The opinion of the court was delivered by: WOOD
Defendant moves to dismiss both counts of his indictment on the ground that, under the standards articulated in United States v. Lopez, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), the statute underlying both counts, 18 U.S.C. § 1959 (Supp. 1997) ("Section 1959"), exceeds the power delegated to Congress in the Commerce Clause of the United States Constitution. U.S. Const., Art. I, cl. 3.
The government contends that Section 1959 is within the power delegated to Congress. In company with lower courts and litigants across the nation,
this Court thus must consider the judicially enforceable limit on Congress's commerce power in light of Lopez.
Defendant is charged with committing murder "for the purpose of gaining entrance to and increasing his position in" a racketeering enterprise. (See Indictment of Robert Riley, 97 Cir. 446 at 1-2.) Section 1959 makes it a crime, inter alia, to commit murder "for the purpose of gaining entrance to or maintaining or increasing [one's] position in an enterprise engaged in racketeering activity." 18 U.S.C. § 1959(a) (hereinafter "status murder"). For the reasons stated below, I hold that the Section 1959 prohibition on status murder is within the scope of the power delegated to Congress in the Commerce Clause and accordingly I deny defendant's motion to dismiss the indictment.
My holding is limited to Section 1959's prohibitions on status murder, because those prohibitions are the basis for defendant's indictment. I do not consider whether other provisions of Section 1959 (such as the murder-for-hire provision that defendant also challenges) not at issue here would be similarly upheld in the face of a constitutional challenge.
In United States v. Lopez, 514 U.S. 549, 559-67, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), the Supreme Court decided that the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A) (1988), was unconstitutional because it exceeded congressional power under the Commerce Clause. The Commerce Clause delegates to Congress power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const., Art I, § 8, cl. 3. With one exception,
Lopez is the first Supreme Court decision in more than fifty years to hold that legislation exceeded the limits of Congress's power under the Commerce Clause. The Lopez Court identified three categories of activities that Congress may regulate as part of its commerce power:
First, Congress may regulate the use of the channels of interstate commerce. . . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may only come from intrastate activities. . . . Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.
Id. at 558-59 (internal citations omitted). As in Lopez, the first and second categories are not relevant to defendant's constitutional challenge to the statute. See id. at 559 (holding the first two categories inapplicable). The prohibition on violence for the purpose of improving one's status in a racketeering enterprise is not a regulation of the use of the channels of interstate commerce, or the instrumentalities of interstate commerce, or of persons or things in interstate commerce.
As I explain below, I find that Congress has made a rational determination that status murder, when viewed in aggregate numbers, substantially affects interstate commerce, and that the prohibition on status murder in Section 1959 has a jurisdictional element that limits its scope to murders committed as an aspect of membership in an enterprise engaged in interstate commerce, or engaged in activities that affect interstate commerce.
A. Activity Which in the Aggregate Substantially Affects Commerce
When considering a challenge to Congress's authority under the Commerce Clause, where the court finds "that the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, [the court's] investigation is at an end." Katzenbach v. McClung, 379 U.S. 294, 303-04, 13 L. Ed. 2d 290, 85 S. Ct. 377 (1964) (cited in Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Maryland v. Wirtz, 392 U.S. 183, 190, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968)). In making such determinations, courts consider legislative and congressional committee findings regarding the activity's effect on interstate commerce. Lopez, 514 U.S. at 562. Cf. United States v. Genao, 79 F.3d 1333, 1336 (2d Cir. 1996) (mentioning the rational basis test set forth in Wirtz).
Accordingly, I turn to congressional sources to determine whether Congress had a rational basis for finding Section 1959's prohibitions necessary to the protection of commerce. See Wirtz, 392 U.S. at 190 (applying rational basis test); Hodel, 452 U.S. at 276 (same); McClung, 379 U.S. at 303-04 (same).
Defendant argues that the congressional commentary on the status murder prohibitions in Section 1959 is too sparse to merit any deference, and that these prohibitions regulate activity that, even when aggregated, does not substantially affect interstate commerce. The implication of this second contention is that ...