US v. Brandao

Filing 920070706

Opinion

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var WPFootnote1 = '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. \
'

var WPFootnote2 = 'The trial transcript reveals quite clearly that the able\
district judge reined in witnesses who attempted to discuss matters\
outside that time frame.\
'

var WPFootnote3 = 'Among their gallimaufry of arguments, the appellants suggest\
that our opinion in United States v. McCormack, 371 F.3d 22, 28\
(1st Cir. 2004), vacated on other grounds, 543 U.S. 1098 (2005),\
required a showing of a heightened effect on commerce to sustain a\
Hobbs Act conviction when the victim of the robbery was not a\
business. This suggestion overlooks the fact that we applied a de\
minimis standard in McCormack itself. See id. (stating that the\
evidence showed "a \'realistic probability\' that the [underlying\
crime] would have a de minimis effect on interstate commerce"). \
The language in McCormack to which the appellants advert relates to\
the degree of scrutiny, not the quantum of proof.\
'

var WPFootnote4 = 'We think it is useful to note at this juncture that Waucaush\
was decided without the benefit of the Supreme Court\'s decision in\
Gonzales v. Raich, 545 U.S. 1 (2005), a precedent that we find\
instructive on the constitutional issue. See Part II(B)(2), infra. \
\
'

var WPFootnote5 = 'The Jones Court specifically distinguished the phrasing of\
the arson statute from statutes reaching all activity "affecting\
commerce," describing the latter phrase as "words that, when\
unqualified, signal Congress\' intent to invoke its full authority\
under the Commerce Clause." Jones, 529 U.S. at 854. Given that\
the RICO statute uses precisely this phraseology, we do not think\
that Jones lends any support to the notion that the words "affect\
. . . commerce" may be read vagariously in the name of\
constitutional avoidance. \
'

var WPFootnote6 = 'To be sure, this degree of deference to congressional\
classifications may create perverse incentives. Yet, one of the\
dissenters in Raich made this argument, see Raich, 545 U.S. at 46\
(O\'Connor, J., dissenting), and the majority bluntly rejected it. \
See id. at 25 n.34 (opinion of the Court). We, like the Justices,\
are confident that political checks and balances will prevent any\
such legislative overreaching. \
'

var WPFootnote7 = 'Travel to another state in order to effectuate a gun purchase\
distinguishes this case from Garcia, a district court case relied\
on by the appellants. In finding insufficient evidence of economic\
activity to sustain a RICO conviction of a street gang, the Garcia\
court took pains to note the absence of any allegation "that the\
members of the [gang] traveled out of state to purchase weapons." \
143 F. Supp. 2d at 807.\
'

var WPFootnote8 = 'Nascimento offers a laundry list of cases in which courts\
have overturned convictions under RICO and VICAR based on the\
prosecution\'s failure to establish the requisite nexus between the\
predicate act and the enterprise. See, e.g., United States v.\
Bruno, 383 F.3d 65, 85-86 (2d Cir. 2004); United States v.\
Ferguson, 246 F.3d 129, 136 (2d Cir. 2001); United States v.\
Polanco, 145 F.3d 536, 539-40 (2d Cir. 1998); United States v.\
Thai, 29 F.3d 785, 818 (2d Cir. 1994). Without exception, these\
cases — all of which either explore the degree of attenuation\
permissible between a racketeering act and an enterprise or\
highlight the utter absence of any evidence supporting a\
relationship between the two — are inapposite.\
'

var WPFootnote9 = 'This result is consistent with our earlier implication that,\
in a small space such as a 10-foot by 10-foot room, even a\
handcuffed suspect has a "grab area" covering most of the room. \
See United States v. Ortiz, 146 F.3d 25, 28 (1st Cir. 1998).\
'

var WPFootnote10 = 'Jones v. United States, 529 U.S. 848 (2000), is also cited\
along with the Lopez-Morrison duo, but Jones was a statutory\
interpretation case and did not directly engage the scope of\
Congress\'s commerce power.\
'

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