United States v. Nascimento

(7th Inc., Inns, F.2d Gurnee America, of STATES UNITED the Social Se- Cir.1992). computing While Appellee, a “mechani- been might have curity offset applied it determining whether task,” cal v. not. Defendant, NASCIMENTO, Jackson inter- prejudgment an award Because Appellant. discretionary, we is cases in ERISA est America, Appellee, United States remand the on court the district leave whether first instance decision period for interest prejudgment award Defendant, Appellant. Talbert, Lance 2005, dur- to December March 2004 from post- erroneously granted it ing which America, Appellee, United States can court The district interest. judgment argument Unum’s First address thus prejudg- to award inequitable

it would Defendant, Lattimore, Kamal because Rad- period this for interest ment Appellant. for much responsible Trust was ford 06-1152, 06-1153, 06-1154. Nos. delay. Appeals, States Court initially appealed also Trust Radford Circuit. First benefits to award decision court’s district Octo- than rather starting June 8,May 2007. Heard now settled parties have ber July Decided this issue issue, on appeal remand, On accordingly dismissed. Trust’s address Radford court can

district to additional it is entitled

contention the settlement. flowing from

relief accrual issue the benefits appeal postjudgment award dismissed. December from March

interest re- case is and the

22, 2005 is reversed to determine district to the

manded interest prejudgment to award

whether proceed- and for further period

the same No costs opinion. with this

ings consistent awarded.

are Schiff, Sals- whom John with

Ryan M. were on Salsberg & Schneider berg and brief, Nascimento. appellant for Cullen, Jr., Law with whom F. Albert brief, Cullen, on F. Jr. was of Albert Office appellant Talbert. for Murphy whom Wayne Murphy, R. brief, appellant Associates was & Lattimore. Rotker, Attorney, United A.

Michael (Criminal Di- of Justice Department States Section), Mi- vision, with whom Appellate Attorney, Sullivan, United States J. chael Heinrich, A. MacKin- B. Glenn Theodore Cabell, Unit- L. Assistant lay, and Donald brief, for Attorneys, were on ed appellee. SELYA, BOUDIN, Judge, Chief

Before STAFFORD,* Judge, Circuit Senior Judge. District Senior SELYA, Judge. Circuit Senior concerns in this case pivotal issue Influ- of the Racketeer application Act Organizations Corrupt enced gang street (RICO), to a 18 U.S.C. * Circuit, designation. sitting by the Eleventh Of violent,

engaged in noneconomic, but crim- slaying, he upon resolved his release from inal activity. That possesses issue consti- prison, in July of to kill potential implications tutional weighty enough to against witnesses his brother. That re- have led one of our sister circuits to fash- solve extended to many of his old Wend- ion a special, rigorous, more version of over Street associates. statutory RICO’s “affecting commerce” re- late Augusto Lopes began asso- quirement for use in connection with de- ciating Monteiro, with Manny who intro- fendants involved with enterprises that are duced him to a group of individuals whose engaged exclusively in noneconomic crimi- base of operations was Stonehurst Street nal activity. See Waucaush Lopes’s Dorchester. new friends were

States, (6th Cir.2004). part of a gang street that controlled Stone- Although we are reluctant to a cir- create hurst Street. He soon learned that Stone- cuit split, conclude, we after grappling with hurst members problems” “had with their question, this difficult that the normal re- Wendover counterparts. Although the quirements of the RICO apply statute source was clearly established, never defendants involved with enterprises that antagonism was real: during the period are engaged only in noneconomic criminal from 1998 to a wave of violence activity. Based on that conclusion and on transpired in which our Stonehurst members resolution golconda of a of other issues repeatedly shot at Wendover ably raised members and highly competent counsel, Wendover members retaliated in affirm the appellants’ kind. convictions. The Augusto Lopes integrally tale follows. involved in

this cacophony of ongoing mayhem. I. September In of grand federal begin We with a synopsis brief jury returned thirty-three count su- facts. We will upon embellish that synop- perseding naming indictment thirteen de- sis as we reach and particular discuss is- fendants. Three of these defendants are sues. appellants here. respect With them, mid-1990s, In the a group youths of of the flagship was that charge they had vio- Cape ancestry Verdean routinely congre- lated RICO through their membership in a gated around Wendover Street the Dor- racketeering enterprise: Stonehurst. The Boston, chester section of Massachusetts. indictment alleged that pri- Stonehurst’s (Nardo one youths of these mary purpose was “to shoot and kill mem- Lopes) killed Mendes). (Bobby another bers, associates, perceived supporters Nardo then went hiding; into as of the of a rival gang in Boston known as Wend- time of case, trial in this he remained a over.” To buttress this allegation, the fugitive justice. indictment nearly enumerated two dozen brother, Nardo’s Augusto Lopes, was instances of murder and assault with in- also a regular. Wendover Though he was to kill tent purportedly committed Sto- incarcerated at the time of the Mendes nehurst members.

1. The indictment charged also ingly, another judge the trial ruled as a matter of law purpose of the enterprise was “to sell crack that there was insufficient prove marijuana." However, cocaine and the evi- Stonehurst engaged in dence at trial indicated that while individual drug dealing. We assume the correctness of engaged Stonehurst members had drug ruling. trafficking, itself Stonehurst had not. Accord- appellant, third jurors The convicted ap- all three individuals, including Seven Lattimore, conspir- both a RICO on assorted Kamal together tried were pellants, count. and a substantive RICO acy count involvement from their stemming charges immediately However, court the district Lopes became Augusto Stonehurst. with as to the acquittal against judgment granted testified witness government Latti- allies, jury acquitted two as did count. The latter Stonehurst his former (Marcelino charges charge and of a firearms witnesses more cooperating other conspiracy. govern- The and VICAR Burgo). assault Jason VICAR Rodrigues and a num- testimony from adduced ment also verdict, appellants Following various about eye-witnesses other ber of or, in the acquittal judgments moved evi- testimony, ballistics shootings. Police alternative, See Fed.R.Crim.P. new trials. prosecu- dence, completed like and the these court denied The district tion’s case. in full. motions trial, four day twenty-six Following a 15, 2005, the district December On ap- three acquitted. The defendants were in- ato 171-month Nascimento sentenced fare as well. did pellants term, a 57-month Talbert carcerative appellant, one jurors convicted term, to a 46- and Lattimore incarcerative racketeering, 18 Nascimento, of Jackson timely term. These incarcerative month 1962(c), conspiracy, racketeering § U.S.C. ensued. appeals mur- 1962(d), to commit conspiracy § id. racketeering in violation in aid of der II. Racketeering Aid of Crimes the Violent must coalesce Five elements 1959(a)(5), a (VICAR), § VIC- id. statute violation. out a substantive make 1959(a)(3), and § charge, id. AR assault “(1) an enter must show: of a in the commission use of firearm (2) existed; enterprise participat prise 924(c). racke- violence, id. crime interstate affected in or its activities ed by spe- supported teering conviction (3) was em commerce; the defendant Nascimento the effect that findings to cial the en associated by or was ployed (ii) (i) con- Zilla DoCanto had shot (4) or conducted defendant terprise; Wendover. members of to murder spired enter in conduct participated con- rejected government’s jury The (5) of racketeer pattern through prise; had perpetrated tention Nascimento Marino, activity.” ing him of a acquitted shooting and second Cir.2002). (1st appel The F.3d 18 U.S.C. violating second count sufficiency of the evi challenge the lants 924(c). § second, fifth ele first, on the dence appellant, convicted second jurors ments. Talbert, conspiracy on a RICO Lance RICO, is in VICAR, play aswell count, and a count, RICO a substantive that a defendant requires VICAR here. conspiracy. murder charging VICAR count in re of violence a crime committed had have that Talbert specially jury found value pecuniary something for DaRosa turn Adiello member Wendover shot maintain advance or from, in or order murder members conspired and had affecting within, enterprise position had his also government Wendover. in a engaging that is commerce in interstate engaged having Talbert charged activity. 18 U.S.C. racketeering dropped pattern those shooting but another sufficiency Thus, a successful § 1959. close of evidence. charges challenge to the RICO convictions also will An enterprise chiefly distinguished from serve to undermine the VICAR convic- pattern of racketeering by activity Similarly, tions. inasmuch as Nascimen- possesses fact that it goal some purpose to’s conviction under 18 U.S.C. 924 was pervasive more and more enduring than predicated on his having committed a VIC- the instant gratification that can accrue DoCanto, AR assault on Zilla that convic- from the successful completion of each will tion be if nullified the VICAR charge particular criminal act. Connolly, is found to unsupportable. F.3d at 25. Although the appellants’ arguments Here, the appellants argue that gov-

come a kaleidoscopic array of shapes ernment failed to present sufficient evi- and sizes (including frontal attacks on the dence of the or, existence anof enterprise sufficiency evidence, questions about alternatively, that the jury district court’s statutory construction, chal- constitutional instructions obscured the difference be- lenges, and complaints jury about instruc- tween “enterprise” RICO’s and “pattern” tions), organize our discussion themati- elements. vein, In a argue related they cally, by element element. government that the prove failed to was of sufficient duration

A. vis-a-vis the time frame that was set forth in the indictment. We argu- address these The first element of a of ments sequentially. requires fense proof of the of an existence enterprise. The enterprise need not be a

legitimate business or a form of organiza tion sanctioned state law. United We first ponder the sufficiency of the Turkette, States v. 576, 587, 101 government’s evidence concerning the ex- 69 L.Ed.2d 246 It istence of enterprise. With respect to only “need be a group persons associat issue, we review the record de novo to together ed purpose common of en whether, determine taking the evidence gaging a criminal course of conduct.” and all reasonable inferences therefrom United States v. Connolly, light most hospitable to govern- (1st Cir.2003) (citations and quota internal case, ment’s theory of the jury rational omitted). tion marks could find beyond a reasonable doubt that had established the dis-

Despite the absence of require puted element of the offense. See United sanction, ment of formal the government States v. Cruz-Arroyo, nonetheless prove must that the enterprise Cir.2006). in existed some coherent and cohesive Turkette, form. 452 U.S. at attacking the sufficiency of the 2524. It follows that enterprise must government’s evidence anent the existence have been an “ongoing organization” oper of an enterprise, the appellants point to ating as a “continuous unit.” Connolly, testimony from various cooperating wit 341 F.3d at 25. who nesses described Stonehurst as a events,

In all the enterprise must aggregation loose of friends that lacked be distinct pattern from the of colors, racketeer rites, initiation and a formal hierar ing activity that fifth, constitutes the and chy. For example, Augusto Lopes testi final, element of a RICO offense. See fied that Stonehurst “just was a group” Turkette, at 101 S.Ct. 2524. whose members “were all friends with other’s to each out, witnesses assassinate acted other, individuals certain each trained And, finally, members at nothing crimes. do didn’t individuals some and vision night of in the use point one members at other Burgo said Similarly, all.” tac- binoculars, evasion police and name.” goggles, a “just Stonehurst that efficiently to dis- them more testimony this to enable that tics suggest appellants killing of purpose States their shared carry out from United case tinguishes this Cir.2001), (1st a case members. Patrick, Wendover of application upheld the which we in light most Taking this evidence colors that “had gang to a street RICO conclude, government, to favorable who members ... had older signs, and though court, even that did the district as ones, re- its members younger instructed accouter- some lacked Stonehurst it had family, and as gang to ferred a gangs, street more structured ments were decisions important where ‘sessions’ it had a suffi- find that jury could rational 19. Id. at made.” an constitute to shape ciently well-defined mentioned the factors agree We Stone- sense. requisite enterprise question to the are relevant Patrick time; over cohesion group exhibited hurst an en- constitutes gang a street whether re- and shared membership pooled its or absence presence their terprise a involved had sources; —but individuals Here, the issue. dispositive as self-identified belonging and sense testimony that other provided members; group had Stonehurst reasonably to jury prompted have could think that We goals. set well-honed enter- was an Stonehurst conclude barely, to constitute enough, if this used all, members Stonehurst After prise. Connolly, F.3d enterprise. re- that were of firearms shared cache 27. gang. property as garded by and used handed around weapons were to members Stonehurst several different contention: a related Talbert makes erst- One sympathizers. shoot Wendover support to suffices if the even member, tes- Rodrigues, Stonehurst while enterprise, anwas finding that Stonehurst purchase had traveled that he tified were jury instructions court’s district and clarified group” “the weapons umbrage at the directs his confusing. He “Stonehurst.” he meant group” “the a RICO instruction court’s testimony about Stone- In addition struc- an “ascertainable not have need testi- arsenal, contains the record hurst’s in- acknowledges, this As Talbert ture.” members that Stonehurst mony suggesting law good as approved been has struction organiza- to an belonging as self-identified Patrick, circuit. See able to were witnesses Cooperating tion. individ- variety of a wide identify precisely jury instruc challenges Some Stonehurst. being associated uals of discretion. for abuse are tions reviewed ability also displayed witnesses Perez, F.3d See, e.g., United friends. members distinguish between however, Cir.2002). Others, as ele nature the in, say, the sign error kept members Then, too, Stonehurst claim type of offense. That of an one ments and informed another on one tabs See, Mar e.g., novo review. engenders de be- be “hot” things would when another 28; also United ino, see 277 F.3d They shooting. acted of a recent cause 343 F.3d Figueroa-Encarnacíon, by attempting another of one behalf (1st Cir.2003) (noting the standard-of-re- enterprise. objection This centers on the distinction). view Because Talbert’s chal- longevity of enterprise. the It is not lenge is rooted not in an principle abstract claim that Stonehurst’s existence was too of law but in the trial court’s choice of ephemeral satisfy the minimum dura- language, with a view to minimizing poten- required by statute, tion the RICO see juror confusion, tial the abuse of discretion Co., H.J. Inc. v. Nw. Bell Tel. governs standard our review. (1989) 106 L.Ed.2d 195 challenged Because instruction (discussing continuity requirement ap- court, explicit holding tracks an of this plicable to enterprises), but rather a at a Talbert starts considerable disadvan- claim that the duration of Stonehurst’s ex- insists, however, tage. where, He as istence, proven, as fell short of period here, only there is “minimal” evidence of suggested in the indictment. the existence of an enterprise, the trial The argument proceeds should avoid the topic of ascertain- as follows. case, able structure altogether. First, In a close appellants note that the indict- runs, instruction, his thesis such an though specified ment that the named defendants correct, technically promotes juror confu- “[fjrom unknown, a time but at least sion. July until the date of the Indict- September 2004—“did unlaw- argument

This ment”' — is untenable. When fully and knowingly conduct partici- an instruction is pertinent to the issues pate, directly and indirectly, the conduct submitted to jury and constitutes an of the law, [enterprise, accurate statement affairs of the through it is hard to imagine any basis for a claim pattern of error. of racketeering activity.” They Keene, See United States v. point then out that the district court told (1st Cir.2003). Here, moreover, jury, objection, without that in order to great district court took pains empha element, establish the enterprise gov- size that enterprise merely “[a]n is not ernment had to prove that “the enterprise related assortment of criminal activities.” in essentially unchanged [had] continuefd] Rather, said, the court “there must be during form substantially the peri- entire goal purpose some engaging in a —a alleged od (emphasis indictment” beyond course of this isolated conduct— Next, supplied). the appellants remind us benefit that can come from the commission that “when a cause is submitted jury to the of each criminal act.” The court also made instruction, under an patently incorrect clear that “[t]he element [of internally inconsistent, to which no is different offense] from the racketeering timely objection lodged, has been the in- activity element.” These instructions were struction becomes the law of the case.” pellucid as to the distinctions between the Gomes, States v. “enterprise” and “pattern” elements of the (1st Cir.1992). question then offense. We see no possibility realistic becomes—or appellants so say— they juror were a source of confusion. whether provided “evi- Consequently, the district court did not dence sufficient to establish the elements abuse its discretion in charging jury required by the actual instructions given.” it did. United States v. Zanghi, 189 F.3d (1st Cir.1999). appellants conclude The appellants lodge question that this objection final must be answered finding that Stonehurst constituted an negative. Rodrigues’s testi- a view of isthmian con- is this too rejected court The district mony. testimo- Rodrigues’s that It found struct. enterprise that the finding a

ny supported shootings that Rodrigues testified at least until least 1997 from existed “start- and Stonehurst Wendover between evidence that the found It further ongo- “still ... back in '95” were ed that Wendover/Stonehurst indicating least, testimony very this At the ing.” killing in the Mendes origins its had feud conclusion court’s the district supports that the conclusion support enough to was Stonehurst, entity dedicated as an that far as as back was active Wendover, Stonehurst existed on wreaking havoc no there was acknowledged that itWhile tenure Rodrigues’s through the end existence Stonehurst’s then, evidence is whether question, The found such the court through testimony supported jury verdict can unnecessary substantial- because time evidence truncated concerning somewhat enterprise activity of the the relevant ly all span. time 1996-2001 during the place

took Cir- citing the Second appellants, The that, added The court frame. Morales, States v. in United decision cuit’s event, duration the exact (2d Cir.1999), it insist F.3d of- element an essential was Morales, al- the indictment In cannot. view, demon- In its fense. belonged to that the defendants had leged continuity, and no required strated enterprise that existed continuous exigible. was more proof, The Id. at 78. nine-year period. that the en- however, conclusively showed by analyz court concluded years seven had dormant for terprise been of vari happened type had ing what its because period the middle of proof “the occurs when A variance ance. incarcerated. membership had been entire ma that differs depicts a scenario at trial the evidence court held that at 79. The Id. limned terially from the scenario the “enter- to show that insufficient was v. Escobar-de United indictment.” alleged in the duration existed for prise Cir.1999). (1st Jesús, The court Id. at 81. indictment.” not auto a variance does The existence whether to “consider refused of a convic the vacation matically result in finding of support a sufficient setting only requires A variance tion. on racketeering enterprise” shorter prejudicial. if it is of a conviction aside a sin- charged “indictment that the ground Villarman-Oviedo, 325 States v. jury was and the enterprise, nine-year gle Cir.2003). Discerning no F.3d only convict that it could instructed variance, the particular from this prejudice racketeering-dependent racketeering and appellants’ mo district denied enter- that the specific if it found counts acquittal or judgment for either tions existed.” in the indictment out set prise trial. new Id. case asseverate appellants the district attack appellants They are pod. in a peas Morales are Their first levels. ruling on several court’s the decision underlying The concerns they not. concede fact-oriented: attack from what very different are Morales a Stone- he was testified that Rodrigues Morales, govern- here. but involved through from 1997 member hurst loose play fast and attempted activi ment only he described they assert that it did continuity requirement This RICO’s and 2000. during 1998 occurring ties —and in way so threatened the impair tice focus of charges the against rights defendants’ them, (by constructing the in- but also confirms that govern- the dictment in a manner that ment allowed the did not benefit in any way from introduction, trial, in a single describing longer slightly period concerning two distinct indictment. organiza- criminal tions). circumstances, Under those Under these circumstances, we do not readily why understand the Morales court think that government the can be said to was disinclined to the government allow to have assumed the burden of proving the argue, after putting jury signifi- before the operation of Stonehurst from 1996 to 2004 cantly inculpatory peri- evidence from both merely by mentioning those dates in the ods, that either organization, itself, by indictment. period represented a could have satisfied continuity the require- allegation; mere factual it did not consti would, ment. effect, That given have tute an element of the That offense. is a government the a second bite at the cher- significant difference. See United States ry. v. Mueffelman, Cir. 2006) (describing the difference between a vastly scenario here is different. deviation from the charging terms and a While may the indictment have marginally deviation from facts alleged in an indict overclaimed—the record very contains lit- ment). tle concerning the period-— 2002-2004 In the analysis, last we see no there merit in question was no of shifting enterpris- appellants’ the “law the argument. case” es and attempt no to stack the by deck The district charged jury in rele introducing damning bits evidence from part vant government had the organization’s different conduct ain dif- burden of proving that enterprise op Moreover, ferent era. erated continuously “during substantially had ample proof adduced that a single period the entire alleged in the indict continuously active in the ment.” “Substantially” term, is a relative slightly period. Indeed, narrowed trial which invites a weighing of the salience of seems proceeded to have on the premise covered against items salience non- that this period narrowed was the relevant covered items. United States v. Cas Cf. time frame.2 taneda, (5th Cir.1998) 162 F.3d 832 838 matters, To cinch appellants had (holding that a party has “substantially every reason to believe that period performed” when his “relatively insignifi through 2001 would be cru- cant omissions” by are “dwarfed per [his] cial period for purposes of the RICO and formance”). Bearing in mind that virtual other racketeering-dependent counts. Of ly all the overt acts that comprised the the twenty-one racketeering acts listed in substance of the indictment complet were indictment, twenty were alleged to ed prior to we think rational have (the occurred in that time frame lone jury could conclude that the period form exception general charge that Stone- —the through was “substantially” hurst members had conspired to kill period entire covered the indictment. Wendover members —was described as B. having spanned the period from until 2004). This not only erases doubt that A second element of a violation gave indictment appellants fair no- an effect on interstate or foreign corn- 2. The transcript trial quite clearly reveals attempted to discuss matters outside that time judge district able reined in witnesses who frame. in no, enterprise that the they point out implicat- not is Foreign commerce merce. involved in found to be instructed there was here, question court the district ed re- a form of eco- trafficking plainly commerce drug the interstate jury that the — showing by a activity. would be satisfied quirement nomic a de had least actions that Stonehurst’s Although argument peculiar. is This commerce. on interstate minimis effect it, suggests in text of RICO nothing the unargu- been have instruction would This single urge us to read appellants See, RICO cases. in most ably correct requiring different in the statute as phrase 35; Marino, United 277 F.3d e.g., in a case in different situations: things (6th Riddle, in engaged eco- involving enterprise Cir.2001). that Stone- on the fact Seizing would have activity, government nomic ac- in economic engage not hurst did inter- effect on only show a de minimis to 1, the appellants supra note tivity, see commerce, in a case involv- whereas state In their different. this case is argue that in violence but enterprise engaged ing an RICO’s view, misstates the instruction activity, in economic to en- respect with statutory requirement show a more substantial have to would in eco- engaged that have not terprises reject We on interstate commerce. effect in the alterna- activity. They argue, nomic reading the statute. iridescent of this correct as tive, is that if the instruction statutory interpretation, of terms, applies matter statute By its applied as to in, is unconstitutional statute the activ- or any “enterprise engaged fallback, they as- As a enterprise. affect, foreign their or of which interstate ities that, can with- 1962(c). if the instruction even sert There 18 U.S.C. commerce.” in- attacks, the evidence these stand statutory language nothing in either the modest de satisfy even sufficient history supports legislative or each facet consider minimis standard. We these words appellants’ contention array. of this asseverational to differ- things applied mean different are not enterprises. Courts types of ent writing task statutes charged with the of contention with the appellants’ rather, We start but, upon them improving case, the RICO that, of on the facts out, figuring of mundane task more minimis than a de requires more statute text, what the statutory with the consistent This is an commerce. effect on interstate This divi- intended. authoring Congress held, battle; squarely has this court uphill functions, principles as well as basic sion effect on that a minimis explicitly, de construction, persua- counsels statutory required all that is commerce interstate trying to tease against a court sively element. See satisfy commerce RICO’s gra- sophisticated word “affect” simple Marino, 277 F.3d at 35. vary from meaning that will dations situation. situation ob- attempt to skirt this appellants Ratzlaf 135, 143, States, 510 U.S. rigorous a more suggesting stacle (1994) various (“Ascribing cases, one, 126 L.Ed.2d like this pertains standard word] meanings single [a to a iteration engaged has not a RICO which jar.”).3 open ... Pandora’s Mari- would activity. distinguish in economic To Cir.2004), grounds, 543 U.S. arguments, vacated other gallimaufry Among their (2005), 160 L.Ed.2d suggest opinion in United appellants our showing heightened effect on McCormack, required a States v. appellants try to clear this hurdle tutional avoidance doctrine construing by using the Sixth Circuit’s decision in federal arson statute to avoid commerce as a That springboard. Waucaush power concerns. See Jones v. United adopted position appellants States, 848, 857-58, holding that espouse, RICO statute (2000) 146 L.Ed.2d 902 (construing enterprise engaged reaches an in noneco- 844(i)). § 18 U.S.C. only enterprise’s nomic violent crime if the argument This reflects a misunderstand a activities have substantial effect on inter- ing operation of the doctrine of commerce. 380 state F.3d at 255-56. The constitutional avoidance. Since Jones invite us to appellants follow Waucaush. decided, Waucaush were Supreme respectfully decline the invitation. We Court has made it clear that the doctrine result, reaching this the Waucaush does not give serve to alternative mean employ any court did not of the usual tools ings to statutory phrases in cases which in statutory construction. The absence of application might statute’s be constitu in the anything reasoning of that court tionally dubious. simply Courts not are explains that how it possible, consistent “free to ‘interpret’ statutes as becoming with sound of statutory canons construc- inoperative they ‘approach when constitu tion, to read the word “affect” as possess- ” Martinez, tional limits.’ Clark v. 543 two different ing meanings depending 371, 384, U.S. 125 S.Ct. 160 L.Ed.2d upon additional facts not mentioned in the (2005). Rather, 734 the doctrine of consti itself, statute suspect. makes the decision tutional operates avoidance at “the lowest relying upon Instead of principles of denominator,” common providing single statutory construction, the Waucaush definition for a phrase applied that is then court based holding professed its on a in even cases in which a reading broader desire “avoid interpreting statute to would not be constitutionally dubious. Id.

prohibit conduct Congress may which not 380, 125 S.Ct. 716. constitutionally regulate.” Id. at 255.4 That aspect ends this of the matter: Echoing refrain, this appellants argue, because, Marino, in already we effect, in have de- that application of the RICO fined the word “affecting” as used in the statute to their grave activities raises con- statute, and, are not now stitutional we free to alter concerns for that reason, the meaning of that particular we should abstain term for a reading the statute fact pattern. as Nor encompassing option is the of limiting noneconomic activities only have a de definition “enterprise” minimis effect term interstate commerce. To profit-seeking hammer open home entities to us. See point, they Women, remind us that Org. the Su- Nat’l Scheidler, Inc. v. for preme recently Court deployed 249, 262, the consti- 510 U.S. 127 commerce to sustain a Act Hobbs conviction We think it juncture is useful to note at this robbery when the victim of not a that Waucaush was decided without the bene suggestion business. This overlooks the fact Supreme fit of the Court's decision Gon applied a de minimis standard in Raich, zales (stating

McCormack itself. id. that the (2005), precedent L.Ed.2d 1 that we find evidence showed "a probability’ 'realistic instructive on the constitutional issue. See [underlying crime] would have a de min- 11(B)(2), Part infra. commerce”). effect imis on interstate language in appel- to which McCormack degree lants advert scrutiny, relates to the quantum proof. Id. at motives.” law, profit-seeking case Given L.Ed.2d lan- read this appellants remaining no room simply there only detrimental implying guage avoidance. at constitutional efforts con- within the commerce are effects on In that contrary. not to the Jones is ap- statute when the RICO templation of particular upon case, focused the Court are not economi- enterprises plied “used statute: arson federal phrase cally motivated. inor foreign commerce or interstate com- foreign affecting interstate activity read court has district Although one 844(i). Court U.S.C. merce.” manner, see this restrictive Scheidler denotes “used” that the word determined Garcia, F.Supp.2d Jones, employment.” “active (E.D.Mich.2000), per not we are 791, 815 that defini- Utilizing 855, 1904. 120 S.Ct. Scheidler Court fact that the suaded. not did the statute tion, that it concluded effects some is only detrimental discussed resi- owner-occupied burning of the cover cor analysis that makeweight; a thing of 859, 120 id. at estate. real dential particular the facts of responded to give not did The Court 1904. S.Ct. that suggests opinion Nothing in case. meaning case-specific a language statutory to reference “detrimen casual the Court’s single a definition rather, but, provided to limit was intended tal influence” appellants in all cases.5 applicable language “affecting commerce” here: very different something ask us to do RICO statute. single meanings to divergent two give to to the federal right and pick and to statute single in word by the Commerce conferred depend- power use definitions those between choose apart objectives, are regulatory We cases. facts of future Clause ing on the protection a mis- promotion exotic so the direct to undertake willing commerce, ingrained has been of interstate sion. century. over jurisprudence for in our argue sortie, appellants In final (The Lottery See, Champion Ames e.g., refusing to in court erred that the district S.Ct. Case), 188 U.S. that “af- conduct definition of limit the “af- (1903). the word Because L.Ed. conduct detrimental to commerce fect[s]” meaning stat- in has an established fect” gleaned argument is This to commerce. jurisdic- of federal scope defining utes in holding Court’s Supreme from the legislate to an intention bespeaking tion as Scheidler, 114 S.Ct. 510 U.S. at Congress’s perimeter outermost to the enter- applied could be that RICO Jones, 529 see power, Clause Commerce activity racketeering engaged that prise regu- statutes at S.Ct. econom- of an notwithstanding the absence that “affect” activities undescribed lating reasoned Court The Scheidler ic motive. reach must perforce commerce interstate surely have can “[a]n that Congress’s come within all activities for- on interstate influence detrimental ensuring includes paradigm This power. own having its without eign commerce pre- statute uses that the RICO Given distinguished 1904. specifically Court The Jones we do not think cisely phraseology, from statutes this statute phrasing of the arson commerce,” “affecting support to the notion activity reaching all Jones lends that, may as "words read describing phrase latter ... commerce” words "affect Congress’ intent signal unqualified, when of constitutional vagariously in the name authority under Commerce full invoke its avoidance. Jones, 529 U.S. Clause." tools commerce are not em- concluding that ployed injurious in a manner to the public. Congress lacked power under the Com- Hodel v. Va. Min. & Reclam. merce Clause to enact the school-zone leg- Surface Ass’n, Inc., 264, 281-82, islation, the Court explained that the com- 2352, 69 L.Ed.2d 1 power merce may only justify be used to three different kinds laws: those regu- Against backdrop, we cannot lating commerce, the channels of interstate say “affect,” that the word as used those regulating the instrumentalities of statute, restricted conduct that things moving commerce, in interstate produces detrimental effects on commerce. and those regulating activities substantial- where, here, This especially true we ly affecting interstate commerce. See id. apply are asked to the definition in a sub 558-59, 115 S.Ct. 1624. Because it is (i.e., set of RICO cases cases involving category this third regulatory authority enterprises engaged exclusively in noneco- here, inis issue briefly elaborate activities), nomic thereby creating an ano on it. malous single situation which a word in a single statute simultaneously would respect have With category, this third varying meanings, depending on context. Court noted that individual instances of conclude, therefore, We that regulated district conduct need not be substantial court did not err in refusing to long deviate as as the aggregate conduct exerts a accepted meaning phrase of the substantial effect on interstate or foreign “affeet[ing] ... commerce.” commerce. warned, id. Court however, that aggregation appropriate is

2. only as to “economic” activities. Id. at 560, We move now to the 115 S.Ct. 1624. appellants’ The Court has since most “economic,” touted claim defined of error: that the sense, the relevant statute, applied relating as to an as distribution, en to the “production, gaged exclusively in or consumption noneconomic criminal of commodities.” Gon activity, Raich, is v. 1, 25, unconstitutional. zales 545 U.S. framing 125 S.Ct. claim, 2195, (2005) this the appellants place 162 great L.Ed.2d 1 (quoting Web weight on a trilogy of recent ster’s Third New Supreme International Dictionary (1966)). Court cases 720 establishing limits on the fed government’s eral power legislate under The second case in the trilogy upon built the Commerce Clause. See United States There, this foundation. the Court struck Morrison, 598, 627, 529 U.S. 120 S.Ct. down the Violence Against Act, Women 1740, (2000); Jones, 146 L.Ed.2d 658 529 which sought had to provide federal civil at 1904; U.S. United States remedies to gender-motivated victims of Lopez, S.Ct. Morrison, violence. 529 U.S. at cases, L.Ed.2d 626 These in S.Ct. 1740. Notwithstanding congres- combination, galvanized the Sixth Circuit sional finding gender-motivated that vio- Waucaush, so opinions deserve lence exerts a substantial drain on the careful attention. economy, the “rejected] Morrison Court In the cases, first of these the Court argument Congress may regulate struck that, down a federal statute noneconomic, without criminal violent conduct reference to commerce, effect crim- based solely on that conduct’s aggregate inalized the possession of a firearm within effect on interstate commerce.” Id. at 1,000 feet of a Lopez, school. 514 U.S. at 120 S.Ct. 1740. explained The Court case, parties in each eral statutes: and the crime of violent suppression “the provi- statute or particular victims” asserted that quintessen was of its vindication commerce Congress’s fell outside police power several sion tially within an exer- entirety. not within Jones was (and, in its by implication, power states se). Id. at per power statutory construction. commerce cise in federal 618, 120 S.Ct. hand, however, entails at The case is trilogy in the case remaining valid challenge generally to a as-applied discussed, supra see previously As Jones. gen- is of same Raich federal statute. 11(B)(1), Court held the Jones Part re; “to individ- request excise it involved residences private the incineration stat- concededly valid applications ual stat a federal arson the reach of beyond Raich, utory scheme.” That S.Ct. 1904. ute. 529 U.S. Raich Court deemed 2195. The enabled Court interpretation narrow “the when “pivotal” because distinction constitutional doubtful “grave and avoid class regulated and the class activities Id. at questions.” power, of federal within the reach excise, trivial, power no courts have appel precedents, on these Drawing (in- the class.” Id. instances of individual activities criminal maintain that their lants omitted). Raich quotation marks ternal for the violent match an almost exact are and, trilogy gloss on the earlier supplies a the Morrison Court criminal conduct meaningful guidance offers (and, thus, bargain, placed aggregate refused as-ap- approach courts should as to Commerce how Congress’s beyond the reach moreover, under the Commerce add, challenges plied They power). Clause noneconomic street Clause. regulation of federal would theory aggregation under a

crime Raich, upheld Supreme the Court In of a constitution any semblance obliterate of the Controlled Sub provisions two Lopez, 514 power. al limit on federal Cf. 841(a)(1), 844(a), §§ Act, 21 U.S.C. stances (commenting 567, 115 S.Ct. at U.S. noncom intrastate and to the applied of fed enumeration the Constitution’s marijuana. of medical mercial cultivation something not powers “presupposes eral There, Raich, 2195. at S.Ct. enumerated”). activity their sought to define plaintiffs concern appellants’ high We share to specificity designed at a level here, theory aggressive- government’s The Court nature. light its noneconomic trespass on threaten to ly might miniaturization, pursued, pre at rejected effort But state concern. area of traditional an dec Congress’s to to defer ferring instead bite, it some argument has though the specificity the level of laration of ultimately persuade. fails to for classified activity should be which an determining whether purpose of argu- with the problem principal

The interstate activity, aggregate, affects purposes with that it at cross ment is runs 2195. id. at (the commerce. in Raich decision Supreme Court’s to either refused credit The Court of the explication Court’s most recent separate a effort to isolate Ninth Circuit’s under Com- power of federal scope at activity, id. class of and distinct Clause). is crit- Raich decision merce effort legislature’s or the state S.Ct. purposes be- present for ically important marijuana medical “surgically excise[ ]” directly point than it is more cause laws, id. at drug of the the generality trilogy. Lopez and case earlier in chose Court challenges to fed- facial Morrison involved Congress’s stead to defer to decision not to bears majority’s unwilling- witness to the distinguish marijuana medical cul ness to take a more extreme between view. purposes tivated for noncommercial essence, Refined to bare Raich teaches marijuana the mine-run of cultivation. Id. Congress when is addressing prob- at 125 S.Ct. 2195. Because there was lem that legitimately is within its purview, no basis on which “to excise individual inquiring court should be slow to inter- scheme,” components larger of that fere. Assuming the existence of a rational marijuana Court concluded that cultivation basis for the Congress solution that has large writ appropriate activity was the devised, the court respect should the level considered the Commerce Clause generality Congress which chose to calculus. Id. at 125 S.Ct. 2195. Ac act. See id. 125 S.Ct. 2195. It is cordingly, plaintiffs’ as-applied chal simply “impractical” too for lenge 32-33, failed. See id. at Congress insist that make “detailed find- ings proving activity regulated that each within comprehensive statute is essential course, arguably distinguish- Of Raich is statutory to the scheme.” Id. at 21 n. able from the case at hand on ground 125 S.Ct. 2195. marijuana fungible commodity, is a Raich, Given the lessons of it is capable of seeping into the interstate mar- evident that appellants’ constitutional regardless ket purpose it which argument that of the Waucaush grown. is But —like we refuse to accord decre- misapprehends the relevant unit of tory significance court— distinction that the analysis. The linchpin argument of their majority Raich did not deem decisive. is the fact that Stonehurst’s activities were majority emphasized that it undertaken without an economic motive. activity” “class of that is relevant. Id. at run, however, long that isolated fact 17, 125 S.Ct. 2195. Such classes need not is of little significance. The correct mode be delineated with “scientific exactitude.” analysis requires global more view. Id. This formulation markedly different “Congress’s power to criminalize ... con Scalia, from the one offered Justice who pursuant duct to the Commerce Clause argued unsuccessfully that Congress may turns on the economic nature of the class regulate noneconomic intrastate activities conduct defined in the statute rather “only where the failure to do so could ... than the economic ... single facts of a regulation undercut its of interstate com- Jesús, case.” United States v. Morales-de 39, (Scalia, merce.” Id. at 125 S.Ct. 2195 6, (1st Cir.2004) 372 F.3d 18 (emphasis J., (alteration concurring in the judgment) supplied). in original). While Justice Scalia attrib- id., utes this view to the majority, see Thus, activity the class of is the read majority opinion especially its and, relevant unit analysis within wide — disclaimer of “scientific exactitude” —as limits, Congress it is the courts—that —not declining require rigid to so a taxonomy. decides how to define a of activity. class 26-27, See id. at 125 (opinion S.Ct. 2195 of All necessary is to deflect a Com Court) (requiring only that Congress merce challenge general Clause to a regu “rationally” act making when a “policy latory statute is a showing that the statute judgment” that purely intrastate activities itself rationally deals with a class of activi are essential part larger regula- ty that has a substantial relationship to scheme). tory We think that Justice Sca- foreign interstate or commerce. See Ma join Wirtz, lia’s election not to opinion ryland 183, 27, Court’s v. 392 U.S. n. 196 88

43 orga ties between (1968). the obvious Given 2017, L.Ed.2d 1020 20 5.Ct. activity— racketeering violence and nized of in character or noneconomic intrastate concomitant of frequent the former is of no class is within instances dividual rational Congress’s latter —we defer principle core id. This consequence. See to crack of its effort judgment, part statutes. See to criminal applicable fully is enterprises, to enact racketeering 146, 154, down on States, U.S. 402 Perez v. United violence. (1971) (cited targeted organized a statute 1357, 686 28 L.Ed.2d 91 S.Ct. 22, Raich, 2195 at 125 S.Ct. 545 U.S. at Lopez, 514 approval with judicial task (describing as a “modest” 1624). 115 S.Ct. had a ration Congress scrutiny of whether with- cannot argument appellants’ activi particular encompassing al basis scrutiny under this framework. stand statute); Cren sweep of a ty within the is limited by its terms RICO statute shaw, (upholding at VICAR 986 ... that “affect enterprises racketeering challenge and a Commerce Clause against sim- is commerce,” statute VICAR vio targeting discussing legitimacy jurisdictional This circumscribed. ilarly racketeering as means aid of lence in directly to com- ties the statutes element racketeering enterprises). controlling way than the explicit in a more merce Thus, statute to the RICO applying Lopez, 514 U.S. at issue statutes activities does offend appellants’ Morrison, 529 U.S. Clause.6 Commerce or, neither sec- since 844(a) re- 841(a)(1) a nexus has nor tion United States Raich. See even quirement, appellants’ conten examine next (8th We Crenshaw, 986-87 F.3d failed adduce tion

Cir.2004) re- (drawing distinction min- a de show even sufficient to VICAR). spect ac Stonehurst’s between imis connection more, class of activi- general isWhat Because commerce. tivities and interstate target of Com- wholly legitimate ty is racke engaged in has not been Stonehurst Racketeering legislation. merce Clause nature, we economic teering activity of an matter, based general activity, as throughout scrutiny heightened employ Timothy 6:10 greed. largely on Cf. United States this examination. See of all (“[T]he money the root love of Cir.2004) McCormack, evil.”). include manifestations Particular 3), on other (discussed vacated supra note extortion, a host of other loansharking, grounds, crimes. See U.S.C. financially driven L.Ed.2d 1961(1) “racketeering activi- (defining by loudly the bruited The most activity is Therefore, of that class ty”). fact one relates to may government that it in sufficiently nature economic by Stonehurst shootings perpetrated pur- Clause aggregated Commerce be shop tire in a round-the-clock Perez, 154, occurred 91 S.Ct. 402 poses. The commerce. in interstate engaged of extortion- aggregation (upholding 1357 midnight and transactions). place took after shooting ate credit rejected id. at majority bluntly it. See sure, and degree deference con- this 6. To be 34, (opinion of the 2195 perverse 25 n. 125 S.Ct. may create gressional classifications Justices, We, Court). are confident Yet, like the in the dissenters Raich one of incentives. prevent Raich, balances political checks will U.S. at argument, 545 this see made 46, overreaching. J., legislative (O’Connor, dissenting), such 2195 44

ensuing investigation shop caused the to See United Delgado, States v. 401 F.3d (5th Cir.2005) for several close hours. 297 (chronicling involve- drug ment international trafficking, use government first posits that mails, Union); and use of Western temporary closing of a engaged business Pipkins, United States v. 378 F.3d commerce interstate had effect on com- (11th Cir.2004) 1294-95 (describing traf- satisfy merce sufficient to the de minimis ficking of women pros- and recruitment of support standard. In proposition, it lines), titutes across state vacated on other cites eases such as Vega United States v. grounds, 161 Molina, (1st Cir.2005), 407 F.3d L.Ed.2d 275 Male, United States v. Juvenile 118 F.3d (9th Cir.1997), sure, and United To be one court has ruled that Davis, (5th “telephone by use [enterprise] suffi- Cir.1994). But the suggested comparison ciently affects interstate commerce to sat- cases, apt: is not in those isfy the closed busi- requirement,” the RICO nexus target ness was itself the of a planned States v. Muskovsky, 863 F.2d contrast, (7th robbery. In Cir.1988), the Stonehurst but enterprise at issue designs members had no shop the tire there engaged activity. in economic se; per they merely a grudge against held We are more dubious here both because one of the shop’s happened customers and was devoted to noneconomic to find it convenient to ambush him there. government’s activities because the evidence concerning cell-phone use was To add another distinguishing dimen- skimpy. sion, closings in the cited cases were and, thus, for longer intervals government’s caused con- best evidence on this siderably disruption more point testimony business. consisted of to the effect See, Molina, e.g., Vega 407 F.3d at 527 gang members communicated with (describing full-day closure); Juvenile each other cell phone order to keep Male, (describing information, clo- abreast of important such as lasting Davis, sure days”); “several things 30 when had become following “hot” F.3d at (describing the temporary shooting. addition, In at least two shoot- stations). shutdown of gas (those four ings con- attributable to Stonehurst di- trast, shop closed, the tire here was rected at Wendover members Luis Carval- night, Cabral) dead of for a matter of hours. ho and Antonio precipitated were Moreover, proprietor by cell-phone testified that he calls to or between Stone- “suspected” that some business had been hurst identifying members in- where the lost because there was “paperwork” less might was, tended victim be found. There than usual but definitively however, he could not countervailing some evidence. identify any such shortfall. example, For government’s star wit- ness, Augusto Lopes, stated that Stone- also posits that Stone- hurst did necessarily” “[n]ot use cell regular hurst members’ use of cellular phones to discuss acts of violence because telephones as a means coordinating “they can bugged.” their comprised activities requisite nexus to commerce. But again, end, the In eases the we need not resolve whether it cites are of scant assistance. In evidence, either the tire shop cell-phone or them, each of the court tandem, mentioned tele- alone or in suffices to make out phone only use after it had enumerated a requisite the de minimis connection be- series of more binding links to commerce. tween enterprise the and interstate com- ac- member Stonehurst The fact a below, there is sur- explain weAs meree. a purchase lines to tually crossed state that the finding a for in this case footing er the carrying out enter- use in “affecting weapon com- for the satisfied government weight great to is entitled activities prise’s offense. the element of merce” calculus; crossing state decisional in the that Stone- reflects record in a commer- engaging of purpose lines for fewer an arsenal —no maintained hurst example paradigmatic a cial transaction is by used Sto- firearms different than nine compass falls within activity of out Stone- carrying in members nehurst power.7 of the commerce Cf. evidence and other This hurst business. (9th Clark, 435 F.3d States that Sto- to conclude the district led Cir.2006) in travel (noting “requiring purchaser “massive awas nehurst commerce, engage- coupled foreign (a Smith & exception one guns.” With while transaction in a commercial ment Massachusetts), made revolver Wesson a abroad, foreign to implicates commerce Stonehurst acquired by firearms all the This adequate degree”). constitutionally outside of Massa had manufactured been the evidence con- coupled with purchase, thus, in interstate and, had moved chusetts arsenal of firearms cerning the amassed commerce. state, to satis- suffices out manufactured force of try to blunt appellants It nexus. interstate commerce fy RICO’s to by citation United this evidence shop tire evidence that the follows (5th Cir.2000), Kallestad, are, cir- use cell-phone “[i]t stated Circuit the Fifth in which case, on merely frosting of this cumstances posses- prohibit to thing Congress for one cake. moved has itself weapon a sion of commerce, quite it anoth- but interstate c. prohibit homi- thing Congress er the RICO element The final Id. weapons.” such using cides to show requires equation guns, out-of-state wielding of

Were the in the con participated defendant that a which the only hook on simpliciter, a “through pattern duct of could be commerce” element “affecting activity.” U.S.C. racketeering give might caveat Fifth Circuit’s hung, the 1962(c). a minimum requires pattern A § however, Here, “gun” evi- pause. us id. See racketeering acts. two measurably by testi- strengthened dence is 1961(5). “through” implies word currency of the that, during mony acts and racketeering these nexus between Lattimore traveled conspiracy, exists when That nexus enterprise. pur- Hampshire, New Massachusetts predicate to commit is able defendant back to firearm, brought it chased by means either racketeering acts part weapon became That Massachusetts. the enter involvement with of his result later fired and was arsenal of Stonehurst’s Marino, at 27. prise. car in which at a member by a Stonehurst instance, jury found that In this thought were Wendover members racketeer- two committed had Nascimento riding. court took gang, Garcia tion of a street to effectuate state in order to another 7. Travel any allegation absence of pains to note the distinguishes this case from gun purchase [gang] traveled out the members Garcia, "that case relied a district court weapons.” purchase state evidence of finding appellants. insufficient F.Supp.2d at 807. RICO convic- activity to sustain a economic (i) ing (ii) shooting acts: DoCanto and with the of hitting intention the man in the conspiring to kill car, Wendover members. whom he mistakenly believed to be argues He before us that the evidence brother, did DoCanto’s Joaquim “Big Rocky” support finding not that a relationship In light Martins. of this testimony, Nasci- existed between the DoCanto shooting mento’s claim of error boils down to a and his membership Stonehurst. If plaint that the evidence was too thin to argument prevails, this it would thwart warrant a that finding Nascimento under- government’s prove pattern effort stood his intended target Big Rocky — —to racketeering activity, and Naseimento’s be affiliated with Wendover. conviction would topple. plaint This heavily rests on Lopes’s fur- Nascimento argu- marshals similar ther testimony that “Big Rocky ... wasn’t ment concerning his VICAR conviction for associated with nobody.” added, Lopes assault aid of racketeering. VICAR however, Rocky that Big “was actually in- forbids, alia, inter committing assault with volved in problems.” The jury, of dangerous weapon “for the purpose of course, was entitled to discount the former gaining entrance to maintaining or in- See, statement and to credit the latter. creasing position in” a racketeering enter- Alicea, e.g., United States v. 1959(a)(3). Thus, prise. Id. if the evi- (1st Cir.2000) (acknowledging jury’s inadequate dence was support a finding “prerogative to parts credit some of a wit- that he shot DoCanto to posi- maintain his testimony ness’s disregard po- other Stonehurst, tion in then the VICAR con- tentially contradictory portions”). viction cannot stand. Endeavoring parry thrust, Nasci- In approaching arguments, these argues mento the allusion to “the fact one sticks out like a sore thumb. De problems” might a reference to the fact spite perfervid rhetoric in which the Big Rocky was a witness to the arguments couched, are Nascimento does Mendes murder committed Nardo challenge the sufficiency govern Lopes, not a reference to involvement proof ment’s actually that he shot DoCan- with Wendover. That interpretation is task, therefore, to. Our is to undertake de propped up by Rodrigues’s testimony that novo review in order to ascertain whether, he Big Rocky understood to be one of the taking all reasonable gov inferences in the against witnesses Nardo Lopes. But the favor, ernment’s jurors rational could find government counters, with considerable beyond a reasonable doubt the neces force, that at a place different in his testi- sary relationship existed between Nasei- mony Augusto Lopes unequivocally named mento’s shooting of DoCanto and his mem Big Rocky as a Wendover collaborator. bership in Connolly, Stonehurst. See also notes that jury F.3d at 22. heard testimony from an admitted Wend- The record reflects that night on the member, DaRosa, over Adiello Big 29, 1998, November DoCanto was standing Rocky was associated with Wendover. near her car. boyfriend, Her Anildo Ro-

cha, was inside the vehicle. Sifting Nascimento through conflicting testi fire, opened hitting DoCanto in the left leg. mony determining where the truth lies Although there is no evidence that either is the sort of squarely work falls DoCanto or Rocha were Wendover mem- jury’s within the province. So it is here: bers, Augusto Lopes testified that Nasci- question fact, is one of and the answer mento stated that he had fired the shots depends on what jurors evidence the deign

47 predi- a relationship between tighter even has seen which jury, aWhen to credit. enterprise an racketeering act and witnesses, chooses and cate picks the and heard purpose “for the accounts, act must be appellate an the conflicting because among or maintaining honor to or always entrance gaining almost of court should 471 18 enterprise.” v. in an increasing position States United choice. See Gobbi Cir.2006) 1959(a). (1st (explaining fore- argument This 311 U.S.C. F.3d of the “ultimately province provision the the VICAR by precedent: it is closed any con- of significance the act can criminal jury long assess as the satisfied as evidence”). the the defen- expected tradictions of been said to have be membership in the of his by reason dant the aspect of effectively ends That Tse, F.3d v. 135 States enterprise. United which had decided jury the matter. Once Cir.1998). of the (1st totality 200, should Rocky’s status Big account of shoot- to Nascimento’s regard evidence that deci- of credited, legal implications test. passes that ing of DoCanto reject Consequently, we clear. were sion error.8 claim of Nascimento’s point would be on this say more To alternative in the argues Nascimento conclude, on whole-rec- We superogatory. in the testi- that, the contradictions given was suffi- review, evidence ord rationally have jury could mony, an inference both cient to sustain a beyond reasonable guilty him found anof part fired at DoCanto Nascimento Morillo, v. States cites United He doubt. the rival a of to eliminate member effort Cir.1998), for the 158 F.3d that this and an inference gang Wendover the evi- that when proposition familiar of him reason expected of conduct was favorable most light dence, viewed Thus, membership Stonehurst. his theory both supports prosecution, to the both relationship, for adequate an there is theory of likely equally an and guilt between purposes, and RICO VICAR jurors perforce innocence, must reasonable and the enter- racketeering act challenged case, In this doubt. a reasonable entertain prise. compul- however, jury under no contrasting theories to deem sion III. likely. equally innocence guilt and clear credited could have jury plausibly both Talbert jury convicted DaRosa, unambiguous statement and charges: trio Nascimento presum- stalwart himself Wendover offense, conspira RICO RICO substantive about of information source ably a reliable mur commit conspiracy cy, and VICAR Rocky Big composition, gang’s racketeering case, one In each der. for that and was member awas Wendover RICO the substantive undergirding acts problems.” “part reason murder. commit conspiracy to charge was say that appellants now These two argu- a further advances Nascimento the substantive interplay an between requires VICAR effect that ment (2d Polanco, 539-40 v. laundry cases in list of offers a 8. Nascimento Thai, Cir.1998); v. United States un- convictions have overturned which courts Cir.1994). exception, these (2d Without prosecu- on the and VICAR based der RICO degree of explore the either which cases-all of requisite nexus to establish tion’s failure a racketeer- permissible between enterprise. attenuation predicate act and the between See, highlight the Bruno, ing act and F.3d e.g., United States supporting Fergu- Cir.2004); utter absence (2d United States 85-86 inapposite. two-are Cir.2001); (2d relationship between son, F.3d charge and conspiracy charges the (ii) offend- racketeering number of acts and ed the Jeopardy Double here, Clause. For the Marino, unlike in purpose of the follow, reject reasons that we their impor- members) (killing Wendover tunings. object identical to the charged of the conspiracy. Neither of those distinctions One branch of Jeopar the Double dispositive makes a difference. dy Clause forbids the from punishing person twice for the same The Blockburger “depends test Const., offense. See U.S. amend. V. De on the elements of the crimes and not the spite proscription, the same conduct similarity of underlying facts.” United sometimes can punished under more LeMoure, (1st States v. 37, 474 F.3d 43 See, than one e.g., statute. United States Cir.2007). Thus, in resolving a double Morris, (1st 99 F.3d 477-78 Cir. jeopardy challenge such as that advanced 1996). multiple punishments Such are here, a bog court should not itself down in permissible if the underlying offenses are minutiae underlying another, is, distinct one if each charges but, rather, should it confine “requires proof offense of a fact that the self to statutory elements of two other does not.” Blockburger v. United offenses. Because a conspiracy “RICO States, 299, 304, 284 U.S. 52 S.Ct. 76 and a RICO violation do not necessarily (1932). L.Ed. 306 require the participation peo of the same Here, Talbert and argue Nascimento Marino, ple,” 277 F.3d at (emphasis conspiracy because to commit murder original), it point whether, is beside the predicate served as a act for their substan- in a particular instance, the racketeering convictions, tive RICO charge VICAR acts many, are few or whether they conspired to commit murder conspirators RICO and the partici RICO lacked element distinct from the sub- pants are identical. By token, the same charge. Second, stantive RICO and relat- the fact the purpose of the enterprise each of them edly, argues that his convic- object and the conspiracy happen for conspiracy tion to violate RICO was a coincide no moment. See United included lesser offense within his substan- Sessa, (2d Cir. and, thus, RICO tive conviction barred 1997). the Blockburger under test. See Brown v. Ohio, 161, 168, 432 U.S. appellants’ position fallback (1977) L.Ed.2d 187 (discussing the rela- Rule, rests on Wharton’s which carves out tionship between lesser included offenses exception modest general to the principle and double jeopardy). that there is no bar to conviction for both arguments These are persuasive. conspiracy criminal and a substantive Marino, 277 F.3d at we held “that a criminal offense committed within the substantive RICO violation RICO course of conspiracy. See United conspiracy are not the offense same Previte, States v. 76-77 jeopardy purposes.” double In the same Cir.1981) rule). (explicating the Wharton’s opinion, rejected the notion that a VIC- Rule is limited to adultery ais instances — AR violation is a lesser included offense of prime example which, as a statutory —in a substantive RICO violation. See id. matter, the completed necessarily offense appellants’ attempts distinguish conspiracy involves between the partici Marino are unavailing. They pants. focus on two States, Iannelli v. See (i) that facts: Marino greater 770, 785, involved a 43 L.Ed.2d illegal search. fruit of as the frame Rule rejected Wharton’s We Const., IV. The district case, amend. see U.S. in an earlier challenge appeals motion. Nascimento denied because Marino, 277 F.3d level, ruling. see from this statutory at the operates rule 1284,we 780, 95 S.Ct. Iannelli intro- regard be difficult It would fact-bound appellants’ reject likewise it as frame harmless: gun of the duction to the amounts what to resurrect attempt ballistics by a was matched argument. same found at one casings to shell expert a close. The chapter to brings That that Nas- The fact shootings. Stonehurst not do appeals these it is of short gun frame of possession had cimento Clause. Jeopardy the Double implicate Lopes, Augusto to corroborate also served had disas- that Nascimento who testified IV. shooting, hand- following a gun a sembled disposal, and Lopes for to ed the barrel requires us journey our leg The last of this the force frame. kept the Given that the assertion consider Nascimento’s to Nas- evidence, to think it best address refusing suppress to erred court district on its merits. claim cimento’s during an his room from seized arrest. outset, useful it seems At the Nascimento as follows. The facts are searches incident between distinguish arising charges criminal facing state was ef sweeps. Officers protective arrest He failed shooting. of the DoCanto out a to make entitled an arrest are fecting magistrate required and state report v. arrest. Chimel to that incident search 7, On December warrant. a default issued 763, California, 395 the arrest police —armed (1969). scope 2034, 23 L.Ed.2d 685 warrant —arrived no search but warrant arrest restricted incident to a search Following consen- home. Nascimento’s control the immediate area within to the (who entry, they informed Nascimento sual within is, area from arrestee, “the underwear) that he in his only clad was weap of a possession might gain he which Nascimento Because to be arrested. was evidence.” Id. destructible did not the officers compliant, seemed him. handcuff conceptual sweeps are Protective Nascimento escorted officers Two to arrest. incident from searches ly distinct so that to his the house bedroom through potential by the justified They are there, dressed. Once get could he rather, but, arrestee posed threat the bed for quick sweep did a officers by unseen posed potential threat by the on it. One Nascimento weapons sat lurking on may be who parties third clothes closet to the proceeded the officers Buie, 494 U.S. Maryland See premises. the bed. to ten feet eight located 108 L.Ed.2d sweep of a brief performed The officer sweep protective Consequently, on the cabinet closet, an unlocked noticed inspection “cursory visual to a is limited in, shelf, gun and discovered top reached be hid might person where places those point, At Nascimento frame. 1093; see Unit Id. at ing.” handcuffed. Martins, 149-51 F.3d ed States Cir.2005) sweep (discussing protective case, in this indictment Following his doctrine). suppress gun moved Nascimento case,

In this the district court cited both exigency tute an justifying the officers in Chimel and analysis Buie. We confine our entering another room in order to obtain narrowly: more because cabinet clothing. needed States v. searched was too small to accommodate a (4th Gwinn, Cir.2000). person, we concentrate on whether the Generalizations are hazardous because passes search muster under Chimel. imagine one infinitely can variable fact patterns. It say suffices to that both hu- There is disarray some case law dignity man and the England New cli- as to standard of pertains review that to a mate counseled here in favor of a more permissible determination of the scope aof complete addition, wardrobe. the dis- search incident to arrest. Some courts trict supportably found that the po- have clearly used a erroneous standard. lice neither manipulated See, the situation nor e.g., Morales, United States v. 923 used Naseimento’s (8th pretext dishabille as a F.2d Cir.1991); 626-27 United carry to out an impermissible Bennett, otherwise States v. 908 F.2d 193-94 search. (7th Cir.1990). Accordingly, the conduct of the Others have undertaken police in deciding to See, suspect dress the de novo e.g., review. United States v. falls Abdul-Saboor, within the (D.C.Cir. latitude reasonable afford- 85 F.3d 667 1996); arresting ed officers in Johnson, coping with exi- United States v. 18 F.3d (5th gent Cir.1994) circumstances. See United States (opinion on rehear- Cook, (1st Cir.2002) (ex- ing). In 277 F.3d judgment, our a bifurcated stan- plaining that dard of “common appropriate. prac- review is See United sense and tical Espinoza, States v. considerations must guide judgments F.3d 45-46 Cir.2007) about (discussing general the reasonableness of approach to searches and seizures”). appellate review of district rulings court on suppression motions); United States v. of. This brings us to the search itself. The Coker, (1st Cir.2005) (dis- at the suppression hearing indi- cussing the bifurcated standard of review that, cated as a matter policy, Boston applicable suppression to in the rulings police officers similar situations allowed context of the Sixth right Amendment to to arrestees select the they clothes that counsel). Under that approach, we review arrestee, wished to wear. The however, the district court’s factual findings for typically would given not be direct access clear error but review de novo its ultimate Thus, to the closet. the question reduces constitutional conclusion. eight whether cabinet tó ten away feet Before moving to the heart of Nascimen- from an unrestrained suspect can be said argument, to’s pause we aside a brush to be within the suspect’s immediate con- potential complication. police origi- trol. Emphasizing that there were two nally encountered Nascimento in the front between him closet, officers and the Nasci- apartment. time, At that the cabi- mento argues that we should answer this net unquestionably was beyond his imme- question in negative. To buttress his diate control. circumstances, Under the argument, he calls our attention however, it not inappropriate was for the Johnson, (5th States v. 16 F.3d 69 Cir. police to escort Nascimento to his bedroom 1994), on rehearing, modified in order that might he get dressed. in which the Fifth Circuit found that a police

When encounter and ar eight away briefcase some feet from an partially rest a clothed individual his unrestrained suspect was not under his home, the need to dress him may consti- immediate control. See id. 70-72. V. four stressed holding, the so Id. at room. in the present were officers Concluding, no further. go needWe lack arguments do, appellants’ we addWe force, affirm their convictions. of little estimation, Johnson In our near may venture while this case only that There, unlike to Nascimento. help encompassed by of conduct edge the outer felt “never hand, officers case statute, activities Stonehurst’s the RICO “believed and never threatened” line. not cross that do destroy evidence.” about Johnson Affirmed. mindset, they en Despite that Id. at general type of “precisely gaged concurring. BOUDIN, Judge, Chief by Chi prohibited ized, search warrantless are issues important Although several Id. mel.” great the one of appeals, raised these concerns continuing importance est a different horse of case is a This requirement, see commerce RICO’s arresting person were officers hue. The 1962(c) (2000), the constitu U.S.C. charged to have been they knew whom based by the defendants challenge tional Law enforce of violence. a crime 549, 514 U.S. Lopez, v. States United on perilous who embark ment officers (1995),and 1624, 131L.Ed.2d 626 S.Ct. 115 need the ignore to expected not duties are Morrison, 598, 529 U.S. v. United here, And precautions. for commonsense (2000)— 1740, L.Ed.2d 658 146 S.Ct. 120 Johnson, the to contradistinction sharp in distinguished having been itself duo closet, to the their search targeted officers Raich, 545 by recently Gonzales more the locus about to become which was 1 2195, 162 L.Ed.2d 1, 125 S.Ct. U.S. a fact found as court The district activity. (2005).10 to readily accessible was the closet “af- enterprise that an RICO reaches clearly was not finding That Nascimento. commerce, 18 U.S.C. interstate feet[s]” erroneous. usually signifying 1962(c), art a term of § set, match. and Given game, is That limit to the regulate to Congress’s intent (and, accessibility, closet finding Circuit powers. Clause its Commerce cabinet) 105, Nascimento’s thus, Adams, within Stores, was 532 U.S. Inc. v. City up Accordingly, 1302, 234 control.9 L.Ed.2d 115, immediate 149 case, ultimate conclusion showed court’s (2001). hold the district In our within had guns scope regular of the search use gang’s Abdul-Saboor, commerce, as 85 as well limits. See interstate permissible moved across state “con gang is a member an area that (holding trip F.3d at 671 one guns weapons. to be with such procure arrestee lines ceivably accessible” directly control). basis, they related peripheral; not On that were in his immediate This activities. centrally gang’s and appropriately denied the district satisfy the Commerce enough to nexus suppress. motion 848, States, 120 U.S. 529 v. United Jones earlier with our result is consistent This (2000), 1904, also 902 L.Ed.2d 146 that, S.Ct. space as such in a small implication duo, but Lopez-Morrison along with the room, cited even handcuffed by 10-foot 10-foot and statutory interpretation case Jones was a covering most of "grab suspect has a area” scope Con- directly engage the Ortiz, did United States the room. power. gress's commerce Cir.1998). 25, 28 52 . acquisition

Clause. That commerce, of such and it repeatedly has been up swells, weaponry rather impedes, than in held. E.g., Cobb, United States v. 144 terstate commerce long ago 319, (4th ceased to mat Cir.1998). F.3d 320-21 And ter, Darby, States v. United 312 U.S. courts regularly uphold wire mail S.Ct. 451, (1941). 61 85 L.Ed. 609 fraud single convictions because a call or mailing, playing incidental role

The commerce link in our case is at least scheme, creates a link to an instrumentali strong arguably stronger than that ty commerce, e.g., interstate Schmuck v. of prior felon acquires, who in some local States, 705, 710-715, United 489 U.S. 109 transaction, gun “street” happened S.Ct. 103 (1989); L.Ed.2d 734 Per to be made in another state. The act of a States, eira v. 1, 8, United 347 U.S. 74 receiving felon or possessing gun such a S.Ct. 98 fact, L.Ed. (or, indeed, bullet) single even a has for the call mailing may itself be many intrastate years been federal criminal of- so the link is the fense, use of facilities that also see 18 U.S.C. 922(g)(1), based on serve customers, interstate e.g., prior movement gun of the in inter- Gil, (2d States v. Cir. state commerce. Scarborough v. United States, 2002). (1977). Here, L.Ed.2d 582 multiple weap- Lopez and Morrison concerned statutes ons and their part use as criminal require did not any jury finding that amply were proved. Given the particular conduct used case

Scarborough, our own case appears a forti- facilities of interstate commerce or affect ori. ed such Lopez, commerce. U.S. 1624; Morrison, Some courts in upholding felon-in- 613, possession 120 statute assert S.Ct. 1740. regulates legality that it The of each “instrumentality” commerce, an statute of in these two namely depended cases on (in gun. E.g., Dorris, imputing (in Lopez) United States v. or upholding 236 Mor rison) (10th Cir.2000). 582, F.3d a generalized 586 Congressional But in truth deter the statute mination that criminalizes posses- class of primarily local conduct — receipt a gun by together sion of activities taken had some felon—and cumula gun’s provenance commerce, tive provides effect on a sufficient even if individual nexus to commerce to effects too permit were small to regu- Lopez, federal count. lation of 514 1624; Morrison, that conduct. U.S. at 115 offending The S.Ct. con- duct here is 529 guns the use of U.S. at to kill S.Ct. 1740. people part as of a criminal enterprise; and the impact cumulative theory had been interstate origins guns permit Con- well in established commerce clause cases gress regulate that conduct. If Con- Filburn, since Wickard v. 317 U.S. gress can regulate the possession mere S.Ct. L.Ed. Lopez a gun because gun at one time traveled Morrison, and the Supreme Court restrict in commerce, interstate surely it can also ed theory to cases of activity. economic regulate enterprise that uses such guns Lopez, 1624; U.S. at to kill. Morrison, 529 U.S. at 120 S.Ct. 1740.

There are other analogous statutes. But restriction, which we must assume The federal car-jacking statute, 18 U.S.C. good law, continues to be has nothing do (2000), § 2119 makes murder lesser with a case where the statute requires and violence into federal simply crimes be- the evidence shows that the defendants cause the vehicle once moved interstate themselves had the requisite effect Supreme existing under jurisdiction eral pos- purchase and by the commerce—here precedent. Court weaponry. session problem. kind of a different yet Raich is a whole is taken cultivation

Marijuana affecting interstate activity

commercial upheld Court

commerce; Supreme but marijuana is even where ban criminal use non-economic for

grown personal Its rationale in-state. consumed America, STATES UNITED kind of this cases could reach Congress Appellee, difficulties because, practical given intrastate, such a ban on distinguishing, McFARLANE, Clive Clive a/k/a was an “essen- production noncommercial McFarland, Defendant, scheme.” regulatory larger part of tial Appellant. 2195. Raich, 545 U.S. 06-1779. No. gov is easier case present repeat, the To was Raich. than

ernment Appeals, Court United States particular that the requires RICO statute First Circuit. commerce affect interstate itself enterprise 8,May 2007. Heard evidence, deter jury, supported and a case did in this that the mined July Decided traveled guns commerce. affect such commerce; too one so did interstate This is gun purchasers. enterprise’s muster. constitutional pass sufficient Scarborough,

Cf. may may or Raich much However Morrison, convic Lopez and affect prece established satisfy case

tions

dent. Clause Commerce use of the

Congress’ plausibly or criminals local crimes

to reach case to interstate individual

linked feder- may good not be may or

commerce well is too legality its but policy

alism by the lower revisited to be

established in a Conceivably, the link

federal courts. faint; slight or may too

particular case next whose someone

every murder from a have come might otherwise

meal its purchasing chain supermarket

large Lopez,

products interstate. But the arsenal faint slight is not case

guns fed- to sustain and is sufficient

connection

Case Details

Case Name: United States v. Nascimento

Court Name: Court of Appeals for the First Circuit

Date Published: Jul 2, 2007

Citation: 491 F.3d 25

Docket Number: 06-1152, 06-1153, 06-1154

Court Abbreviation: 1st Cir.