The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.
Defendants Guang Ju Lin and Yudi Liu were indicted by a grand jury on August 4, 2009 and charged with murdering and aiding and abetting the murder of Danny Cabezas in furtherance of a racketeering enterprise in violation of 18 U.S.C. § 1959. Defendants have filed motions to dismiss the indictment on the grounds that 18 U.S.C. § 1959 is unconstitutional both on its face and as applied to them because the provision lacks the required connection to interstate commerce and is unconstitutionally vague. The Court denied the motions after oral argument for the reasons set forth below.
The indictment alleges that both defendants were members of the Ah Jun Organization, a criminal enterprise whose members engaged in such criminal activities as murder, extortion, illegal gambling, and drug trafficking. (Indict. ¶¶ 1, 5.) Defendants allegedly murdered and aided and abetted the murder of Danny Cabezas in late 2001 as part of their efforts to increase their status with the Ah Jun Organization. (Id. ¶ 8.)
As noted above, Lin and Liu have now moved to dismiss the indictment.
The indictment alleges violations of 18 U.S.C. § 1959, which makes violent crimes committed in connection with a racketeering enterprise a federal crime as follows:
Whoever,... for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall [commit a crime].
18 U.S.C. § 1959(a). Defendants contend that section 1959 lacks the connection to interstate commerce required for Congress to legislate in an area otherwise left to the states' general police powers, and that the indictment fails to allege a sufficient nexus between the acts charged and interstate commerce. Defendants also seek dismissal of the indictment based on the argument that section 1959 is unconstitutionally vague as applied to them because it does not provide notice of what constitutes a crime and it is impermissibly vague regarding the meaning of an enterprise "engaged in racketeering activity."
A. Section 1959 is not Unconstitutional on its Face
"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987).
In United States v. Torres, 129 F.3d 710 (2d Cir. 1997), the U.S. Court of Appeals for the Second Circuit, applying the Supreme Court decision in United States v. Lopez, 514 U.S. 549 (1995), found that section 1959 is a valid exercise of Congress's Commerce Clause power. In doing so, the court found that the jurisdictional element contained in Section 1959(b)(2), which defines "enterprise" as an association "engaged in, or the activities of which affect, interstate or foreign commerce," satisfied Lopez by "requiring a nexus between the offense in question and interstate commerce." Torres, 129 F.3d at 717. The Second Circuit reached a similar conclusion in United States v. Mapp, although it did so in dicta while addressing whether section 1959 reaches only intentional murders. 170 F.3d 328 (2d Cir. 1999). The court noted that because our interpretation of [Section 1959] preserves the requirement that any predicate murder... bear a strong relationship to racketeering activity that affects interstate commerce, it does not risk improperly making purely local crimes a matter of federal concern.
Defendants assert that since the Supreme Court's decision in United States v. Morrison, 529 U.S. 598 (2000), the presence of a jurisdictional element such as the one found in section 1959-and on which the Second Circuit based its decision in Torres-is not enough to bring a provision within Congress's Commerce Clause powers. In Morrison, however, the Supreme Court held that a provision of the Violence Against Women Act exceeded Congress's authority under the Commerce Clause on the grounds that gender-motivated violence was a noncommercial activity that did not have a substantial effect on interstate commerce. Morrison, 529 U.S. at 1754. But the statute at issue in Morrison, 18 U.S.C. § 13981, differed from section 1959 in that it lacked a jurisdictional element and the statute instead relied solely on the cumulative effect of gender-motivated violence on ...