Federal crimes in Charlottesville

The horrific events in Charlottesville yesterday have prompted a number of important questions associated with the political and moral necessity of condemning the evils of white supremacy and political violence: why did the President fail — once more — to specifically condemn white supremacy and explicitly disavow fascist and racist supporters? Will Republicans condemn the President’s anemic and equivocal response? Should we call this domestic terrorism, and why would that matter? Those are worthy questions.

Now that one person is in custody related to the car crash that killed a 32-year-old woman, however, it is also important to begin looking at the criminal law questions, as well as the political ones. The Justice Department — after an appropriate statement of condemnation from Attorney General Sessions — announced that it has opened a civil rights investigation. It is early, and we need to await more evidence before arriving at any conclusions about charges or guilt. Still, what might the Feds be looking for?

Most likely, investigators will focus on whether there was a conspiracy to violate civil rights of anyone, including the counter-protesters, pursuant to 18 U.S.C. 241. Investigators will also likely focus on 18 U.S.C. 245, which targets actions against those engaged in certain specific federally-protected activities; whether anyone was intentionally obstructed in the free exercise of their religion, pursuant to 18 U.S.C. 247; and whether this was a violent hate crime, pursuant to 18 U.S.C. 249. These latter three charges, in particular, would require evidence that the person had acted with some specifically proscribed animus, such as racial or religious animus. With respect to the car incident specifically, because death resulted from the actions of the driver, capital punishment is available under sections 241, 245, and 247, but not section 249, if those statutes applied.

But the Feds may not need to rely solely upon civil rights enforcement statutes here.  For example, 18 U.S.C. 33 makes it a crime for any person, acting “with intent to endanger the safety of any person on board” or “with reckless disregard for the safety of human life,” to damage, disable or destroy any motor vehicle “used, operated, or employed in interstate or foreign commerce.”  Section 33 also makes it a crime to, “with like intent,” disable or incapacitate “any driver or person employed in connection with the operation or maintenance of the motor vehicle, or in any way lessen[] the ability of such person to perform his duties as such.”  The video and photographic evidence from the scene in Charlottesville strongly suggests that Section 33 is a potential avenue for prosecution, though this would also depend upon other factors, such as evidence to prove the jurisdictional element (though that should ordinarily not prove to be difficult).

Section 33 does not specifically employ capital punishment, but it need not.  Section 33 is a part of Chapter 2. This is important because Section 34 provides that the death penalty applies to anyone convicted of a crime listed in Chapter 2, where the crime has resulted in a person’s death.

Another important question that remains is whether the driver is a member of, or acted on behalf of or at the direction of or in an effort to become a member of or increase status in, some specific entity, organization or association-in-fact. If so, this could potentially implicate the racketeering laws, notably the violent crimes in aid of racketeering (VICAR) statute, 18 U.S.C. 1959.  Unlike the RICO statute (sections 1961 and 1962), VICAR provides for capital punishment.  Of course, in addition to proving the underlying conduct, the Government would need to prove that the entity met the statutory definition of a racketeering “enterprise.”

Finally, it is worth noting that any mention of capital punishment is subject to both the procedural prerequisites of 18 U.S.C. sections 3591 and 3592, as well as the DOJ’s death penalty protocol.

Virginia has proven itself more than capable of handling high-profile homicide cases.  But in recent years, we have also seen the Justice Department take the position that federal action is required when civil rights enforcement is at stake.  It will therefore be important to find out whether investigators can uncover evidence of animus, or other evidence, that would be sufficient to implicate the federal civil rights statutes in Title 18.  But even without the civil rights statutes in play, federal prosecutors still may have an avenue for federal action, depending upon what the investigation reveals.  The question would then be, as it often is, whether the Feds would be content to let Virginia handle the case alone, whether Virginia would defer to the Feds, or whether there would be dual prosecutions, in which case the Feds would have to assert a unique federal interest that would not be vindicated by the state prosecution.  If the civil rights statutes are implicated, and if prior similar cases are any guide, the chances of a federal prosecution are very high.


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.


Supreme Court decides Taylor: knowingly robbing a drug dealer of drugs or proceeds satisfies Hobbs Act

After a long week of business travel, I’m ready to begin posting again and wanted to begin with some observations on the (in my view) egregious treatment given to Dustin Johnson yesterday at Oakmont by the United States Golf Association.  Fortunately, DJ played sterling golf down the stretch, mooted the consequences of the USGA’s concerns, and (implicitly, of course) gave the USGA a big ol’ middle finger with a dramatic birdie at 18 to widen his margin of victory in the U.S. Open.  But I have been thinking about doing some posts on what the rules of sports can learn from rules of law, and the Johnson-ball-moving controversy supplies an excellent subject for such a post (as would the almost equally egregious treatment DJ received from the PGA of America at Whistling Straits back in 2010, robbing him of his place in the playoff for the PGA Championship – I’m sure I want to revisit that, too).

But that commentary will have to wait.  More immediately, it was a big day at the Supreme Court for federal criminal justice.  Nothing shocking, but three cases announced today each have some significance for prosecutors and defense lawyers.

The Court decided Taylor v. United States.  I posted on Taylor earlier in the year (here).  Predictably, the Court, per Justice Alito, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied merely by showing that the defendant knowingly robbed a drug dealer of drugs or drug proceeds.  The opinion was short, and found that any questions about the scope of the jurisdictional element were governed by Gonzales v. Raich.  Because Congress has the authority to regulate the intrastate possession, manufacture, or distribution of controlled substances, it follows that Congress can criminalize the intrastate theft of controlled substances.

Three items from Taylor are noteworthy.  First, Justice Alito’s opinion accepted, for purposes of this litigation, the holding from Stirone v. United States that the Hobbs Act employs the full scope of congressional commerce power.  Justice Alito does not defend this proposition with any additional language, but simply says the “expansive language of the Act” cannot be interpreted otherwise.  But that is exactly the problem: the expansive language of the Act.  Had Taylor placed before the Court the question of whether the wording of the jurisdictional element was consistent with the Court’s Commerce Clause cases since 1995 (Lopez), and not 1960 (Stirone), I think Justice Alito would have had to defend the scope of the Hobbs Act more decisively.  My view is that these drug robbery cases are the somewhat easy cases, because of Raich; far more difficult applications of the jurisdictional element involve other kinds of robberies, ones that do not involve subject matter already covered by a Court decision on the scope of the Commerce Clause (e.g., robbery of, say, a local convenience store, or a home-invasion robbery of a person who also owns a small business).  Justice Alito seems to acknowledge this by limiting the holding to drug dealer robberies, and perhaps that very sentence will encourage challenges to the scope of the jurisdictional element in other robbery cases that do not involve drug dealers.

Second, Justice Alito acknowledges Justice Thomas’s lone dissent.  Justice Thomas was largely echoing concerns he has raised for twenty years about the Court’s Commerce Clause jurisprudence, and because he could not muster majorities in the previous Commerce Clause cases in which he wrote separately to express his views on Commerce Clause originalism, it is unsurprising that he is speaking for himself here, as well.  But Justice Alito then says “we have not been asked to reconsider Raich.  So our decision in Raich controls the outcome here.”  Fair enough.  But what if the Court had been asked to reconsider Raich?  I’m not sure this matters much, as I think Justice Alito (and the Chief Justice) would be highly unlikely to undo Raich.  Even if that question were before the Court, Justice Thomas would likely be writing for himself (after all, he is the only Raich dissenter who is still on the Court).

Finally, the majority opinion says the Hobbs Act is satisfied if the defendant “knowingly stole or attempted to steal drugs or drug proceeds.”  I read this as requiring proof of knowledge as to the derivation of the items sought.  But what if the defendant robbed a drug dealer and did not know the person was a drug dealer?  Or, what if the defendant knowingly targeted a drug dealer but stole items not derived from the sale of drugs (such as, for example, expensive jewelry that the victim bought with salary from legitimate employment)?  The Court’s language here could invite additional litigation in these cases on the question of where the money to purchase the stolen items came from –  legitimate sources or drug trafficking?

The Court today also decided RJR Nabisco v. European Community (here), which held that in civil RICO litigation, RICO does not apply extraterritorially unless Congress expressly makes it so.  Because civil RICO decisions can affect the scope of criminal RICO prosecutions (each kind of action derives from the same body of statutory law), I will think more about how important this case may (or may not) be in future criminal RICO cases.

And the Court decided Utah v. Strieff (here), holding that the exclusionary rule does not apply where an unconstitutional Terry stop leads to the discovery of an outstanding warrant, the arrest for which turns up drug evidence.  The discovery of the outstanding warrant, the Court held, breaks the chain of causation between the initial illegality and the seizure of the evidence.  I’ll have more to say on Strieff in a future post.

DOJ obtains major Gangster Disciples indictments; 48 charged

The Gangster Disciples originated in Chicago with the merger of two other gangs.  They now have a presence in half of the country.  They are hierarchical, well-organized, and extremely violent.

Yesterday, the Justice Department released now-unsealed indictments from two districts – the Northern District of Georgia and Western District of Tennessee – that charge 48 alleged members of the Gangster Disciples with a wide variety of federal crimes.  The crimes include RICO conspiracy, drug conspiracy, murder in aid of racketeering, extortion, and various firearms offenses, as well as a variety of financial crimes.

From my reading of the indictments, at least one person, named in the NDGA indictment, will be death-eligible for allegedly committing a murder in aid of racketeering and using a firearm during or in relation to the murder (there is no death penalty under RICO, but there is a death penalty under the VICAR statute and the firearms enhancement statute).  Others may be similarly death-eligible using complicity principles (e.g., if others ordered or approved the killing).

The DOJ’s press release is here.  Both indictments are linked at the bottom of the release.


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.

“Whitey” Bulger convictions affirmed

On Friday, the United States Court of Appeals for the First Circuit affirmed the convictions of James J. “Whitey” Bulger, the notorious leader of the Winter Hill gang and subject of the recent film Black Mass (starring Johnny Depp and directed by my fellow Hampden-Sydney alum Scott Cooper).  Bulger had been indicted on multiple counts of racketeering and of violating federal firearms laws.  Notably, Bulger did not challenge the sufficiency of the Government’s evidence against him.  Rather, his claims on appeal related chiefly to an alleged immunity agreement between Bulger and Jeremiah O’Sullivan, a former federal prosecutor; and to the testimony of John Martorano, who was involved in many of the gang’s killings and who received a quite favorable deal from the Government in exchange for his cooperation (which proved very helpful to the Feds, and, as the court notes, was key in bringing charges against Bulger, Stephen “The Rifleman” Flemmi, and FBI Agents John Connolly and Paul Rico).

Those who enjoyed Black Mass and/or have a special interest in federal organized crime and racketeering prosecutions will likely enjoy giving this case a read.  It contains many important details about this sordid story of murder and corruption.  The court’s opinion in United States v. Bulger is here.



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.