What can RICO not do? RICO and the non-economic intrastate enterprise that perpetrates only non-economic racketeering activity.

I. INTRODUCTION

Jackson Nascimento belonged to a local street gang that claimed territory on the south side of Boston, Massachusetts. (1) The gang operated exclusively in that area and did not actively participate in economic activity. (2) For several years, Nascimento's gang waged a murderous war against a similarly local street gang. (3) In 2005, Jackson Nascimento was convicted of racketeering and racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). (4) He was sentenced to 171 months in federal prison. (5) In support of the racketeering conviction, the jury found that Nascimento shot and killed one member of the rival street gang and conspired to kill many others. (6) These crimes were violent but non-economic in nature.

RICO is one of the federal government's most sweeping criminal laws. (7) It is aimed at the commercial effects of enterprise criminality, (8) but can be used to prosecute non-economic racketeering activity perpetrated by individuals, like Nascimento, who are associated with non-economic intrastate enterprises. (9)

The Supreme Court of the United States addressed the scope of Congress's power under the Commerce Clause to regulate non-economic intrastate criminal activity in United States v. Lopez, (10) United States v. Morrison, (11) and Gonzales v. Raich. (12) Lopez and Morrison stand for the principle that Congress cannot regulate local, non-economic, violent criminal activity unless it has substantial effects on interstate commerce. (13) In Raich, the Court held that Congress may regulate non-economic intrastate activity as an essential part of a larger and valid regulatory scheme so long as there is a rational basis for so doing. (14) The impact of these decisions on federal criminal law is hotly debated, (15) but commentators generally agree that prosecutions under major criminal statutes, like RICO, have not slowed. (16)

The Supreme Court's recent Commerce Clause jurisprudence, however, has had some effect on RICO's enforcement. Two federal circuit courts recently split over whether RICO's jurisdictional element requires the Government to prove substantial effects on interstate commerce where the defendant, associated with a non-economic intrastate enterprise, commits only non-economic "racketeering activity." In Waucaush v. United States', the Sixth Circuit held that RICO's jurisdictional element required the Government to demonstrate substantial effects on interstate commerce to prosecute an individual, associated with a non-economic intrastate enterprise, accused of only non-economic racketeering activity. (17) In United States v. Nascimento, the First Circuit diverged from that opinion and held that RICO's jurisdictional element required proof of only a de minimis effect on interstate commerce. (18) In the same case, the First Circuit analyzed RICO under the principles set forth in Raich--an analysis that may subjugate the role of RICO's jurisdictional element altogether. (19)

This Comment will discuss these two important and related issues. Part II of this Comment will provide an overview of RICO's original design and subsequent application. Part III addresses RICO's jurisdictional element and whether it requires that non-economic racketeering activity perpetrated by individuals associated with non-economic intrastate enterprises substantially affect interstate commerce or only affect interstate commerce. Part III is divided into several sections. Section 1 describes [section] 1962(c) of RICO, its text, important terms, liberal construction, and potential reach. (20) Section 2 examines Lopez and Morrison to elucidate the scope of Congress's commerce power. Section 3 examines the Sixth and First Circuits' split in Waucaush and Nascimento, respectively. Section 4 explores what evidentiary standard the federal courts should require. Though this Comment recognizes that requiring substantial effects on interstate commerce would be a jurisprudential sea change, it ultimately concludes that the affecting commerce standard should mean more than a speculative or incidental effect on interstate commerce. Non-economic racketeering activity perpetrated by individuals associated with non-economic intrastate enterprises should fall outside RICO. Part IV examines what impact the Supreme Court's holding in Raich will have on RICO's jurisdictional element. Part IV is also divided into several sections. Section 1 examines the Supreme Court's holding in Raich. Section 2 discusses the implications of applying Raich's holding to [section] 1962(c) of RICO. Section 3 concludes that the First Circuit erred in its holding, and argues that because non-economic racketeering activity perpetrated by an individual associated with a non-economic intrastate enterprise is separate and distinct from the class of activity regulated by RICO, there is no rational basis for incorporating it into RICO's larger regulatory scheme.

II. BACKGROUND