U.S. v. Nascimento

491 F.3d 25

UNITED STATES of America, Appellee, v. Jackson NASCIMENTO, Defendant, Appellant.

United States of America, Appellee, v. Lance Talbert, Defendant, Appellant.

United States of America, Appellee, v. Kamal Lattimore, Defendant, Appellant.

No. 06-1152.

No. 06-1153.

No. 06-1154.

United States Court of Appeals, First Circuit.

Heard May 8, 2007.

Decided July 2, 2007.

Ryan M. Schiff, with whom John Salsberg and Salsberg & Schneider were on brief, for appellant Nascimento.

Albert F. Cullen, Jr., with whom Law Office of Albert F. Cullen, Jr. was on brief, for appellant Talbert.

Wayne R. Murphy, with whom Murphy & Associates was on brief, for appellant Lattimore.

Michael A. Rotker, Attorney, United States Department of Justice (Criminal Division, Appellate Section), with whom Michael J. Sullivan, United States Attorney, Theodore B. Heinrich, Glenn A. MacKinlay, and Donald L. Cabell, Assistant United States Attorneys, were on brief, for appellee.

Before BOUDIN, Chief Judge, SELYA, Senior Circuit Judge, and STAFFORD,^* Senior District Judge.

SELYA, Senior Circuit Judge.

The pivotal issue in this case concerns the application of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, to a street gang engaged in violent, but noneconomic, criminal activity. That issue possesses constitutional implications weighty enough to have led one of our sister circuits to fashion a special, more rigorous, version of RICO's statutory "affecting commerce" requirement for use in connection with defendants involved with enterprises that are engaged exclusively in noneconomic criminal activity. See Waucaush v. United States, 380 F.3d 251, 256 (6th Cir.2004). Although we are reluctant to create a circuit split, we conclude, after grappling with this difficult question, that the normal requirements of the RICO statute apply to defendants involved with enterprises that are engaged only in noneconomic criminal activity. Based on that conclusion and on our resolution of a golconda of other issues ably raised by highly competent counsel, we affirm the appellants' convictions. The tale follows.

I.

We begin with a brief synopsis of the facts. We will embellish upon that synopsis as we reach and discuss particular issues.

In the mid-1990s, a group of youths of Cape Verdean ancestry routinely congregated around Wendover Street in the Dorchester section of Boston, Massachusetts. In 1995, one of these youths (Nardo Lopes) killed another (Bobby Mendes). Nardo then went into hiding; as of the time of trial in this case, he remained a fugitive from justice.

Nardo's brother, Augusto Lopes, was also a Wendover regular. Though he was incarcerated at the time of the Mendes slaying, he resolved upon his release from prison, in July of 1996, to kill the potential witnesses against his brother. That resolve extended to many of his old Wendover Street associates.

In late 1997, Augusto Lopes began associating with Manny Monteiro, who introduced him to a group of individuals whose base of operations was Stonehurst Street in Dorchester. Lopes's new friends were part of a street gang that controlled Stonehurst Street. He soon learned that Stonehurst members "had problems" with their Wendover counterparts. Although the source was never clearly established, the antagonism was real: during the period from 1998 to 2000, a wave of violence transpired in which Stonehurst members repeatedly shot at Wendover members and Wendover members retaliated in kind. Augusto Lopes was integrally involved in this cacophony of ongoing mayhem.

In September of 2004, a federal grand jury returned a thirty-three count superseding indictment naming thirteen defendants. Three of these defendants are appellants here. With respect to them, the flagship charge was that they had violated RICO through their membership in a racketeering enterprise: Stonehurst. The indictment alleged that Stonehurst's primary purpose was "to shoot and kill members, associates, and perceived supporters of a rival gang in Boston known as Wendover."¹ To buttress this allegation, the indictment enumerated nearly two dozen instances of murder and assault with intent to kill purportedly committed by Stonehurst members.

Seven individuals, including all three appellants, were tried together on assorted charges stemming from their involvement with Stonehurst. Augusto Lopes became a government witness and testified against his former Stonehurst allies, as did two other cooperating witnesses (Marcelino Rodrigues and Jason Burgo). The government also adduced testimony from a number of other eye-witnesses about various shootings. Police testimony, ballistics evidence, and the like completed the prosecution's case.

Following a twenty-six day trial, four defendants were acquitted. The three appellants did not fare as well.

The jurors convicted one appellant, Jackson Nascimento, of racketeering, 18 U.S.C. § 1962(c), racketeering conspiracy, id. § 1962(d), conspiracy to commit murder in aid of racketeering in violation of the Violent Crimes in Aid of Racketeering statute (VICAR), id. § 1959(a)(5), a VICAR assault charge, id. § 1959(a)(3), and use of a firearm in the commission of a crime of violence, id. § 924(c). The racketeering conviction was supported by special findings to the effect that Nascimento had (i) shot Zilla DoCanto and (ii) conspired to murder members of Wendover. The jury rejected the government's contention that Nascimento had perpetrated a second shooting and acquitted him of a second count of violating 18 U.S.C. § 924(c).

The jurors convicted a second appellant, Lance Talbert, on a RICO conspiracy count, a substantive RICO count, and a count charging VICAR murder conspiracy. The jury found specially that Talbert had shot Wendover member Adiello DaRosa and had conspired to murder members of Wendover. The government also had charged Talbert with having engaged in another shooting but dropped those charges at the close of the evidence.

The jurors convicted the third appellant, Kamal Lattimore, on both a RICO conspiracy count and a substantive RICO count. However, the district court immediately granted a judgment of acquittal as to the latter count. The jury acquitted Lattimore of a firearms charge and of charges of VICAR assault and VICAR conspiracy.

Following the verdict, the appellants moved for judgments of acquittal or, in the alternative, new trials. See Fed.R.Crim.P. 29, 33. The district court denied these motions in full.

On December 15, 2005, the district court sentenced Nascimento to a 171-month incarcerative term, Talbert to a 57-month incarcerative term, and Lattimore to a 46-month incarcerative term. These timely appeals ensued.

II.

Five elements must coalesce to make out a substantive RICO violation. The government must show: "(1) an enterprise existed; (2) the enterprise participated in or its activities affected interstate commerce; (3) the defendant was employed by or was associated with the enterprise; (4) the defendant conducted or participated in the conduct of the enterprise; (5) through a pattern of racketeering activity." United States v. Marino, 277 F.3d 11, 33 (1st Cir.2002). The appellants challenge the sufficiency of the evidence on the first, second, and fifth elements.

VICAR, as well as RICO, is in play here. VICAR requires that a defendant have committed a crime of violence in return for something of pecuniary value from, or in order to advance or maintain his position within, an enterprise affecting interstate commerce that is engaging in a pattern of racketeering activity. 18 U.S.C. § 1959. Thus, a successful sufficiency challenge to the RICO convictions also will serve to undermine the VICAR convictions. Similarly, inasmuch as Nascimento's conviction under 18 U.S.C. § 924 was predicated on his having committed a VICAR assault on Zilla DoCanto, that conviction will be nullified if the VICAR charge is found to be unsupportable.

Although the appellants' arguments come in a kaleidoscopic array of shapes and sizes (including frontal attacks on the sufficiency of the evidence, questions about statutory construction, constitutional challenges, and complaints about jury instructions), we organize our discussion thematically, element by element.

A.

The first element of a RICO offense requires proof of the existence of an enterprise. The enterprise need not be a legitimate business or a form of organization sanctioned by state law. United States v. Turkette, 452 U.S. 576, 587, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). It "need only be a group of persons associated together for a common purpose of engaging in a criminal course of conduct." United States v. Connolly, 341 F.3d 16, 28 (1st Cir.2003) (citations and internal quotation marks omitted).

Despite the absence of any requirement of formal sanction, the government nonetheless must prove that the enterprise existed in some coherent and cohesive form. Turkette, 452 U.S. at 583, 101 S.Ct. 2524. It follows that the enterprise must have been an "ongoing organization" operating as a "continuous unit." Connolly, 341 F.3d at 25.

In all events, the enterprise must be distinct from the pattern of racketeering activity that constitutes the fifth, and final, element of a RICO offense. See Turkette, 452 U.S. at 583, 101 S.Ct. 2524. An enterprise is chiefly distinguished from the pattern of racketeering activity by the fact that it possesses some goal or purpose more pervasive and more enduring than the instant gratification that can accrue from the successful completion of each particular criminal act. See Connolly, 341 F.3d at 25.

Here, the appellants argue that the government failed to present sufficient evidence of the existence of an enterprise or, alternatively, that the district court's jury instructions obscured the difference between RICO's "enterprise" and "pattern" elements. In a related vein, they argue that the government failed to prove that the enterprise was of sufficient...