Lead Opinion
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
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 Dor-chester section of Boston, Massachusetts. In 1995, one of these 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 Wend-over 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 Stone-hurst Street. He soon learned that Stone-hurst 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: 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 Wend-over.”
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 (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 Latti-more 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.
On December 15, 2005, the district court sentenced Nascimento to a 171-month in-carcerative 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,
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
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,
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,
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,
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-a-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 government had established the disputed element of the offense. See United States v. Cruz-Arroyo,
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
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 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 Stone-hurst’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 requisite sense. Stone-hurst 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,
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,
Some challenges to jury instructions are reviewed for abuse of discretion. See, e.g., United States v. Perez,
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,
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.,
The argument proceeds as follows. First, the appellants note that the indictment specified that the named defendants “[fjrom 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 [enterprise, 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] continuefd] in essentially unchanged form during substantially the entire period alleged in the indictment” (emphasis supplied). Next, the appellants remind us that “when a 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,
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,
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 Stone-hurst 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 be supported by testimony concerning that somewhat truncated time span.
The appellants, citing the Second Circuit’s decision in United States v. Morales,
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
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 organization’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.
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 indictment, twenty were alleged to have occurred in that time frame (the lone exception — the general charge that Stone-hurst 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,
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 v. Castaneda,
B.
A second element of a RICO violation is an effect on interstate or foreign corn-
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,
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 Mari-no, 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 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,
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.
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,
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 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,
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,
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,
Although one district court has read Scheidler in this restrictive manner, see United States v. Garcia,
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, has been ingrained in our jurisprudence for over a century. See, e.g., Champion v. Ames (The Lottery Case),
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 noneco-nomic 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 “affeet[ing] ... commerce.”
2.
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,
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,
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 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,
The remaining case in the trilogy is Jones. As previously discussed, see supra Part 11(B)(1), the Jones Court held that the incineration of private residences was beyond the reach of a federal arson statute.
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,
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 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,
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,
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 decre-tory 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,
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,
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 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,
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,
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 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,
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,
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,
3.
We next examine the appellants’ contention that the government failed to adduce evidence sufficient to show even a de min-imis 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,
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
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 eases such as United States v. Vega Molina,
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,
The government also posits that Stone-hurst members’ regular use of cellular telephones as a means of coordinating their activities comprised the requisite nexus to commerce. But again, the eases 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,
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,
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 Stonehurst (those directed at Wendover members Luis Carval-ho and Antonio Cabral) were precipitated by cell-phone calls to or between Stone-hurst 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 Stone-hurst 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 com-
The record reflects that Stone-hurst maintained an arsenal — no fewer than nine different firearms used by Sto-nehurst members in carrying out Stone-hurst business. This and other evidence led the district court to conclude that Sto-nehurst 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,
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.
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,
In this instance, the jury found that Nascimento had committed two racketeer
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 DoCan-to. 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 Nasei-mento’s shooting of DoCanto and his membership in Stonehurst. See Connolly,
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 DoCanto or Rocha were Wendover members, Augusto Lopes testified that Nasci-mento 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, Nasci-mento’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,
Endeavoring to parry this thrust, Nasci-mento 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 Big Rocky as a Wendover collaborator. The government also notes that the jury heard testimony from an admitted Wend-over 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
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.
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,
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,
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
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,
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 relat-edly, 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,
These arguments are not persuasive. In Marino,
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 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,
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,
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 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 Nas-cimento 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 Nas-cimento’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,
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,
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,
Before moving to the heart of Nascimen-to’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,
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 tó 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, Nasci-mento argues that we should answer this question in the negative. To buttress his argument, he calls our attention to United States v. Johnson,
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.
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.
Notes
. 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.
. The trial transcript reveals quite clearly that the able district judge reined in witnesses who attempted to discuss matters outside that time frame.
. Among their gallimaufry of arguments, the appellants suggest that our opinion in United States v. McCormack,
. 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,
. 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,
. 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,
. 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.”
. 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,
. 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,
Concurrence Opinion
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,
RICO reaches an enterprise that “af-feet[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,
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,
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,
There are other analogous statutes. The federal car-jacking statute, 18 U.S.C. § 2119 (2000), makes murder and lesser 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,
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,
The cumulative impact theory had been well established in commerce clause cases since Wickard v. Filburn,
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,
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,
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,
. Jones v. United States,