Ninth Circuit extends RICO law to gang-related activity involving kids.

Thanks to a July ruling by the Ninth Circuit, prosecutors can now use the federal racketeering statute in order to fight illegal gang activities--including those involving juveniles.

A three-judge panel said the government can invoke the Racketeer Influenced and Corrupt Organizations Act (RICO) if the alleged illegal acts had even a de minimis effect on interstate commerce. (United States v. Juvenile Male, 118 F.3d 1344 (9th Cir. 1997).)

The ruling stemmed from an Arizona case involving three juvenile members of the "Rolling 30s" Crips gang who allegedly robbed a Subway sandwich shop at gunpoint. The robbers took $100, seven sandwiches, and five bags of potato chips. During the robbery of the store, the clerk was murdered.

The district court held--and the Ninth Circuit affirmed--that the juveniles could be tried as adults since "crimes of violence" were involved.

Because Subway is a chain of stores, many of its retail activities involve interstate commerce, such as purchasing ingredients from out-of-state vendors and sending a percentage of store profits to its out-of-state headquarters. These activities, the Ninth Circuit said, justified the use of the RICO statute.

In addition, the RICO charge alleged, in part, a conspiracy to commit Hobbs Act robberies. The Hobbs Act is directly aimed at economic activities that "in any way or degree . . . affect commerce." In this case, the government argued that the gang members robbed the sandwich shop to get money to buy guns--an act that also affected interstate commerce.

Relying on the Supreme Court's ruling in United States v. Lopez, the defendants argued that the activities prohibited under RICO must substantially affect interstate commerce. Otherwise, they contended, Congress exceeded its Commerce Clause authority in enacting the federal racketeering statute. (514 U.S. 549 (1995).)

The High Court held in Lopez that Congress did exceed its authority by enacting the Gun-Free School Zones Act because possession of a gun in a school zone was not an economic activity that substantially affected interstate commerce.

Addressing the defense claim, the Ninth Circuit noted that in another case, United States v. Robertson, the Supreme Court left open the question whether individual RICO acts must "substantially affect" interstate commerce. (514 U.S. 669 (1995).) The Ninth Circuit also noted that neither it nor the Supreme Court has decided whether Lopez affects the interstate commerce aspect of the RICO statute.

Instead, the Ninth Circuit relied on a case it had decided a year earlier, United States v. Atcheson, which addressed the impact of Lopez on the Hobbs Act. In its opinion, the court had written that, unlike the Gun-Free School Zones Act, "which was aimed at purely local, noneconomic activities, the Hobbs Act is directly aimed at economic activities which `in any way or degree . . . affect commerce.'" (94 F.3d 1242 (1996).)

Because the Hobbs Act is concerned solely with interstate, rather than intrastate, activities, the Ninth Circuit concluded that the "substantially affects" test in Lopez was not applicable. Using Atcheson as a guide, the court found that the government need only prove that the crime had a de minimis effect on interstate commerce to establish jurisdiction in a Hobbs Act case.

Patrick Schneider, assistant U.S. attorney in Phoenix, said the ruling provides another tool for the government in its effort to curb gang-related violence. Under the RICO conspiracy statute, 18 U.S.C. [sections] 1962(d), the government must establish that the gang operates as a racketeering enterprise.

To make their case, prosecutors can introduce information detailing gang activities and gang membership that would otherwise be inadmissible.

"The ruling levels the playing field and allows us to present a fuller picture to the jury," Schneider said.