U.S. v. Garcia

• Decision Date: 22 September 1999
• Docket Number: No. 97-80727.,97-80727.
• Citation: 68 F.Supp.2d 802
• Parties: UNITED STATES of America, Plaintiffs, v. Efraim GARCIA, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

Page 802

68 F.Supp.2d 802

UNITED STATES of America, Plaintiffs, v. Efraim GARCIA, Defendant.

No. 97-80727.

United States District Court, E.D. Michigan, Southern Division.

September 22, 1999.

COPYRIGHT MATERIAL OMITTED

William Sauget, AUSA, Detroit, MI, for Plaintiffs.

Jeffrey Urdanger, Chicago, IL, Harold Gurewitz, Birmingham, MI, for Defendants.

OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS THE THIRD SUPERCEDING INDICTMENT

EDMUNDS, District Judge.

For the alleged intentional killing of Evan Ison, the Government has charged Efraim Garcia with murder in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(1) ("VCAR") in Count IV. In connection with this count, the Government filed a Notice of Intent to Seek the Death Penalty pursuant to 18 U.S.C. § 3593(a). Garcia is also charged in Count III with conspiracy to violate VCAR. He has moved to dismiss the charges filed against him, arguing that the allegations supporting federal jurisdiction are insufficient. With respect to Counts III and IV, this Court agrees.¹

I. Standard of Review

Pursuant to Fed.R.Crim.Pro. 12(b)(2), a defendant may raise "[d]efenses and objections based on defects in the indictment or information" before trial. Fed.R.Crim.Pro. 12(b)(2). Challenges to the efficacy of federal jurisdiction may be raised at any time during the pendency of the proceedings. Id.; United States v. Vanover, 888 F.2d 1117, 1120 (6th Cir. 1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2177, 109 L.Ed.2d 506 (1990). As used in Rule 12, jurisdiction refers to jurisdiction over the subject matter. United States v. Chambers, 944 F.2d 1253, 1259-60 (6th Cir.1991), cert. denied sub nom., Lucas v. United States, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992). A district court may make "preliminary findings of fact necessary to decide questions of law presented by pretrial motions so long as the trial court's conclusions do not invade the province of the ultimate finder of fact." United States v. Levin, 973 F.2d 463, 467 (6th Cir.1992).

II. Statement of Facts

Efraim Garcia is alleged to have been a member of a street gang known as the Cash Flow Posse. This gang allegedly formed in 1988-89 to counteract high pressure recruiting tactics of two nationally recognized street gangs, the Latin Counts and the Cobras, who attempted to recruit new members in southwest Detroit. In lieu of joining the existing gangs, twelve young men created their own group, the "Cash Flow Posse."

The indictment alleges that gang members engaged in numerous acts of murder and assault. Garcia is alleged to have murdered Douglas Williams, LaVonda Brown, James Goings, Annie Johnson, and Evan Ison. The alleged murder of Evan Ison occurred on or about November 26, 1994 in the City of Detroit. Garcia is alleged to have murdered Evan Ison by fatally shooting him in the head at close range.

He is also alleged to have conspired to murder and to have assaulted with the intent to murder Shirley Johnson. Finally, he is alleged to have committed several other assaults with intent to murder and to have conspired with other members of the Cash Flow Posse to murder rival gang members.

Specifically, the Third Superceding Indictment (hereinafter "indictment") alleges four counts:

Count I: Racketeer Influenced and Corrupt Organizations Act, ("RICO"), 18 U.S.C. § 1962(c); § 1961(1); § 1961(5). The Cash Flow Posse, of which Garcia was allegedly a member, is alleged to be an enterprise as that term is defined in 18 U.S.C. § 1961(4). It is alleged that the enterprise engaged in, and that its activities affected, interstate commerce, in that

(1) Gang members traveled on an interstate highway (I-94) from Detroit to Port Huron (which are both Michigan cities) to commit murders;

(2) One gun used by gang members was manufactured in another state;

(3) Guns used by the gang were purchased at the Gibraltar Trade Center, which frequently does business with citizens from other states;

(4) One gang member heard from a cell-mate that a law enforcement officer had alluded to the possibility of Cash Flow Posse "cells" existing in other states; and

(5) Two gang members, in their plea colloquies, acknowledged discussing, with outside parties, the law enforcement initiatives against the Cash Flow Posse while on a trip to Mexico.

The indictment further alleges that the enterprise engaged in a pattern of racketeering activity consisting of twelve acts, including murder and assault which are punishable under state law. The indictment does not allege other predicate acts which typically accompany a RICO claim such as kidnapping, extortion, robbery, or money laundering. The predicate acts are common law crimes that are traditionally prosecuted by the states.²

Count II charges the Defendant with RICO conspiracy in violation of 18 U.S.C. § 1962(d). It alleges that from January 1988 until March 11, 1999, the Defendant conspired with others to violate 18 U.S.C. § 1962(c), which forms the basis for Count I. The pattern of racketeering activity consists of the various acts delineated in Count I.

Count III charges the Defendant with a violation of 18 U.S.C. § 1959, which prohibits violent crimes in aid of racketeering ("VCAR"). In connection with this count, Garcia allegedly conspired with others to murder rival gang members for the purpose of maintaining and increasing his position in the Cash Flow Posse.

Finally, Count IV alleges that Garcia violated 18 U.S.C. § 1959 by murdering Evan Ison. Count IV alleges that he committed the murder for the purpose of maintaining and increasing his position in the Cash Flow Posse. It is in connection with this count that the Government filed its Notice of Intent to Seek the Death Penalty pursuant to the Federal Death Penalty Act of 1994, ("FDPA") 18 U.S.C. § 3591, et. seq. The murder alleged in Count IV allegedly occurred on or about November 26, 1994, and thus is the only individual act of murder Garcia is alleged to have committed since the passage of the FDPA, which provides for the possibility of a death sentence, if proven.³ The indictment alleges that the Defendant committed this murder "deliberately, with the intent to kill, and with premeditation ... in violation of Michigan Compiled Laws § 750.316." See Third Superceding Indictment, Count IV at p. 14.

Of the eight defendants indicted by the government, only Garcia was charged with an individual substantive count under VCAR and only Garcia faces the death penalty. The violent act which constitutes Count IV is an intentional killing punishable under Michigan law. Wilson Rivera, a federally unindicted yet alleged co-gang member of Defendant Garcia's, is currently serving two life sentences without the possibility of parole for two of the murders that Garcia is alleged to have committed under Count I of the Third Superceding Indictment. The first two iterations of the indictment charged the murder of Evan Ison only as a predicate RICO act, not as an individual VCAR count. The RICO counts carry mandatory life in prison sentences in the event of conviction. It was not until the Second Superceding Indictment that Garcia was charged with the murder of Evan Ison as a separate VCAR offense in Count IV, thereby establishing a basis for the government to seek the death penalty.

III. Federal Death Penalty Act

In 1994, Congress passed the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591 et. seq., which delineates the procedures which must be followed in a case in which the Government seeks the death penalty. The intentional killing alleged in Count IV is charged under the VCAR statute, which carries with it the possible sentence of death, if proven.⁴ Section 1959(a)(1) provides,

Whoever, as consideration to the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or 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 be punished — (1) for murder, by death or life imprisonment ....

18 U.S.C. § 1959(a)(1) (emphasis added).

The Government alleges that the murder of Evan Ison falls within this section, and it is this offense which forms the basis for the Government's Notice of Intent to Seek the Death Penalty. If the Government proves beyond a reasonable doubt that Garcia committed this capital offense, the jury would proceed to consider, under FDPA, whether the punishment of death is justified under the circumstances. 18 U.S.C. § 3591(a).

IV. The Commerce Power

A. United States v. Lopez

Because Congress does not have unlimited ability to pass criminal legislation all federal criminal statutes must have some nexus to a federal constitutional power. This nexus is often found in the Commerce Clause. Article I, Section 8, Clause 3 of the U.S. Constitution grants Congress the 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. This language, commonly referred to as the Commerce Clause, gives Congress the power to regulate "three broad categories of activity": (1) that involving the use of channels of interstate commerce; (2) that involving instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities, and finally (3) that substantially affecting interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). It is the third category that is at issue in this case.⁵

Congress has inherent authority to pass criminal laws which...