When does robbery of a local brothel substantially affect interstate commerce? Apparently, pretty much always.

Last year, I posted about the Supreme Court’s review of, and unsurprising decision in, Taylor v. United States.  That case, up from the Fourth Circuit, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied where there is a robbery involving a drug dealer.

This past week, the Fourth Circuit issued another opinion raising a similar question about the application of the “affects commerce” element of the Hobbs Act to an unlawful business operation.  This time, rather than drug dealers, the court in United States v. Lopez considered the 2007 robbery of a Maryland brothel.

As the court described the facts of the case, the Prince George’s County brothel was located in a first-floor apartment, staffed by a Adelaida Garcia-Calderon and a doorman/money collector.  Two young men entered, demanded money, tied the doorman’s feet and hands, and then one of them raped Garcia-Calderon at knife-point.  Another man, Carlos Cordon, walked in on the robbery and was stabbed to death by one of the perpetrators; Cordon’s body was found behind the apartment building.  Garcia-Calderon and the doorman survived, but the case remained unsolved for several years.  Finally, local police were able to match the DNA from the crime scene to Miguel Ramon Cerros-Cruz, an MS-13 member, and Alexsi Lopez.  Police also had the testimony of an MS-13 member who was incarcerated with Lopez and overheard Lopez confess to the brothel robbery and killing, while also implicating Cerros-Cruz.

Lopez was indicted for violating, and conspiring to violate, the Hobbs Act.  (Although he was 17 at the time of the crime, Lopez was 24 at the time of trial, and was subject to trial in federal district court; the five-year statute of limitations was also extended because of the DNA testing, see 18 U.S.C. 3297).  Cerros-Cruz pleaded guilty; Lopez went to trial and was convicted.  The court sentenced Lopez to 20 years in prison.  (Though I remain curious: if there was evidence that the perpetrators committed the robbery, rape, or killing in order to maintain or increase their standing with MS-13, why not charge the case under VICAR, 18 U.S.C. 1959?).

The Fourth Circuit rejected Lopez’s claim on appeal that there was insufficient evidence to show the required effect on commerce.  Citing the familiar line that the Hobbs Act requires only a de minimis effect on commerce, the court noted that a brothel — like drug dealing — is an “inherently economic enterprise.”  Moreover, the court noted, in many cases, including this one, the brothel workers will travel across state lines.  The Government also provided evidence that the brothel used condoms manufactured out-of-state, and that Lopez and Cerros-Cruz targeted the brothel because of its nature as an illegal business that dealt in cash.

Although this case feels much like Taylor, that case expressly limited its holding to situations involving drug dealers as targets and to “drugs or drug proceeds,” because the federal government has jurisdiction over those markets.  “We do not resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted,” the Court said.  After Taylor, it is worth asking whether a small-scale, local brothel engages in the kind of commercial activity over which the United States exercises jurisdiction the way that it does with respect to the controlled substance market.  After all, the Taylor decision was arguably inevitable in light of Gonzales v. Raich, which expressly decided that Congress had the power to regulate the interstate drug marketplace by reaching even wholly intrastate, locally grown marijuana.

The Fourth Circuit did not have a similar precedent on which it could rely with respect to federal jurisdiction over an interstate brothel marketplace.  Still, existing Hobbs Act case law seems to support the Lopez holding. This includes the more general rationale offered in Taylor — citing Raich — with respect to aggregation of economic activity and Congress’s ability to reach intrastate incidents of an activity that is part of a broader class of activity that is within Congress’s reach.  See also Perez v. United States.  Just as drug dealing is a “moneymaking endeavor,” as Taylor described it, so, too, is prostitution.   To reach this activity through the Hobbs Act, though, one must conclude that robbery of a brothel would also effect an interstate brothel marketplace over which the United States exercises jurisdiction.

In addition, multiple lower federal court cases recognize that where the robbery depletes the assets of a commercial establishment, then this is enough to satisfy the jurisdictional element.  But does the Lopez case involve the depletion of assets of a business, or simply of the individual sex worker or brothel manager?  Presumably, of course, someone else  — to whom Garcia-Calderon answers — is getting a cut of the cash.  But is that cash used for purposes connected with the business (such as to buy condoms, or bed linens, or other items associated with pursuing a business that involves sexual activity)?  Also, the fact that the condoms came from out-of-state provides a thin basis for satisfying what should be a more demanding jurisdictional analysis, unless the robbers took condoms, as well.  Nonetheless, federal courts have found the Hobbs Act satisfied on much thinner grounds than exist in Lopez.

Still, it is worth considering the gravamen of Justice Thomas’s Taylor dissent, and the efforts that Justice Alito made to limit the reach of the Taylor holding (perhaps to satisfy some of Justice Thomas’s concerns).  If the Fourth Circuit is correct that the brothel’s character as a commercial establishment, even an unlawful one, is by itself sufficient to satisfy the Hobbs Act (and thus the Commerce Clause), then it would seem that any robbery of any business — no matter how small, or how local, and no matter the volume of its business nor the amount of money that it makes — would be enough to justify the exercise of federal jurisdiction under the statute.  One wonders whether that rule would be consistent not only with the statutory definition of “commerce,” but also with a Constitution that denies a general police power to the federal government.

Perhaps the Fourth Circuit, even if ultimately correct, could have offered a more substantial analysis with respect to the effect on commerce.  It is one thing to acknowledge that the Hobbs Act incorporates all of Congress’s commerce power.  It is quite another to interpret the Hobbs Act in a way that gives Congress more than that.



“Send in the Feds”? Don’t bother, they’re here.

Keeping up with President Trump’s Twitter activity is a full-time job, and I don’t have that kind of time.  So I rarely find it useful to comment on any of his Tweets.  I could not, however, resist responding to one from late last night, in which he makes a statement about the violence plaguing Chicago: “If Chicago doesn’t fix the horrible ‘carnage’ going on . . . I will send in the Feds!”

What does that even mean?

Chicago – a great American city by any definition – is home to a busy United States Attorneys Office, and field offices for the FBI, DEA, and ATF, among others.  Federal prosecutors and other law enforcement personnel in Chicagoland – among the brightest and most talented in the Nation – routinely work on violent criminal cases within federal jurisdiction.  Even a cursory look at the press releases for these federal offices shows that they have been busy using federal resources to fight Chicago’s dire crime problem (which seems connected in substantial part to a drug trafficking and gang problem).  See, e.g., here, and here, and here, and here, and here, and here.

In other words, what kind of federal role in Chicago does President Trump envision that does not already exist there?

One possibility is that he is not talking about policing and prosecution at all, but rather is talking about using National Guard troops.  That would raise serious legal issues, if the troops are called upon to engage in civilian law enforcement.  The image of uniformed military and even of military weaponry constantly patrolling Chicago’s streets is not an image of America becoming great again.  Another possibility is that he is talking about sending more federal money or other resources to Chicago to help combat the problem.  That would be welcome news to city and state officials in Chicago, I imagine (see a Chicago Tribune piece here).  But that is not typically what one would think of when hearing “send in the Feds,” a phrase that suggests a substantial physical presence by federal officials.  Perhaps even more agents and AUSAs could be placed there; perhaps federal drug and gang task forces there could be enhanced and better funded.  I would favor that move.  But let’s be clear: that’s not sending in the feds – that’s sending in more Feds.

Finally, while there is certainly a robust federal law enforcement role where the violent criminal activity involves guns, gangs, and/or drugs, does the President believe that the federal government should supplant the role of city and state officials in ordinary law enforcement involving street crime merely because the city and state are failing to curb the crime rate?  It is true that federal criminal law offers an expansive role for the Feds in this regard, but a more expensive role for the federal government is not something that conservatives and Republicans have typically defended, preferring instead that most criminal law enforcement be done at the state and local levels.  I can’t imagine intellectually honest conservatives going along with the idea of a wholesale federalization of criminal law enforcement in a major American city.

So if the President simply means ensuring a federal role in cooperation with the city and state role, then I must ask again: how is that different from the existing situation?

The President’s Tweet therefore raise two distinct questions.  First, is he even aware of, or does he understand, the rather extensive law enforcement role of the federal government in Chicago already?  And second, how does he envision the federal role there – or in other cities – in the scheme of constitutional federalism?

Unlike others who have been critical of the President’s focus on crime, I applaud the President for tackling this issue at a time when “criminal justice reform” rhetoric has often obscured a discussion of the need for aggressive approaches to criminal violence (including gun violence and drug trafficking, two things that often go together and that are plaguing Chicago).  And there is no question that the federal criminal law provides legal mechanisms for an aggressive federal approach to the kinds of violent crime that Chicago has been experiencing.  But those mechanisms are already at work in Chicago.  Maybe they should be even more robust.  But perhaps the President could be clearer about his federal prosecutorial priorities and his understanding of the Constitution’s limits on enforcing them.

Fixing VICAR for murders in aid of racketeering committed by juveniles

This week, the United States Court of Appeals for the Fourth Circuit decided United States v. Under Seal, which provides ample reason to continue questioning the Supreme Court’s egregious errors in Roper v. Simmons and Miller v. Alabama.  The Under Seal opinion is here.

The defendant is a juvenile who was, according to the court, “a few months shy of his eighteenth birthday.”  Truth is, he was 17 years and 8 months.  According to the Government, he was also a member of MS-13, and was accused of directly helping others in MS-13 to kill a fellow gang member who had been suspected of snitching.  The Government also explained that the victim had actually been lured to a Falls Church, Virginia park on the pretext of submitting to a calenton, which involves beating a member while others count to 13.  This was, according to the Government’s description of the crime, an especially brutal killing involving a knife and a machete.  The defendant allegedly helped the others in holding down the victim, stabbing the victim in the stomach, and slashing the victim’s jaw and neck using the machete.  The gang then buried the victim’s body in the park.  Fearing that the body would be found, the defendant then helped others in the gang dig up and rebury the body.

The Government sought to prosecute the defendant as an adult for murder in aid of racketeering (MS-13, of course, being the relevant racketeering enterprise).  Under the murder provision of the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 U.S.C. 1959, however, the only available punishment for the defendant would be death or life imprisonment.  The defendant argued that it would be unconstitutional to transfer him from the juvenile system to the adult system because either of the two available punishments – death or mandatory life – would violate the Eighth Amendment when applied to a juvenile.  Of course, the defendant is correct.  Roper held that the death penalty cannot be imposed upon a person who commits a capital crime before age 18, and Miller held that juvenile homicide defendants cannot be sentenced to a mandatory term of life without parole for crimes committed before 18.  The district court and the Fourth Circuit agreed that the transfer would be unconstitutional.

The Government tried to argue severability, but the Fourth Circuit rejected those arguments.

The logical conclusion of Under Seal is that – because of Roper and Miller – no juvenile defendant can ever be prosecuted in federal court for murder in aid of racketeering.  Given the number of juveniles involved in major gang crimes, including criminal homicides, this is not a desirable status quo for the federal criminal law.  Punishment as a juvenile delinquent for such crimes – just think about the alleged murder in this case, as an example – does not serve the ends of justice nor would it generally serve the purposes of the criminal law.  And while it is true that there are other crimes, which allow for punishments of less than mandatory life, that the Government could seek against juveniles, VICAR is an important statute in fighting very serious crimes, including murders, committed by gangs and organized crime.  Unlike RICO, VICAR allows for the death penalty (for an adult offender, of course).  Also unlike RICO, VICAR does not require the Government to prove a pattern of racketeering activity, which makes it a desirable statute for isolated violent crimes.  It would therefore be unfortunate if the Government was permanently forbidden from using VICAR to target gang-related murders committed by juveniles.

Accordingly, and consistent with the Fourth Circuit’s implied invitation in Under Seal, Congress should amend VICAR to state that, in the case of a juvenile defendant convicted of murder in aid of racketeering after an appropriate transfer proceeding, the punishment shall be for any term of years.  Congress could even add a mandatory minimum (say, ten years), as long as it avoids mandatory life.

Absent this fix, the result is a juvenile delinquency adjudication for allegedly slicing up a guy with a knife and machete and burying him in a park.

Rethinking SRCA

I posted last year on the Sentencing Reform and Corrections Act, now pending in the Senate.  I have expressed some reservations about the bill, some of which are now the subject of a move to amend the bill to address the concerns that I and other much more prominent critics of the bill have noted.  Politico’s reporting is here.  I don’t typically post on a subject when I think it has been adequately covered by others already, but I made an exception here because I thought this subject was worth mentioning in a fresh post, and because I thought it was also worth directing readers to other useful commentary on the matter.  Doug Berman at SL&P has a new post up, as does Bill Otis at C&C here.   Notably, they both focus on Arkansas Senator Tom Cotton’s recent floor speech concerning SRCA.  Senator Cotton’s remarks are here.  They are worth a read.

In addition to agreeing with some of the concerns expressed by Senator Cotton and others, I continue to believe that reducing sentences for major drug trafficking crimes and violent crimes, especially those involving firearms, would be a grave mistake.  I acknowledge that with drug crime especially, it is tricky.  Fine distinctions are in order, and a better approach might be to rewrite the substantive drug offense law rather than tinker with sentencing.  But this is a time when we should be strengthening, not softening, gun crime sentences and sentences for offenses that will help us fight dangerous criminal organizations (which tend to traffic in drugs and guns).  Of course, I hope that we can enact some sensible legislation to deter or prevent much of the day-to-day gun crime that we experience in this country, a substantial amount of which is connected to criminal organizations.  But where we cannot do so (and we cannot prevent it all), we should be prepared to aggressively prosecute and punish it.

I also continue to believe that the push to curb “mass incarceration” cannot be sustained if its focus is solely upon “low-level” drug offenders.  And for those who are simultaneously pushing the mass incarceration/sentencing reform narrative as well as the narrative about strengthening gun laws, those narratives may well be on a collision course – unless we are prepared to properly make, and commit ourselves to, some critical distinctions among offenses.

Unfortunately, sentencing reform – rhetorically, at least – has become a one-way ratchet.  I say again what I have said before: reducing some sentences, or eliminating some mandatories, is probably appropriate; but sentencing reform does not have to be exclusively about reducing sentences.  For some offenses, reform can move in the other direction, too.


2nd Circuit: No new trial for Bobby Glasses

Bartolomeo “Bobby Glasses” Vernace, once a high-ranking capo in the Gambino Crime Family, was convicted and sentenced to life in prison without parole for engaging in a RICO conspiracy that included the infamous Shamrock Murders.  Yesterday, the United States Court of Appeals for the Second Circuit upheld his conviction and sentence.  Here’s the opinion in United States v. Vernace.

In April 1981, Vernace and two other Gambino associates (not-yet made guys) shot and killed John D’Agnese and Richard Godkin, the owners of the Shamrock Bar in Queens.  Frank Riccardi was a Gambino associate, in Anthony “Fat Andy” Ruggiano’s crew.  Someone spilled a drink on the dress of Riccardi’s girlfriend.  After a confrontation in which D’Agnese and Godkin tried to calm him, Riccardi went to a local social club (which was really a gambling operation run by Joseph “JoJo” Corozzo) and enlisted the help of Vernace and Ronald Barlin.  The three men returned to the Shamrock Bar, where they confronted, shot, and killed D’Agnese and Godkin.  Ruggiano became an informant for the Government and testified that Riccardi had confessed to committing the double murder with Vernace and Barlin.

Vernace went into hiding and evaded conviction for 30 years (including being acquitted on state murder charges in 2002 – eyewitnesses refused to name Vernace as a perpretrator, fearing retribution).  In 2011, he was finally arrested at a cafe that he owned, which also contained video gambling machines.  He was tried and convicted in 2013 on charges of RICO conspiracy; using and possessing a firearm in relation to a violent crime; and operating an illegal gambling business.

RICO requires proof of a pattern of racketeering activity, meaning the commission of at least two racketeering acts committed within 10 years of one another.  The pattern also requires a relationship between the relevant acts.  In the Second Circuit’s case law, this means horizontal relatedness (the acts relate to each other) and vertical relatedness (the acts relate to the racketeering enterprise, here, the Gambino Crime Family).

Vernace argued that the Government could not prove relatedness, saying that the Shamrock Murders were simply a personal dispute over the spilled drink but not connected to the activities of the Gambino Crime Family.  The Court rejected this, saying a reasonable jury could have believed that the Shamrock Murders were committed out of a desire to preserve the Gambino Family’s, and Vernace’s, reputation for using violence to command respect and territorial control.  Vernace says it is relevant that he, Riccardi, and Barlin were merely associates but not soldiers; that the enterprise did not sanction the murders.  But that cuts the other way, too.  Even though Vernace was not yet a formally inducted member of the enterprise, the jury could reasonably conclude that he committed the murder for the purpose of ensuring his entrance into, or rise in the ranks of, the Gambino Family.  That, in fact, is ultimately what happened.

The court also rejected Vernace’s argument that his heroin distribution (another of the alleged racketeering acts) was unrelated to the criminal enterprise.  Vernace said that the Gambino Family did not sanction, and had rules against, drug trafficking.  So, he argued, his own drug dealing was personal and not part of the racketeering pattern.  The court disagreed, saying that the mere fact that the enterprise had rules against it did not mean that the enterprise did not still engage in the activity.  In fact, the court said, the evidence showed that other members of the enterprise engaged in drug trafficking to earn money, or did not enforce a rule against it.  This included both high-ranking and low-ranking members.

Vernace’s two other legal claims also failed.  But in light of the Second Circuit’s previous decision in United States v. Bruno, 383 F.3d 65 (2nd Cir. 2004), Vernace raises an interesting question: when is an act merely a personal beef, and when is it connected to a racketeering enterprise?  The court was able to distinguish Bruno from Vernace, but the line sometimes seems thin, especially after Bruno.  A question for the Supreme Court, maybe?

Interesting trivia.  One of the victims, D’Agnese, was dating Linda Gotti.  Her father was Peter Gotti, and her uncle was John Gotti, each of whom would later become the head of the Gambino Crime Family.  Linda was one of the eyewitnesses who recanted during the state trial but later agreed to testify in the federal trial.

Other interesting trivia.  The United States Attorney whose office prosecuted Vernace?  Loretta Lynch.