordingly, the trial judge ruled as a matter of law that there
was insufficient evidence to prove that the Stonehurst enterprise
engaged in drug dealing. We assume the correctness of this ruling.
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(VICAR), id. § 1959(a)(5), a VICAR assault charge, id. §
1959(a)(3), and use of a firearm in the commission of a crime of
violence, id. § 924(c). The racketeering conviction was supported
by special findings to the effect that Nascimento had (i) shot
Zilla DoCanto and (ii) conspired to murder members of Wendover.
The jury rejected the government's contention that Nascimento had
perpetrated a second shooting and acquitted him of a second count
of violating 18 U.S.C. § 924(c).
The jurors convicted a second appellant, Lance Talbert,
on a RICO conspiracy count, a substantive RICO count, and a count
charging VICAR murder conspiracy. The jury found specially that
Talbert had shot Wendover member Adiello DaRosa and had conspired
to murder members of Wendover. The government also had charged
Talbert with having engaged in another shooting but dropped those
charges at the close of the evidence.
The jurors convicted the third appellant, Kamal
Lattimore, on both a RICO conspiracy count and a substantive RICO
count. However, the district court immediately granted a judgment
of acquittal as to the latter count. The jury acquitted Lattimore
of a firearms charge and of charges of VICAR assault and VICAR
conspiracy.
Following the verdict, the appellants moved for judgments
of acquittal or, in the alternative, new trials. See Fed. R. Crim.
P. 29, 33. The district court denied these motions in full.
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On December 15, 2005, the district court sentenced
Nascimento to a 171-month incarcerative term, Talbert to a 57-month
incarcerative term, and Lattimore to a 46-month incarcerative term.
These timely appeals ensued.
II.
Five elements must coalesce to make out a substantive
RICO violation. The government must show: "(1) an enterprise
existed; (2) the enterprise participated in or its activities
affected interstate commerce; (3) the defendant was employed by or
was associated with the enterprise; (4) the defendant conducted or
participated in the conduct of the enterprise; (5) through a
pattern of racketeering activity." United States v. Marino, 277
F.3d 11, 33 (1st Cir. 2002). The appellants challenge the
sufficiency of the evidence on the first, second, and fifth
elements.
VICAR, as well as RICO, is in play here. VICAR requires
that a defendant have committed a crime of violence in return for
something of pecuniary value from, or in order to advance or
maintain his position within, an enterprise affecting interstate
commerce that is engaging in a pattern of racketeering activity.
18 U.S.C. § 1959. Thus, a successful sufficiency challenge to the
RICO convictions also will serve to undermine the VICAR
convictions. Similarly, inasmuch as Nascimento's conviction under
18 U.S.C. § 924 was predicated on his having committed a VICAR
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assault on Zilla DoCanto, that conviction will be nullified if the
VICAR charge is found to be unsupportable.
Although the appellants' arguments come in a
kaleidoscopic array of shapes and sizes (including frontal attacks
on the sufficiency of the evidence, questions about statutory
construction, constitutional challenges, and complaints about jury
instructions), we organize our discussion thematically, element by
element.
A.
The first element of a RICO offense requires proof of the
existence of an enterprise. The enterprise need not be a
legitimate business or a form of organization sanctioned by state
law. United States v. Turkette, 452 U.S. 576, 587 (1981). It
"need only be a group of persons associated together for a common
purpose of engaging in a criminal course of conduct." United
States v. Connolly, 341 F.3d 16, 28 (1st Cir. 2003) (citations and
internal quotation marks omitted).
Despite the absence of any requirement of formal
sanction, the government nonetheless must prove that the enterprise
existed in some coherent and cohesive form. Turkette, 452 U.S. at
583. It follows that the enterprise must have been an "ongoing
organization" operating as a "continuous unit." Connolly, 341 F.3d
at 25.
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In all events, the enterprise must be distinct from the
pattern of racketeering activity that constitutes the fifth, and
final, element of a RICO offense. See Turkette, 452 U.S. at 583.
An enterprise is chiefly distinguished from the pattern of
racketeering activity by the fact that it possesses some goal or
purpose more pervasive and more enduring than the instant
gratification that can accrue from the successful completion of
each particular criminal act. See Connolly, 341 F.3d at 25.
Here, the appellants argue that the government failed to
present sufficient evidence of the existence of an enterprise or,
alternatively, that the district court's jury instructions obscured
the difference between RICO's "enterprise" and "pattern" elements.
In a related vein, they argue that the government failed to prove
that the enterprise was of sufficient duration vis-à-vis the time
frame that was set forth in the indictment. We address these
arguments sequentially.
1.
We first ponder the sufficiency of the government's
evidence concerning the existence of the enterprise. With respect
to this issue, we review the record de novo to determine whether,
taking the evidence and all reasonable inferences therefrom in the
light most hospitable to the government's theory of the case, a
rational jury could find beyond a reasonable doubt that the
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government had established the disputed element of the offense.
See United States v. Cruz-Arroyo, 461 F.3d 69, 73 (1st Cir. 2006).
In attacking the sufficiency of the government's evidence
anent the existence of an enterprise, the appellants point to
testimony from various cooperating witnesses who described
Stonehurst as a loose aggregation of friends that lacked colors,
initiation rites, and a formal hierarchy. For example, Augusto
Lopes testified that Stonehurst was "just a group" whose members
"were all friends with each other, certain individuals acted out,
and some individuals didn't do nothing at all." Similarly, Burgo
said at one point that Stonehurst was "just a name." The
appellants suggest that this testimony distinguishes this case from
United States v. Patrick, 248 F.3d 11 (1st Cir. 2001), a case in
which we upheld the application of RICO to a street gang that "had
colors and signs, . . . had older members who instructed younger
ones, its members referred to the gang as family, and it had
'sessions' where important decisions were made." Id. at 19.
We agree that the factors mentioned in Patrick are
relevant to the question of whether a street gang constitutes an
enterprise — but their presence or absence is not dispositive of
the issue. Here, the government provided other testimony that
could have prompted a jury reasonably to conclude that Stonehurst
was an enterprise. After all, Stonehurst members used a shared
cache of firearms that were regarded as property of the gang. The
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weapons were handed around and used by several different Stonehurst
members to shoot Wendover sympathizers. One erstwhile Stonehurst
member, Rodrigues, testified that he had traveled to purchase
weapons for "the group" and clarified that by "the group" he meant
"Stonehurst."
In addition to testimony about Stonehurst's arsenal, the
record contains testimony suggesting that Stonehurst members self-
identified as belonging to an organization. Cooperating witnesses
were able to identify precisely a wide variety of individuals as
being associated with Stonehurst. The witnesses also displayed an
ability to distinguish between members and friends.
Then, too, Stonehurst members kept tabs on one another
and informed one another when things would be "hot" because of a
recent shooting. They acted on behalf of one another by attempting
to assassinate witnesses to each other's crimes. And, finally,
members trained other members in the use of night vision goggles,
binoculars, and police evasion tactics to enable them more
efficiently to carry out their shared purpose of killing Wendover
members.
Taking this evidence in the light most favorable to the
government, we conclude, as did the district court, that even
though Stonehurst lacked some of the accouterments of more
structured street gangs, a rational jury could find that it had a
sufficiently well-defined shape to constitute an enterprise in the
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requisite sense. Stonehurst exhibited group cohesion over time;
its membership pooled and shared resources; the individuals
involved had a sense of belonging and self-identified as Stonehurst
members; and the group had a well-honed set of goals. We think
that this is enough, if barely, to constitute a RICO enterprise.
See Connolly, 341 F.3d at 27.
2.
Talbert makes a related contention: that even if the
evidence suffices to support a finding that Stonehurst was an
enterprise, the district court's jury instructions were confusing.
He directs his umbrage at the court's instruction that a RICO
enterprise need not have an "ascertainable structure." As Talbert
acknowledges, this instruction has been approved as good law in
this circuit. See Patrick, 248 F.3d at 18.
Some challenges to jury instructions are reviewed for
abuse of discretion. See, e.g., United States v. Perez, 299 F.3d
1, 5 (1st Cir. 2002). Others, however, assign error in, say, the
nature of the elements of an offense. That type of claim engenders
de novo review. See, e.g., Marino, 277 F.3d at 28; see also United
States v. Figueroa-Encarnacíon, 343 F.3d 23, 29 (1st Cir. 2003)
(noting the standard-of-review distinction). Because Talbert's
challenge is rooted not in an abstract principle of law but in the
trial court's choice of language, with a view to minimizing
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potential juror confusion, the abuse of discretion standard governs
our review.
Because the challenged instruction tracks an explicit
holding of this court, Talbert starts at a considerable
disadvantage. He insists, however, that where, as here, there is
only "minimal" evidence of the existence of an enterprise, the
trial court should avoid the topic of ascertainable structure
altogether. In a close case, his thesis runs, such an instruction,
though technically correct, promotes juror confusion.
This argument is untenable. When an instruction is
pertinent to the issues submitted to the jury and constitutes an
accurate statement of the law, it is hard to imagine any basis for
a claim of error. See United States v. Keene, 341 F.3d 78, 83 (1st
Cir. 2003). Here, moreover, the district court took great pains to
emphasize that "[a]n enterprise is not merely a related assortment
of criminal activities." Rather, the court said, "there must be
some goal — a purpose of engaging in a course of conduct — beyond
this isolated benefit that can come from the commission of each
criminal act." The court also made clear that "[t]he enterprise
element [of the offense] is different from the racketeering
activity element." These instructions were pellucid as to the
distinctions between the "enterprise" and "pattern" elements of the
offense. We see no realistic possibility that they were a source
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of juror confusion. Consequently, the district court did not abuse
its discretion in charging the jury as it did.
3.
The appellants lodge a final objection to the finding
that Stonehurst constituted an enterprise. This objection centers
on the longevity of the enterprise. It is not a claim that
Stonehurst's existence was too ephemeral to satisfy the minimum
duration required by the RICO statute, see H.J. Inc. v. Nw. Bell
Tel. Co., 492 U.S. 229, 242 (1989) (discussing the continuity
requirement applicable to RICO enterprises), but rather a claim
that the duration of Stonehurst's existence, as proven, fell short
of the period suggested in the indictment.
The argument proceeds as follows. First, the appellants
note that the indictment specified that the named defendants
"[f]rom a time unknown, but at least by July 1996, until the date
of the Indictment" — September 30, 2004 — "did unlawfully and
knowingly conduct and participate, directly and indirectly, in the
conduct of the affairs of the [e]nterprise, through a pattern of
racketeering activity." They then point out that the district
court told the jury, without objection, that in order to establish
the enterprise element, the government had to prove that "the
enterprise [had] continue[d] in essentially unchanged form during
substantially the entire period alleged in the indictment"
(emphasis supplied). Next, the appellants remind us that "when a
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cause is submitted to the jury under an instruction, not patently
incorrect or internally inconsistent, to which no timely objection
has been lodged, the instruction becomes the law of the case."
United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992). The
question then becomes — or so the appellants say — whether the
government provided "evidence sufficient to establish the elements
required by the actual instructions given." United States v.
Zanghi, 189 F.3d 71, 79 (1st Cir. 1999). The appellants conclude
that this question must be answered in the negative.
The district court rejected this construct. It found
that Rodrigues's testimony supported a finding that the enterprise
existed from at least 1997 until at least 2001. It further found
that the evidence indicating that the Wendover/Stonehurst feud had
its origins in the Mendes killing was enough to support the
conclusion that Stonehurst was active as far back as 1995. While
it acknowledged that there was no evidence of Stonehurst's
existence from 2002 through 2004, the court found such evidence
unnecessary because substantially all the relevant activity of the
enterprise took place during the 1996-2001 time frame. The court
added that, in any event, the exact duration of the enterprise was
not an essential element of the offense. In its view, the
government demonstrated the required continuity, and no more was
exigible.
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The court concluded by analyzing what had happened as a
type of variance. A variance occurs when "the proof at trial
depicts a scenario that differs materially from the scenario limned
in the indictment." United States v. Escobar-de Jesús, 187 F.3d
148, 172 (1st Cir. 1999). The existence of a variance does not
automatically result in the vacation of a conviction. A variance
only requires the setting aside of a conviction if it is
prejudicial. See United States v. Villarman-Oviedo, 325 F.3d 1, 21
(1st Cir. 2003). Discerning no prejudice from this particular
variance, the district court denied the appellants' motions for
either judgment of acquittal or a new trial.
The appellants attack the district court's ruling on
several levels. Their first attack is fact-oriented: they concede
that Rodrigues testified that he was a Stonehurst member from 1997
through 2001, but they assert that he only described activities
occurring during 1998 and 2000. This is too isthmian a view of
Rodrigues's testimony.
Rodrigues testified that the shootings between Wendover
and Stonehurst "started . . . back in '95" and were "still
ongoing." At the very least, this testimony supports the district
court's conclusion that Stonehurst, as an entity dedicated to
wreaking havoc on Wendover, existed through the end of Rodrigues's
tenure (2001). The question, then, is whether the jury verdict can
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be supported by testimony concerning that somewhat truncated time
span.
The appellants, citing the Second Circuit's decision in
United States v. Morales, 185 F.3d 74 (2d Cir. 1999), insist that
it cannot. In Morales, the indictment alleged that the defendants
had belonged to a continuous enterprise that existed for a nine-
year period. Id. at 78. The proof, however, showed conclusively
that the enterprise had been dormant for seven years in the middle
of that period because its entire membership had been incarcerated.
Id. at 79. The court held that the evidence was insufficient to
show that the "enterprise existed for the duration alleged in the
indictment." Id. at 81. The court refused to "consider whether
the evidence was sufficient to support a finding of a shorter
racketeering enterprise" on the ground that the "indictment charged
a single nine-year enterprise, and the jury was instructed that it
could only convict on the racketeering and racketeering-dependent
counts if it found that the specific enterprise set out in the
indictment existed." Id.
The appellants asseverate that this case and Morales are
peas in a pod. They are not. The concerns underlying the decision
in Morales are very different from what is involved here. In
Morales, the government attempted to play fast and loose with
RICO's continuity requirement — and it did so in a way that
threatened to impair the defendants' rights (by constructing the
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indictment in a manner that allowed the introduction, in a single
trial, of evidence concerning two distinct criminal organizations).
Under those circumstances, we readily understand why the Morales
court was disinclined to allow the government to argue, after
putting before the jury significantly inculpatory evidence from
both periods, that either organization, by itself, could have
satisfied the continuity requirement. That would, in effect, have
given the government a second bite at the cherry.
The scenario here is vastly different. While the
indictment may have marginally overclaimed — the record contains
very little concerning the 2002-2004 period — there was no question
of shifting enterprises and no attempt to stack the deck by
introducing damning bits of evidence from a different
orangization's conduct in a different era. Moreover, the
government had adduced ample proof that a single enterprise was
continuously active in the slightly narrowed period. Indeed, the
trial seems to have proceeded on the premise that this narrowed
period was the relevant time frame.2
To cinch matters, the appellants had every reason to
believe that the period from 1996 through 2001 would be the crucial
period for purposes of the RICO and other racketeering-dependent
counts. Of the twenty-one racketeering acts listed in the
2
The trial transcript reveals quite clearly that the able
district judge reined in witnesses who attempted to discuss matters
outside that time frame.
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indictment, twenty were alleged to have occurred in that time frame
(the lone exception — the general charge that Stonehurst members
had conspired to kill Wendover members — was described as having
spanned the period from 1996 until 2004). This not only erases any
doubt that the indictment gave the appellants fair notice of the
focus of the charges against them, but also confirms that the
government did not benefit in any way from describing a slightly
longer period in the indictment.
Under these circumstances, we do not think that the
government can be said to have assumed the burden of proving the
operation of Stonehurst from 1996 to 2004 merely by mentioning
those dates in the indictment. The period represented a mere
factual allegation; it did not constitute an element of the
offense. That is a significant difference. See United States v.
Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006) (describing the
difference between a deviation from the charging terms and a
deviation from facts alleged in an indictment).
In the last analysis, we see no merit in the appellants'
"law of the case" argument. The district court charged the jury in
relevant part that the government had the burden of proving that
the enterprise operated continuously "during substantially the
entire period alleged in the indictment." "Substantially" is a
relative term, which invites a weighing of the salience of covered
items against the salience of non-covered items. Cf. United States
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v. Castaneda, 162 F.3d 832 838 (5th Cir. 1998) (holding that a
party has "substantially performed" when his "relatively
insignificant omissions" are "dwarfed by [his] performance").
Bearing in mind that virtually all the overt acts that comprised
the substance of the indictment were completed prior to 2002, we
think that a rational jury could conclude that the period form 1996
through 2001 was "substantially" the entire period covered by the
indictment.
B.
A second element of a RICO violation is an effect on
interstate or foreign commerce. Foreign commerce is not implicated
here, and the district court instructed the jury that the
interstate commerce requirement would be satisfied by a showing
that Stonehurst's actions had at least a de minimis effect on
interstate commerce. This instruction would have been unarguably
correct in most RICO cases. See, e.g., Marino, 277 F.3d at 35;
United States v. Riddle, 249 F.3d 529, 537 (6th Cir. 2001).
Seizing on the fact that Stonehurst did not engage in any economic
activity, see supra note 1, the appellants argue that this case is
different. In their view, the instruction misstates RICO's
statutory requirement with respect to enterprises that have not
engaged in economic activity. They argue, in the alternative, that
if the instruction is correct as a matter of statutory
interpretation, the statute is unconstitutional as applied to their
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enterprise. As a fallback, they assert that, even if the
instruction can withstand these attacks, the evidence was
insufficient to satisfy even the modest de minimis standard. We
consider each facet of this asseverational array.
1.
We start with the appellants' contention that, on the
facts of this case, the RICO statute requires more than a de
minimis effect on interstate commerce. This is an uphill battle;
this court has held, squarely and explicitly, that a de minimis
effect on interstate commerce is all that is required to satisfy
RICO's commerce element. See Marino, 277 F.3d at 35.
The appellants attempt to skirt this obstacle by
suggesting that a more rigorous standard pertains in cases, like
this one, in which a RICO enterprise has not engaged in economic
activity. To distinguish Marino, they point out that the
enterprise in question there was found to be involved in drug
trafficking — plainly a form of economic activity.
This argument is peculiar. Although nothing in the text
of RICO suggests it, the appellants urge us to read a single phrase
in the statute as requiring different things in different
situations: in a case involving an enterprise engaged in economic
activity, the government would have to show only a de minimis
effect on interstate commerce, whereas in a case involving an
enterprise engaged in violence but not in economic activity, the
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government would have to show a more substantial effect on
interstate commerce. We reject this iridescent reading of the
statute.
By its terms, the RICO statute applies to any "enterprise
engaged in, or the activities of which affect, interstate or
foreign commerce." 18 U.S.C. § 1962(c). There is nothing in
either the statutory language or the legislative history that
supports the appellants' contention that these words mean different
things as applied to different types of enterprises. Courts are
not charged with the task of writing statutes or improving upon
them but, rather, with the more mundane task of figuring out,
consistent with the statutory text, what the authoring Congress
intended. This division of functions, as well as basic principles
of statutory construction, counsels persuasively against a court
trying to tease from the simple word "affect" sophisticated
gradations of meaning that will vary from situation to situation.
See Ratzlaf v. United States, 510 U.S. 135, 143 (1994) ("Ascribing
various meanings to a single iteration of [a word] . . . would open
Pandora's jar.").3
3
Among their gallimaufry of arguments, the appellants suggest
that our opinion in United States v. McCormack, 371 F.3d 22, 28
(1st Cir. 2004), vacated on other grounds, 543 U.S. 1098 (2005),
required a showing of a heightened effect on commerce to sustain a
Hobbs Act conviction when the victim of the robbery was not a
business. This suggestion overlooks the fact that we applied a de
minimis standard in McCormack itself. See id. (stating that the
evidence showed "a 'realistic probability' that the [underlying
crime] would have a de minimis effect on interstate commerce").
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The appellants try to clear this hurdle by using the
Sixth Circuit's decision in Waucaush as a springboard. That court
adopted the position that the appellants espouse, holding that the
RICO statute reaches an enterprise engaged in noneconomic violent
crime only if the enterprise's activities have a substantial effect
on interstate commerce. 380 F.3d at 255-56. The appellants invite
us to follow Waucaush. We respectfully decline the invitation.
In reaching this result, the Waucaush court did not
employ any of the usual tools of statutory construction. The
absence of anything in the reasoning of that court that explains
how it is possible, consistent with sound canons of statutory
construction, to read the word "affect" as possessing two different
meanings depending upon additional facts not mentioned in the
statute itself, makes the decision suspect.
Instead of relying upon principles of statutory
construction, the Waucaush court based its holding on a professed
desire to "avoid interpreting a statute to prohibit conduct which
Congress may not constitutionally regulate." Id. at 255.4 Echoing
this refrain, the appellants argue, in effect, that application of
The language in McCormack to which the appellants advert relates to
the degree of scrutiny, not the quantum of proof.
4
We think it is useful to note at this juncture that Waucaush
was decided without the benefit of the Supreme Court's decision in
Gonzales v. Raich, 545 U.S. 1 (2005), a precedent that we find
instructive on the constitutional issue. See Part II(B)(2), infra.
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the RICO statute to their activities raises grave constitutional
concerns and, for that reason, we should abstain from reading the
statute as encompassing noneconomic activities that have only a de
minimis effect on interstate commerce. To hammer home this point,
they remind us that the Supreme Court recently deployed the
constitutional avoidance doctrine in construing a federal arson
statute to avoid commerce power concerns. See Jones v. United
States, 529 U.S. 848, 857-58 (2000) (construing 18 U.S.C. §
844(i)).
This argument reflects a misunderstanding of the
operation of the doctrine of constitutional avoidance. Since Jones
and Waucaush were decided, the Supreme Court has made it clear that
the doctrine does not serve to give alternative meanings to
statutory phrases in cases in which a statute's application might
be constitutionally dubious. Courts simply are not "free to
'interpret' statutes as becoming inoperative when they 'approach
constitutional limits.'" Clark v. Martinez, 543 U.S. 371, 384
(2005). Rather, the doctrine of constitutional avoidance operates
at "the lowest common denominator," providing a single definition
for a phrase that is then applied even in cases in which a broader
reading would not be constitutionally dubious. Id. at 380.
That ends this aspect of the matter: because, in Marino,
we already have defined the word "affecting" as used in the RICO
statute, we are not now free to alter the meaning of that term for
-24-
a particular fact pattern. Nor is the option of limiting the
definition of the term "enterprise" to profit-seeking entities open
to us. See Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249,
262 (1994). Given the case law, there is simply no room remaining
for efforts at constitutional avoidance.
Jones is not to the contrary. In that case, the Court
focused upon a particular phrase in the federal arson statute:
"used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce." 18 U.S.C. § 844 (i).
The Court determined that the word "used" denotes "active
employment." Jones, 529 at 855. Utilizing that definition, it
concluded that the statute did not cover the burning of owner-
occupied residential real estate. See id. at 859. The Court did
not give the statutory language a case-specific meaning but,
rather, provided a single definition applicable in all cases.5 The
appellants ask us to do something very different here: to give two
divergent meanings to a single word in a single statute and to pick
and choose between those definitions depending on the facts of
future cases. We are not willing to undertake so exotic a mission.
5
The Jones Court specifically distinguished the phrasing of
the arson statute from statutes reaching all activity "affecting
commerce," describing the latter phrase as "words that, when
unqualified, signal Congress' intent to invoke its full authority
under the Commerce Clause." Jones, 529 U.S. at 854. Given that
the RICO statute uses precisely this phraseology, we do not think
that Jones lends any support to the notion that the words "affect
. . . commerce" may be read vagariously in the name of
constitutional avoidance.
-25-
In a final sortie, the appellants argue that the district
court erred in refusing to limit the definition of conduct that
"affect[s]" commerce to conduct detrimental to commerce. This
argument is gleaned from the Supreme Court's holding in Scheidler,
510 U.S. at 262, that RICO could be applied to an enterprise that
engaged in racketeering activity notwithstanding the absence of an
economic motive. The Scheidler Court reasoned that "[a]n
enterprise can surely have a detrimental influence on interstate or
foreign commerce without having its own profit-seeking motives."
Id. at 258. The appellants read this language as implying that
only detrimental effects on commerce are within the contemplation
of the RICO statute when applied to enterprises that are not
economically motivated.
Although one district court has read Scheidler in this
restrictive manner, see United States v. Garcia, 143 F. Supp. 2d
791, 815 (E.D. Mich. 2000), we are not persuaded. The fact that
the Scheidler Court discussed only detrimental effects is something
of a makeweight; that analysis corresponded to the facts of the
particular case. Nothing in the opinion suggests that the Court's
casual reference to "detrimental influence" was intended to limit
the "affecting commerce" language of the RICO statute.
The right of the federal government to use the power
conferred by the Commerce Clause for regulatory objectives, apart
from the direct promotion and protection of interstate commerce,
-26-
has been ingrained in our jurisprudence for over a century. See,
e.g., Champion v. Ames (The Lottery Case), 188 U.S. 321, 362
(1903). Because the word "affect" has an established meaning in
statutes defining the scope of federal jurisdiction as bespeaking
an intention to legislate to the outermost perimeter of Congress's
Commerce Clause power, see Jones, 529 U.S. at 854, statutes
regulating undescribed activities that "affect" interstate commerce
perforce must reach all activities that come within Congress's
power. This paradigm includes ensuring that the tools of commerce
are not employed in a manner injurious to the public. Hodel v. Va.
Surface Min. & Reclam. Ass'n, Inc., 452 U.S. 264, 281-82 (1981).
Against this backdrop, we cannot say that the word
"affect," as used in the RICO statute, is restricted to conduct
that produces detrimental effects on commerce. This is especially
true where, as here, we are asked to apply the definition in a
subset of RICO cases (i.e., cases involving enterprises engaged
exclusively in noneconomic activities), thereby creating an
anomalous situation in which a single word in a single statute
simultaneously would have varying meanings, depending on context.
We conclude, therefore, that the district court did not err in
refusing to deviate from the accepted meaning of the phrase
"affect[ing] . . . commerce."
2.
-27-
We move now to the appellants' most touted claim of
error: that the RICO statute, as applied to an enterprise engaged
exclusively in noneconomic criminal activity, is unconstitutional.
In framing this claim, the appellants place great weight on a
trilogy of recent Supreme Court cases establishing limits on the
federal government's power to legislate under the Commerce Clause.
See United States v. Morrison, 529 U.S. 598, 627 (2000); Jones, 529
U.S. at 859; United States v. Lopez, 514 U.S. 549, 567 (1995).
These cases, in combination, galvanized the Sixth Circuit in
Waucaush, so the opinions deserve careful attention.
In the first of these cases, the Court struck down a
federal statute that, without reference to any effect on commerce,
criminalized the possession of a firearm within 1,000 feet of a
school. Lopez, 514 U.S. at 551. In concluding that Congress
lacked power under the Commerce Clause to enact the school-zone
legislation, the Court explained that the commerce power may only
be used to justify three different kinds of laws: those regulating
the channels of interstate commerce, those regulating the
instrumentalities of and things moving in interstate commerce, and
those regulating activities substantially affecting interstate
commerce. See id. at 558-59. Because it is this third category of
regulatory authority that is in issue here, we elaborate briefly on
it.
-28-
With respect to this third category, the Court noted that
individual instances of regulated conduct need not be substantial
as long as the aggregate conduct exerts a substantial effect on
interstate or foreign commerce. See id. The Court warned,
however, that aggregation is appropriate only as to "economic"
activities. Id. at 560. The Court has since defined "economic,"
in the relevant sense, as relating to the "production,
distribution, or consumption of commodities." Gonzales v. Raich,
545 U.S. 1, 25 (2005) (quoting Webster's Third New International
Dictionary 720 (1966)).
The second case in the trilogy built upon this foundation.
There, the Court struck down the Violence Against Women Act, which
had sought to provide federal civil remedies to victims of gender-
motivated violence. Morrison, 529 U.S. at 602. Notwithstanding a
congressional finding that gender-motivated violence exerts a
substantial drain on the economy, the Morrison Court "reject[ed] the
argument that Congress may regulate noneconomic, violent criminal
conduct based solely on that conduct's aggregate effect on
interstate commerce." Id. at 617. The Court explained that "the
suppression of violent crime and the vindication of its victims" was
quintessentially within the police power of the several states (and,
by implication, not within the federal commerce power per se). Id.
at 618.
-29-
The remaining case in the trilogy is Jones. As previously
discussed, see supra Part II(B)(1), the Jones Court held that the
incineration of private residences was beyond the reach of a federal
arson statute. 529 U.S. at 859. That narrow interpretation enabled
the Court to avoid "grave and doubtful constitutional questions."
Id. at 857.
Drawing on these precedents, the appellants maintain that
their criminal activities are an almost exact match for the violent
criminal conduct that the Morrison Court refused to aggregate (and,
thus, placed beyond the reach of Congress's Commerce Clause power).
They add, moreover, that federal regulation of noneconomic street
crime under a theory of aggregation would obliterate any semblance
of a constitutional limit on federal power. Cf. Lopez, 514 U.S. at
567 (commenting that the Constitution's enumeration of federal
powers "presupposes something not enumerated").
We share the appellants' concern that the government's
theory here, aggressively pursued, might threaten to trespass on an
area of traditional state concern. But though the argument has some
bite, it ultimately fails to persuade.
The principal problem with the argument is that it runs
at cross purposes with the Supreme Court's decision in Raich (the
Court's most recent explication of the scope of federal power under
the Commerce Clause). The Raich decision is critically important
for present purposes because it is more directly on point than any
-30-
case in the earlier trilogy. Lopez and Morrison involved facial
challenges to federal statutes: in each case, the parties asserted
that a particular statute or provision fell outside Congress's
commerce power in its entirety. Jones was an exercise in statutory
construction.
The case at hand, however, entails an as-applied challenge
to a generally valid federal statute. Raich is of the same genre;
it involved a request "to excise individual applications of a
concededly valid statutory scheme." Raich, 545 U.S. at 23. The
Raich Court deemed this distinction "pivotal" because when "the
class of activities is regulated and the class is within the reach
of federal power, the courts have no power to excise, as trivial,
individual instances of the class." Id. (internal quotation marks
omitted). Raich supplies a gloss on the earlier trilogy and, in the
bargain, offers meaningful guidance as to how courts should approach
as-applied challenges under the Commerce Clause.
In Raich, the Supreme Court upheld two provisions of the
Controlled Substances Act, 21 U.S.C. §§ 841(a)(1), 844(a), as
applied to the intrastate and noncommercial cultivation of medical
marijuana. Raich, 545 U.S. at 9. There, the plaintiffs sought to
define their activity at a level of specificity designed to
highlight its noneconomic nature. The Court rejected this effort
at miniaturization, preferring instead to defer to Congress's
declaration of the level of specificity with which an activity
-31-
should be classified for the purpose of determining whether that
activity, in the aggregate, affects interstate commerce. See id.
at 30. The Court refused to credit either the Ninth Circuit's
effort to isolate a separate and distinct class of activity, id. at
26, or the state legislature's effort to "surgically excise[]"
medical marijuana from the generality of the drug laws, id. at 30.
The Court chose instead to defer to Congress's decision not to
distinguish between medical marijuana cultivated for noncommercial
purposes and the mine-run of marijuana cultivation. Id. at 22.
Because there was no basis on which "to excise individual components
of that larger scheme," the Court concluded that marijuana
cultivation writ large was the appropriate activity to be considered
in the Commerce Clause calculus. Id. at 28. Accordingly, the
plaintiffs' as-applied challenge failed. See id. at 32-33.
Of course, Raich is arguably distinguishable from the case
at hand on the ground that marijuana is a fungible commodity,
capable of seeping into the interstate market regardless of the
purpose for which it is grown. But we refuse to accord decretory
significance to a distinction that the Raich majority did not deem
decisive. The majority emphasized that it is the "class of
activity" that is relevant. Id. at 17. Such classes need not be
delineated with "scientific exactitude." Id. This formulation is
markedly different from the one offered by Justice Scalia, who
argued unsuccessfully that Congress may regulate noneconomic
-32-
intrastate activities "only where the failure to do so could . . .
undercut its regulation of interstate commerce." Id. at 39 (Scalia,
J., concurring in the judgment) (alteration in original). While
Justice Scalia attributes this view to the majority, see id., we
read the majority opinion — especially its disclaimer of "scientific
exactitude" — as declining to require so rigid a taxonomy. See id.
at 26-27 (opinion of the Court) (requiring only that Congress act
"rationally" when making a "policy judgment" that purely intrastate
activities are an essential part of the larger regulatory scheme).
We think that Justice Scalia's election not to join the Court's
opinion bears witness to the majority's unwillingness to take a more
extreme view.
Refined to bare essence, Raich teaches that when Congress
is addressing a problem that is legitimately within its purview, an
inquiring court should be slow to interfere. Assuming the existence
of a rational basis for the solution that Congress has devised, the
court should respect the level of generality at which Congress chose
to act. See id. at 22. It is simply too "impractical" for a court
to insist that Congress make "detailed findings proving that each
activity regulated within a comprehensive statute is essential to
the statutory scheme." Id. at 21 n.32.
Given the lessons of Raich, it is evident that the
appellants' constitutional argument — like that of the Waucaush
court — misapprehends the relevant unit of analysis. The linchpin
-33-
of their argument is the fact that Stonehurst's activities were
undertaken without an economic motive. In the long run, however,
that isolated fact is of little significance. The correct mode of
analysis requires a more global view. "Congress's power to
criminalize . . . conduct pursuant to the Commerce Clause turns on
the economic nature of the class of conduct defined in the statute
rather than the economic facts . . . of a single case." United
States v. Morales-de Jesús, 372 F.3d 6, 18 (1st Cir. 2004) (emphasis
supplied).
Thus, the class of activity is the relevant unit of
analysis and, within wide limits, it is Congress — not the courts
— that decides how to define a class of activity. All that is
necessary to deflect a Commerce Clause challenge to a general
regulatory statute is a showing that the statute itself deals
rationally with a class of activity that has a substantial
relationship to interstate or foreign commerce. See Maryland v.
Wirtz, 392 U.S. 183, 196 n.27 (1968). The intrastate or noneconomic
character of individual instances within that class is of no
consequence. See id. This core principle is fully applicable to
criminal statutes. See Perez v. United States, 402 U.S. 146, 154
(1971) (cited with approval in Lopez, 514 U.S. at 558).
The appellants' argument cannot withstand scrutiny under
this framework. The RICO statute by its terms is limited to
racketeering enterprises that "affect . . . commerce," and the VICAR
-34-
statute is similarly circumscribed. This jurisdictional element
ties the statutes directly to commerce in a more explicit way than
the statutes at issue in Lopez, 514 U.S. at 561, or Morrison, 529
U.S. at 611, or, since neither section 841(a)(1) nor 844(a) has a
nexus requirement, even Raich. See United States v. Crenshaw, 359
F.3d 977, 986-87 (8th Cir. 2004) (drawing this distinction with
respect to VICAR).
What is more, the general class of activity is a wholly
legitimate target of Commerce Clause legislation. Racketeering
activity, as a general matter, is based largely on greed. Cf. 1
Timothy 6:10 ("[T]he love of money is the root of all evil.").
Particular manifestations include loansharking, extortion, and a
host of other financially driven crimes. See 18 U.S.C. § 1961(1)
(defining "racketeering activity"). Therefore, that class of
activity is sufficiently economic in nature that it may be
aggregated for Commerce Clause purposes. See Perez, 402 U.S. at 154
(upholding aggregation of extortionate credit transactions).
Given the obvious ties between organized violence and
racketeering activity — the former is a frequent concomitant of the
latter — we defer to Congress's rational judgment, as part of its
effort to crack down on racketeering enterprises, to enact a statute
that targeted organized violence. See Raich, 545 U.S. at 22
(describing as a "modest" task judicial scrutiny of whether Congress
had a rational basis for encompassing particular activity within the
-35-
sweep of a statute); Crenshaw, 359 F.3d at, 986 (upholding VICAR
against a Commerce Clause challenge and discussing the legitimacy
of targeting violence in aid of racketeering as a means of
controlling racketeering enterprises). Thus, applying the RICO
statute to the appellants' activities does not offend the Commerce
Clause.6
3.
We next examine the appellants' contention that the
government failed to adduce evidence sufficient to show even a de
minimis connection between Stonehurst's activities and interstate
commerce. Because Stonehurst has not been engaged in racketeering
activity of an economic nature, we employ heightened scrutiny
throughout this examination. See United States v. McCormack, 371
F.3d 22, 28 (1st Cir. 2004) (discussed supra note 3), vacated on
other grounds, 543 U.S. 1098 (2005).
The evidence most loudly bruited by the government relates
to the fact that one of the shootings perpetrated by Stonehurst
occurred in a round-the-clock tire shop engaged in interstate
commerce. The shooting took place after midnight and the ensuing
investigation caused the shop to close for several hours.
6
To be sure, this degree of deference to congressional
classifications may create perverse incentives. Yet, one of the
dissenters in Raich made this argument, see Raich, 545 U.S. at 46
(O'Connor, J., dissenting), and the majority bluntly rejected it.
See id. at 25 n.34 (opinion of the Court). We, like the Justices,
are confident that political checks and balances will prevent any
such legislative overreaching.
-36-
The government first posits that the temporary closing of
a business engaged in interstate commerce had an effect on commerce
sufficient to satisfy the de minimis standard. In support of this
proposition, it cites cases such as United States v. Vega Molina,
407 F.3d 511, 527 (1st Cir. 2005), United States v. Juvenile Male,
118 F.3d 1344, 1349 (9th Cir. 1997), and United States v. Davis, 30
F.3d 613, 615 (5th Cir. 1994). But the suggested comparison is not
apt: in those cases, the closed business was itself the target of
a planned robbery. In contrast, the Stonehurst members had no
designs on the tire shop per se; they merely held a grudge against
one of the shop's customers and happened to find it convenient to
ambush him there.
To add another distinguishing dimension, the closings in
the cited cases were for longer intervals and, thus, caused
considerably more disruption of the business. See, e.g., Vega
Molina, 407 F.3d at 527 (describing a full-day closure); Juvenile
Male, 118 F.3d at 1349 (describing a closure lasting "several
days"); Davis, 30 F.3d at 615 (describing the temporary shutdown of
four gas stations). In contrast, the tire shop here was closed, in
the dead of night, for a matter of hours. Moreover, the proprietor
testified that he "suspected" that some business had been lost
because there was less "paperwork" than usual but he could not
definitively identify any such shortfall.
-37-
The government also posits that Stonehurst members'
regular use of cellular telephones as a means of coordinating their
activities comprised the requisite nexus to commerce. But again,
the cases that it cites are of scant assistance. In each of them,
the court mentioned telephone use only after it had enumerated a
series of more binding links to commerce. See United States v.
Delgado, 401 F.3d 290, 297 (5th Cir. 2005) (chronicling involvement
in international drug trafficking, use of the mails, and use of
Western Union); United States v. Pipkins, 378 F.3d 1281, 1294-95
(11th Cir. 2004) (describing trafficking of women and recruitment
of prostitutes across state lines), vacated on other grounds, 544
U.S. 902 (2005).
To be sure, one court has ruled that "telephone use by the
[enterprise] sufficiently affects interstate commerce to satisfy the
RICO nexus requirement," United States v. Muskovsky, 863 F.2d 1319,
1325 (7th Cir. 1988), but the enterprise at issue there was engaged
in economic activity. We are more dubious here both because the
enterprise was devoted to noneconomic activities and because the
government's evidence concerning cell-phone use was skimpy.
The government's best evidence on this point consisted of
testimony to the effect that gang members communicated with each
other by cell phone in order to keep abreast of important
information, such as when things had become "hot" following a
shooting. In addition, at least two shootings attributable to
-38-
Stonehurst (those directed at Wendover members Luis Carvalho and
Antonio Cabral) were precipitated by cell-phone calls to or between
Stonehurst members identifying where the intended victim might be
found. There was, however, some countervailing evidence. For
example, the government's star witness, Augusto Lopes, stated that
Stonehurst did "[n]ot necessarily" use cell phones to discuss acts
of violence because "they can be bugged."
In the end, we need not resolve whether either the tire
shop or cell-phone evidence, alone or in tandem, suffices to make
out the requisite de minimis connection between the enterprise and
interstate commerce. As we explain below, there is surer footing
in this case for a finding that the government satisfied the
"affecting commerce" element of the offense.
The record reflects that Stonehurst maintained an arsenal
— no fewer than nine different firearms used by Stonehurst members
in carrying out Stonehurst business. This and other evidence led
the district court to conclude that Stonehurst was a "massive
purchaser of guns." With one exception (a Smith & Wesson revolver
made in Massachusetts), all the firearms acquired by Stonehurst had
been manufactured outside of Massachusetts and, thus, had moved in
interstate commerce.
The appellants try to blunt the force of this evidence by
citation to United States v. Kallestad, 236 F.3d 225 (5th Cir.
2000), in which the Fifth Circuit stated "[i]t is one thing for
-39-
Congress to prohibit possession of a weapon that has itself moved
in interstate commerce, but it is quite another thing for Congress
to prohibit homicides using such weapons." Id. at 229. Were the
wielding of out-of-state guns, simpliciter, the only hook on which
the "affecting commerce" element could be hung, the Fifth Circuit's
caveat might give us pause. Here, however, the "gun" evidence is
strengthened measurably by testimony that, during the currency of
the RICO conspiracy, Lattimore traveled from Massachusetts to New
Hampshire, purchased a firearm, and brought it back to
Massachusetts. That weapon became part of Stonehurst's arsenal and
was later fired by a Stonehurst member at a car in which Wendover
members were thought to be riding.
The fact that a Stonehurst member actually crossed state
lines to purchase a weapon for use in carrying out the enterprise's
activities is entitled to great weight in the decisional calculus;
crossing state lines for purpose of engaging in a commercial
transaction is a paradigmatic example of an activity that falls
within the compass of the commerce power.7 Cf. United States v.
Clark, 435 F.3d 1110, 1114 (9th Cir. 2006) (noting that "requiring
travel in foreign commerce, coupled with engagement in a commercial
7
Travel to another state in order to effectuate a gun purchase
distinguishes this case from Garcia, a district court case relied
on by the appellants. In finding insufficient evidence of economic
activity to sustain a RICO conviction of a street gang, the Garcia
court took pains to note the absence of any allegation "that the
members of the [gang] traveled out of state to purchase weapons."
143 F. Supp. 2d at 807.
-40-
transaction while abroad, implicates foreign commerce to a
constitutionally adequate degree"). This purchase, coupled with
the evidence concerning the amassed arsenal of firearms manufactured
out of state, suffices to satisfy RICO's interstate commerce nexus.
It follows that the tire shop evidence and the evidence of cell-
phone use are, in the circumstances of this case, merely frosting
on the cake.
C.
The final element in the RICO equation requires the
government to show that a defendant participated in the conduct of
the enterprise "through a pattern of racketeering activity." 18
U.S.C. § 1962(c). A pattern requires a minimum of two racketeering
acts. See id. § 1961(5). The word "through" implies a nexus
between these racketeering acts and the enterprise. That nexus
exists when a defendant is able to commit the predicate racketeering
acts either by means or as a result of his involvement with the
enterprise. See Marino, 277 F.3d at 27.
In this instance, the jury found that Nascimento had
committed two racketeering acts: (i) shooting DoCanto and (ii)
conspiring to kill Wendover members. He argues before us that the
evidence did not support a finding that a relationship existed
between the DoCanto shooting and his membership in Stonehurst. If
this argument prevails, it would thwart the government's effort to
-41-
prove a pattern of racketeering activity, and Nascimento's
conviction would topple.
Nascimento marshals a similar argument concerning his
VICAR conviction for assault in aid of racketeering. VICAR forbids,
inter alia, committing assault with a dangerous weapon "for the
purpose of gaining entrance to or maintaining or increasing position
in" a racketeering enterprise. Id. § 1959(a)(3). Thus, if the
evidence was inadequate to support a finding that he shot DoCanto
to maintain his position in Stonehurst, then the VICAR conviction
cannot stand.
In approaching these arguments, one fact sticks out like
a sore thumb. Despite the perfervid rhetoric in which the arguments
are couched, Nascimento does not challenge the sufficiency of the
government's proof that he actually shot DoCanto. Our task,
therefore, is to undertake de novo review in order to ascertain
whether, taking all reasonable inferences in the government's favor,
rational jurors could find beyond a reasonable doubt that the
necessary relationship existed between Nascimento's shooting of
DoCanto and his membership in Stonehurst. See Connolly, 341 F.3d
at 22.
The record reflects that on the night of November 29,
1998, DoCanto was standing near her car. Her boyfriend, Anildo
Rocha, was inside the vehicle. Nascimento opened fire, hitting
DoCanto in the left leg. Although there is no evidence that either
-42-
DoCanto or Rocha were Wendover members, Augusto Lopes testified that
Nascimento stated that he had fired the shots with the intention of
hitting the man in the car, whom he mistakenly believed to be
DoCanto's brother, Joaquim "Big Rocky" Martins. In light of this
testimony, Nascimento's claim of error boils down to a plaint that
the evidence was too thin to warrant a finding that Nascimento
understood his intended target — Big Rocky — to be affiliated with
Wendover.
This plaint rests heavily on Lopes's further testimony
that "Big Rocky . . . wasn't associated with nobody." Lopes added,
however, that Big Rocky "was actually involved in the problems."
The jury, of course, was entitled to discount the former statement
and to credit the latter. See, e.g., United States v. Alicea, 205
F.3d 480, 483 (1st Cir. 2000) (acknowledging jury's "prerogative to
credit some parts of a witness's testimony and disregard other
potentially contradictory portions").
Endeavoring to parry this thrust, Nascimento argues that
the allusion to "the problems" might be a reference to the fact that
Big Rocky was a witness to the Mendes murder committed by Nardo
Lopes, not a reference to any involvement with Wendover. That
interpretation is propped up by Rodrigues's testimony that he
understood Big Rocky to be one of the witnesses against Nardo Lopes.
But the government counters, with considerable force, that at a
different place in his testimony Augusto Lopes unequivocally named
-43-
Big Rocky as a Wendover collaborator. The government also notes
that the jury heard testimony from an admitted Wendover member,
Adiello DaRosa, that Big Rocky was associated with Wendover.
Sifting through conflicting testimony and determining
where the truth lies is the sort of work that falls squarely within
the jury's province. So it is here: the question is one of fact,
and the answer depends on what evidence the jurors deign to credit.
When a jury, which has seen and heard the witnesses, picks and
chooses among conflicting accounts, an appellate court should almost
always honor that choice. See United States v. Gobbi, 471 F.3d 302,
311 (1st Cir. 2006) (explaining that it is "ultimately the province
of the jury to assess the significance of any contradictions in the
evidence").
That effectively ends this aspect of the matter. Once the
jury had decided which account of Big Rocky's status should be
credited, the legal implications of that decision were clear.
Consequently, we reject Nascimento's claim of error.8
8
Nascimento offers a laundry list of cases in which courts
have overturned convictions under RICO and VICAR based on the
prosecution's failure to establish the requisite nexus between the
predicate act and the enterprise. See, e.g., United States v.
Bruno, 383 F.3d 65, 85-86 (2d Cir. 2004); United States v.
Ferguson, 246 F.3d 129, 136 (2d Cir. 2001); United States v.
Polanco, 145 F.3d 536, 539-40 (2d Cir. 1998); United States v.
Thai, 29 F.3d 785, 818 (2d Cir. 1994). Without exception, these
cases — all of which either explore the degree of attenuation
permissible between a racketeering act and an enterprise or
highlight the utter absence of any evidence supporting a
relationship between the two — are inapposite.
-44-
Nascimento argues in the alternative that, given the
contradictions in the testimony, the jury could not rationally have
found him guilty beyond a reasonable doubt. He cites United States
v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998), for the familiar
proposition that when the evidence, viewed in the light most
favorable to the prosecution, supports both a theory of guilt and
an equally likely theory of innocence, reasonable jurors must
perforce entertain a reasonable doubt. In this case, however, the
jury was under no compulsion to deem the contrasting theories of
guilt and innocence equally likely. The jury plausibly could have
credited the clear and unambiguous statement of DaRosa, himself a
Wendover stalwart and presumably a reliable source of information
about the gang's composition, that Big Rocky was a Wendover member
and was for that reason "part of the problems."
Nascimento advances a further argument to the effect that
VICAR requires an even tighter relationship between a predicate
racketeering act and an enterprise because the act must be "for the
purpose of gaining entrance to or maintaining or increasing position
in an enterprise." 18 U.S.C. § 1959(a). This argument is
foreclosed by precedent: the VICAR provision is satisfied as long
as the criminal act can be said to have been expected of the
defendant by reason of his membership in the enterprise. United
States v. Tse, 135 F.3d 200, 206 (1st Cir. 1998). The totality of
-45-
the evidence in regard to Nascimento's shooting of DoCanto passes
that test.
To say more on this point would be superogatory. We
conclude, on whole-record review, that the evidence was sufficient
to sustain both an inference that Nascimento fired at DoCanto as
part of an effort to eliminate a member of the rival Wendover gang
and an inference that this conduct was expected of him by reason of
his membership in Stonehurst. Thus, there is an adequate
relationship, for both RICO and VICAR purposes, between the
challenged racketeering act and the enterprise.
III.
The jury convicted both Talbert and Nascimento on a trio
of charges: a substantive RICO offense, RICO conspiracy, and VICAR
conspiracy to commit murder. In each case, one of the racketeering
acts undergirding the substantive RICO charge was conspiracy to
commit murder. These two appellants now say that the interplay
between the substantive RICO charge and the conspiracy charges
offended the Double Jeopardy Clause. For the reasons that follow,
we reject their importunings.
One branch of the Double Jeopardy Clause forbids the
government from punishing a person twice for the same offense. See
U.S. Const., amend. V. Despite this proscription, the same conduct
sometimes can be punished under more than one statute. See, e.g.,
United States v. Morris, 99 F.3d 476, 477-78 (1st Cir. 1996). Such
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multiple punishments are permissible if the underlying offenses are
distinct from one another, that is, if each offense "requires proof
of a fact that the other does not." Blockburger v. United States,
284 U.S. 299, 304 (1932).
Here, Talbert and Nascimento argue that because conspiracy
to commit murder served as a predicate act for their substantive
RICO convictions, the VICAR charge that they conspired to commit
murder lacked any element distinct from the substantive RICO charge.
Second, and relatedly, each of them argues that his conviction for
conspiracy to violate RICO was a lesser included offense within his
substantive RICO conviction and, thus, barred under the Blockburger
test. See Brown v. Ohio, 432 U.S. 161, 168 (1977) (discussing the
relationship between lesser included offenses and double jeopardy).
These arguments are not persuasive. In Marino, 277 F.3d
at 39, we held "that a substantive RICO violation and a RICO
conspiracy are not the same offense for double jeopardy purposes."
In the same opinion, we rejected the notion that a VICAR violation
is a lesser included offense of a substantive RICO violation. See
id.
The appellants' attempts to distinguish Marino are
unavailing. They focus on two facts: (i) that Marino involved a
greater number of racketeering acts and (ii) that here, unlike in
Marino, the purpose of the enterprise (killing Wendover members) was
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identical to the object of the charged conspiracy. Neither of those
distinctions makes a dispositive difference.
The Blockburger test "depends on the elements of the
crimes and not the similarity of the underlying facts." United
States v. LeMoure, 474 F.3d 37, 43 (1st Cir. 2007). Thus, in
resolving a double jeopardy challenge such as that advanced here,
a court should not bog itself down in the minutiae of the evidence
underlying the charges but, rather, should confine itself to the
statutory elements of the two offenses. Because a "RICO conspiracy
and a RICO violation do not necessarily require the participation
of the same people," Marino, 277 F.3d at 39 (emphasis in the
original), it is beside the point whether, in a particular instance,
the racketeering acts are few or many, or whether the RICO
conspirators and the RICO participants are identical. By the same
token, the fact that the purpose of the enterprise and the object
of the conspiracy happen to coincide is of no moment. See United
States v. Sessa, 125 F.3d 68, 72 (2d Cir. 1997).
The appellants' fallback position rests on Wharton's Rule,
which carves out a modest exception to the general principle that
there is no bar to conviction for both a criminal conspiracy and a
substantive criminal offense committed within the course of the
conspiracy. See United States v. Previte, 648 F.2d 73, 76-77 (1st
Cir. 1981) (explicating the rule). Wharton's Rule is limited to
instances — adultery is a prime example — in which, as a statutory
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matter, the completed offense necessarily involves conspiracy
between the participants. See United States v. Iannelli, 420 U.S.
770, 785 (1975). We rejected a Wharton's Rule challenge in an
earlier RICO case, see Marino, 277 F.3d at 39, and because the rule
operates at the statutory level, see Iannelli, 420 U.S. at 780, we
likewise reject the appellants' fact-bound attempt to resurrect what
amounts to the same argument.
That brings this chapter to a close. The short of it is
that these appeals do not implicate the Double Jeopardy Clause.
IV.
The last leg of our journey requires us to consider
Nascimento's assertion that the district court erred in refusing to
suppress evidence seized from his room during an arrest.
The facts are as follows. Nascimento was facing state
criminal charges arising out of the DoCanto shooting. He failed to
report as required and a state magistrate issued a default warrant.
On December 7, 1999, the police — armed with the arrest warrant but
no search warrant — arrived at Nascimento's home. Following a
consensual entry, they informed Nascimento (who was clad only in his
underwear) that he was to be arrested. Because Nascimento seemed
compliant, the officers did not handcuff him.
Two officers escorted Nascimento through the house to his
bedroom so that he could get dressed. Once there, the officers did
a quick sweep of the bed for weapons and sat Nascimento on it. One
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of the officers proceeded to the clothes closet located eight to ten
feet from the bed. The officer performed a brief sweep of the
closet, noticed an unlocked cabinet on the top shelf, reached in,
and discovered a gun frame. At that point, Nascimento was
handcuffed.
Following his indictment in this case, Nascimento moved
to suppress the gun frame as the fruit of an illegal search. See
U.S. Const., amend. IV. The district court denied the motion.
Nascimento appeals from this ruling.
It would be difficult to regard the introduction of the
gun frame as harmless: it was matched by a government ballistics
expert to shell casings found at one of the Stonehurst shootings.
The fact that Nascimento had possession of the gun frame also served
to corroborate Augusto Lopes, who testified that Nascimento had
disassembled a gun following a shooting, handed the barrel to Lopes
for disposal, and kept the frame. Given the force of this evidence,
we think it best to address Nascimento's claim on its merits.
At the outset, it seems useful to distinguish between
searches incident to arrest and protective sweeps. Officers
effecting an arrest are entitled to make a search incident to that
arrest. Chimel v. California, 395 U.S. 752, 763 (1969). The scope
of a search incident to an arrest is restricted to the area within
the immediate control of the arrestee, that is, "the area from
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within which he might gain possession of a weapon or destructible
evidence." Id.
Protective sweeps are conceptually distinct from searches
incident to arrest. They are not justified by the potential threat
posed by the arrestee but, rather, by the potential threat posed by
unseen third parties who may be lurking on the premises. See
Maryland v. Buie, 494 U.S. 325, 336 (1990). Consequently, a
protective sweep is limited to a "cursory visual inspection of those
places where a person might be hiding." Id. at 327; see United
States v. Martins, 413 F.3d 139, 149-51 (1st Cir. 2005) (discussing
protective sweep doctrine).
In this case, the district court cited both Chimel and
Buie. We confine our analysis more narrowly: because the cabinet
searched was too small to accommodate a person, we concentrate on
whether the search passes muster under Chimel.
There is some disarray in the case law as to standard of
review that pertains to a determination of the permissible scope of
a search incident to arrest. Some courts have used a clearly
erroneous standard. See, e.g., United States v. Morales, 923 F.2d
621, 626-27 (8th Cir. 1991); United States v. Bennett, 908 F.2d 189,
193-94 (7th Cir. 1990). Others have undertaken de novo review.
See, e.g., United States v. Abdul-Saboor, 85 F.3d 664, 667 (D.C.
Cir. 1996); United States v. Johnson, 18 F.3d 293, 294 (5th Cir.
1994) (opinion on rehearing). In our judgment, a bifurcated
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standard of review is appropriate. See United States v. Espinoza,
___ F.3d ___, ___ (1st Cir. 2007) [No. 06-2065, slip op. at 5-7]
(discussing general approach to appellate review of district court
rulings on suppression motions); cf. United States v. Coker, 433
F.3d 39, 41 (1st Cir. 2005) (discussing the bifurcated standard of
review applicable to suppression rulings in the context of the Sixth
Amendment right to counsel). Under that approach, we review the
district court's factual findings for clear error but review de novo
its ultimate constitutional conclusion.
Before moving to the heart of Nascimento's argument, we
pause to brush aside a potential complication. The police
originally encountered Nascimento in the front of the apartment. At
that time, the cabinet was unquestionably beyond his immediate
control. Under the circumstances, however, it was not inappropriate
for the police to escort Nascimento to his bedroom in order that he
might get dressed.
When police encounter and arrest a partially clothed
individual in his home, the need to dress him may constitute an
exigency justifying the officers in entering another room in order
to obtain needed clothing. See United States v. Gwinn, 219 F.3d
326, 333 (4th Cir. 2000). Generalizations are hazardous because one
can imagine infinitely variable fact patterns. It suffices to say
that both human dignity and the New England climate counseled here
in favor of a more complete wardrobe. In addition, the district
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court supportably found that the police neither manipulated the
situation nor used Nascimento's dishabille as a pretext to carry out
an otherwise impermissible search. Accordingly, the conduct of the
police in deciding to dress the suspect falls within the reasonable
latitude afforded arresting officers in coping with exigent
circumstances. See United States v. Cook, 277 F.3d 82, 86 (1st Cir.
2002) (explaining that "common sense and practical considerations
must guide judgments about the reasonableness of searches and
seizures").
This brings us to the search itself. The evidence at the
suppression hearing indicated that, as a matter of policy, Boston
police officers in similar situations allowed arrestees to select
the clothes that they wished to wear. The arrestee, however,
typically would not be given direct access to the closet. Thus, the
question reduces to whether a cabinet eight to ten feet away from an
unrestrained suspect can be said to be within the suspect's
immediate control. Emphasizing that there were two officers between
him and the closet, Nascimento argues that we should answer this
question in the negative. To buttress his argument, he calls our
attention to United States v. Johnson, 16 F.3d 69 (5th Cir. 1994),
modified on rehearing, 18 F.3d 293, in which the Fifth Circuit found
that a briefcase some eight feet away from an unrestrained suspect
was not under his immediate control. See id. at 70-72. In so
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holding, the court stressed that four officers were present in the
room. Id. at 71.
In our estimation, Johnson is of little help to
Nascimento. There, unlike in the case at hand, the officers "never
felt threatened" and never "believed that Johnson was about to
destroy evidence." Id. at 72. Despite that mindset, they engaged
in "precisely the type of generalized, warrantless search prohibited
by Chimel." Id.
This case is a horse of a different hue. The officers
were arresting a person whom they knew to have been charged with a
crime of violence. Law enforcement officers who embark on perilous
duties are not expected to ignore the need for commonsense
precautions. And here, in sharp contradistinction to Johnson, the
officers targeted their search to the closet, which was about to
become the locus of activity. The district court found as a fact
that the closet was readily accessible to Nascimento. That finding
was not clearly erroneous.
That is game, set, and match. Given the finding of
accessibility, the closet (and, thus, the cabinet) was within
Nascimento's immediate control.9 Accordingly, we uphold the district
court's ultimate conclusion that the scope of the search was within
9
This result is consistent with our earlier implication that,
in a small space such as a 10-foot by 10-foot room, even a
handcuffed suspect has a "grab area" covering most of the room.
See United States v. Ortiz, 146 F.3d 25, 28 (1st Cir. 1998).
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permissible limits. See Abdul-Saboor, 85 F.3d at 671 (holding an
area that is "conceivably accessible" to arrestee to be within his
immediate control). On that basis, the district court appropriately
denied the motion to suppress.
V.
We need go no further. Concluding, as we do, the
appellants' arguments lack force, we affirm their convictions. We
add only that while this case may venture near the outer edge of
conduct encompassed by the RICO statute, Stonehurst's activities do
not cross that line.
Affirmed.
— Concurring Opinion Follows —
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BOUDIN, Chief Judge, concurring. Although several
important issues are raised on these appeals, the one of greatest
continuing importance concerns RICO's commerce requirement, see 18
U.S.C. § 1962(c) (2000), and the constitutional challenge by the
defendants based on United States v. Lopez, 514 U.S. 549 (1995), and
United States v. Morrison, 529 U.S. 598 (2000)--the duo itself
having been distinguished more recently by Gonzales v. Raich, 545
U.S. 1 (2005).10
RICO reaches an enterprise that "affect[s]" interstate
commerce, 18 U.S.C. § 1962(c), a term of art usually signifying
Congress's intent to regulate to the limit of its Commerce Clause
powers. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115
(2001). In our case, the evidence showed the gang's regular use of
guns that had moved in interstate commerce, as well as one trip by
a gang member across state lines to procure such weapons. The guns
were not peripheral; they related directly and centrally to the
gang's activities. This nexus is enough to satisfy the Commerce
Clause. That the acquisition of such weaponry swells, rather than
impedes, interstate commerce long ago ceased to matter. United
States v. Darby, 312 U.S. 100, 113 (1941).
10
Jones v. United States, 529 U.S. 848 (2000), is also cited
along with the Lopez-Morrison duo, but Jones was a statutory
interpretation case and did not directly engage the scope of
Congress's commerce power.
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The commerce link in our case is at least as strong and
arguably stronger than that of a prior felon who acquires, in some
local "street" transaction, a gun that happened to be made in
another state. The act of a felon receiving or possessing such a
gun (or, indeed, even a single bullet) has for many years been a
federal criminal offense, see 18 U.S.C. § 922(g)(1), based on the
prior movement of the gun in interstate commerce. Scarborough v.
United States, 431 U.S. 563 (1977). Here, multiple weapons and
their use as part of the criminal enterprise were amply proved.
Given Scarborough, our own case appears a fortiori.
Some courts in upholding the felon-in-possession statute
assert that it regulates an "instrumentality" of commerce, namely
the gun. E.g., United States v. Dorris, 236 F.3d 582, 586 (10th
Cir. 2000). But in truth the statute criminalizes conduct--
possession or receipt of a gun by a felon--and the gun's provenance
provides a sufficient nexus to commerce to permit federal regulation
of that conduct. The offending conduct here is the use of guns to
kill people as part of a criminal enterprise; and the interstate
origins of the guns permit Congress to regulate that conduct. If
Congress can regulate the mere possession of a gun because the gun
at one time traveled in interstate commerce, surely it can also
regulate an enterprise that uses such guns to kill.
There are other analogous statutes. The federal car-
jacking statute, 18 U.S.C. § 2119 (2000), makes murder and lesser
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violence into federal crimes simply because the vehicle once moved
in interstate commerce, and it has repeatedly been upheld. E.g.,
United States v. Cobb, 144 F.3d 319, 320-21 (4th Cir. 1998). And
courts regularly uphold wire and mail fraud convictions because a
single call or mailing, playing an incidental role in the scheme,
creates a link to an instrumentality of interstate commerce, e.g.,
Schmuck v. United States, 489 U.S. 705, 710-715 (1989); Pereira v.
United States, 347 U.S. 1, 8 (1954). In fact, the call or mailing
may itself be intrastate so the link is the use of facilities that
also serve interstate customers, e.g., United States v. Gil, 297
F.3d 93, 100 (2d Cir. 2002).
Lopez and Morrison concerned statutes that did not require
any jury finding that the conduct in the particular case used
facilities of interstate commerce or affected such commerce. Lopez,
514 U.S. at 561; Morrison, 529 U.S. at 613. The legality of each
statute in these two cases depended on imputing (in Lopez) or
upholding (in Morrison) a generalized Congressional determination
that a class of primarily local activities taken together had some
cumulative effect on commerce, even if individual effects were too
small to count. Lopez, 514 U.S. at 563; Morrison, 529 U.S. at 615.
The cumulative impact theory had been well established in
commerce clause cases since Wickard v. Filburn, 317 U.S. 111 (1942).
In Lopez and Morrison, the Supreme Court restricted the theory to
cases of economic activity. Lopez, 514 U.S. at 561; Morrison, 529
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U.S. at 611. But the restriction, which we must assume continues to
be good law, has nothing to do with a case where the statute
requires and the evidence shows that the defendants themselves had
the requisite effect on commerce--here by the purchase and
possession of weaponry.
Raich is yet a different kind of problem. Marijuana
cultivation taken as a whole is a commercial activity affecting
interstate commerce; but the Supreme Court upheld the criminal ban
even where marijuana is grown for personal non-economic use and
consumed in-state. Its rationale was that Congress could reach
cases of this kind because, given the practical difficulties of
distinguishing, a ban on such intrastate, noncommercial production
was an "essential part of the larger regulatory scheme." Raich, 545
U.S. at 27.
The present case is easier for the government than was
Raich. To repeat, the RICO statute requires that the particular
enterprise itself affect interstate commerce and a jury, supported
by evidence, determined that the enterprise in this case did affect
such commerce. The guns traveled in interstate commerce; so too did
one of the enterprise's gun purchasers. This is sufficient to pass
constitutional muster. Cf. Scarborough, 431 U.S. 563. However much
Raich may or may not affect Lopez and Morrison, the convictions in
this case satisfy established precedent.
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Congress' use of the Commerce Clause to reach local crimes
or criminals plausibly linked in the individual case to interstate
commerce may or may not be good federalism policy but its legality
is too well established to be revisited by the lower federal courts.
Conceivably, the link in a particular case may be too slight or
faint; every murder is of someone whose next meal might otherwise
have come from a large supermarket chain purchasing its products
interstate. See Lopez, 514 U.S. at 564. But the arsenal of guns in
this case is not a slight or faint connection and is sufficient to
sustain federal jurisdiction under existing Supreme Court precedent.
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