Ripped from the headlines: “11 L.A. ‘18th Street’ Gang Members Face RICO Charges for Aiding Mexican Mafia,” and “Two Dozen Members of Florencia 13 Gang Named in RICO Indictment That Alleges Drug Trafficking and Shootings of African-Americans.” The presence of gangs in the United States has grown rapidly in recent decades, plaguing nearly every city and state, and leading to new challenges for law enforcement. These gangs are often highly sophisticated, relying heavily on drug trafficking and the drug industry in general, and carrying out violent crimes such as murder, armed robbery, kidnapping, and extortion, to ensure their survival. In some respects, these gangs mimic the classic Mafia crime organization, having many of the same characteristics and infrastructure, and carrying out the same crimes.
The Racketeer Influenced and Corrupt Organizations Act (“RICO”) was adopted in 1970 to help combat the nation’s growing organized crime problem. RICO was considered largely successful in contributing to the dismantling of the country’s major Mafia organizations by attacking their financial bases and making it more difficult for these groups to infiltrate legitimate business organizations. When sophisticated urban street gangs replaced the Mafia on the forefront of the American criminal scene, RICO served as a useful tool to attack these groups just like it did the Mafia, and the federal government’s involvement did not raise many eyebrows. After all, highly organized gang activity can be a major drain on the economy, as well as a serious threat to personal safety that transcends state boundaries.
However, the sweeping reach of RICO must be retracted when it simply goes too far. And it goes too far when the government uses RICO to prosecute ordinary, yet violent, street thugs. These street thugs commit crimes, yes, but crimes typically and properly left to the states to prosecute. This Comment argues for a limit to RICO’s application and advocates that the line be drawn between the sophisticated urban street gang involved in economic and commercial activities and the ordinary street gang that carries out no economic activity at all. This restraint must be made or RICO will literally become the federal government’s one stop shop for combating all crimes, including those typically left to the states to handle.
The RICO statute contains a commerce element, meant to ensure the statute is applied without violating the Constitution, namely Congress’s permissible regulatory power under the Commerce Clause. When RICO is applied to intrastate activity with an economic component and the government must only show a minimal connection to interstate commerce, there is no constitutional concern because that intrastate activity, when aggregated, creates a substantial effect on interstate commerce, thus bringing that activity within Congress’s permissible realm of control. Examples of this kind of application would be RICO prosecutions of Mafia members or sophisticated urban street gangs carrying out crimes such as robbery, extortion, or drug trafficking. However, when RICO is applied to an enterprise participating in noneconomic activity, serious constitutional doubt arises.
In July 2007, the First Circuit acknowledged its holding was about to create a circuit split in the arena of prosecutions under RICO. Nevertheless, the court in United States v. Nascimento determined, after “grappling with [a] difficult question,” that the government need only show a de minimis connection between the activities of a gang engaged in purely violent, noneconomic conduct and interstate commerce. The Sixth Circuit, on the other hand, came to the opposite conclusion three years prior. The court in Waucaush v. United States held that where a gang is not involved in any economic activity at all, a de minimis standard would not suffice to justify a federal RICO prosecution.
The Waucaush court was correct in advocating a “substantial effects” standard, whereby the government would have to show that a gang, engaged exclusively in noneconomic criminal activity, carried out activities that had a substantial effect on interstate commerce. This standard is necessary in order to respect Commerce Clause jurisprudence, the recent Supreme Court decisions addressing the need for an economic component to Congress’s regulation, as well as the original intent and purpose of RICO. Even though the Sixth Circuit’s holding in Waucaush is the proper standard, the court’s analysis lacks the appropriate reasoning and leaves the decision open for serious criticism. Because of the important constitutional and federalism questions it faced, the court should have addressed rather obvious counterarguments and should have explored in more detail the fundamental constitutional underpinnings of its holding.