Edgar Ayala and Oscar Velasquez are members of La Mara Salvatrucha (generally known as MS 13). They were convicted of various RICO and VICAR offenses in Maryland involving gang related murders, rapes and robberies. RICO is the Racketeer Influenced and Corrupt Organizations Act AND VICAR is the Violent Crimes in Aid of Racketeering statute.

Ayala was the Second Word, or second in command of the Sailors Locos Salvatruchos Westside section of MS13 and Velasques for the First Word or head of the the Teclas Locos Salvatruchos. Both sections were located in the Baltimore area. MS 13, originally found in Los Angeles is now spread throughout the country and Central America. It is known for its use of violence to maintain group discipline, turf control and opposition to other gangs.

Both defendants were convicted of conspiracy to participate in racketeering activity and a VICAR offense, conspiring to commit murder, Ayala was also charged with the VICAR offense of conspiracy to commit murder. On appeal Ayala claimed it was double jeopardy to charge him with both offenses since they were both based on the same conduct. But the Court found that the RICO offense and the VICAR offfenses are two different offenses and Ayala could be convicted of both even though the same conduct led to both convictions. Using the Blockburger test, the court ruled that since the RICO conspiracy and the VICAR conspiracy have at lease one element that is not held in common with the other, Congress in passing the RICO and VICAR sgtatutes want to punish different things and therefore a person could be convicted of both even though they are based on the same behavior.

The VICAR offense unlike the RICO offense requires an intent to elevate one’s position in the gang. The RICO offense, unlike the VICAR offense, requires proof of a pattern of racketeering activity. Thus while the same murder can be used to prove each offense, the offenses are different and according to the court one can be convicted of both without violating double jeopardy.

Section 4248 of the Adam Walsh Child Protection and Safety Act of 2006 Congress authorized the Attorney General and the Director of the Bureau of Prisons or their designees to order the continued incarceration of individuals who they believe to be sexually dangerous beyond the completion of their prison terms and to petition the court to order indefinite incarceration.

The Supreme Court granted cert in United States v. Comstock to determine the constitutionality of the Federal Government holding prisoners after their prison term terminates. In Comstock the Fourth Circuit found the section to be beyond the limited powers granted to Congress by the Constitution. The Court determined that mental heath hospitalization has traditionally been a responsibility of the states.

The First Circuit Court of Appeals, on the other hand found the statute to be legal in United States v. Volungus Volungus was convicted of possession of child porn. He was sentenced to 53 months and released on supervised release. The court revoked his release and sentenced him to 23 months. Two weeks before his 23 months were to end the attorney general petitioned to have him civilly committed. The First Circuit reasoned that since possession of porn is illegal due to its transportation in interstate commerce civil commitments are constitutional under the necessary and proper clause. When the Fourth Circuit considered the necessary and proper clause it found that the issue was not the underlining charges but rather the prevention of of sex crimes and the prevention and prosecution of most sex crimes are not crimes resulting from interstate conference.

Section 4248 has several problems. First it allows one person, who is not a doctor, who is either a prosecutor or a warden to order the continued incarceration of an individual beyond the termination of his legal sentence. Second, it allows a judge, without a jury, but with certain procedural safeguards to order the indefinite commitment of the former prisoner. Third, it allows the commitment of anyone who is “sexually dangerous,” whether or not that person has committed a sexually violent crime. Fourth, it is doing all of this without constitutional authorization. What dictatorship is this?

The FBI tapped Mohammed Said’s cell phone thinking he was a major drug dealer. They heard six conversations between Said and Salman Khade Abuelhawa in which they arranged two cocaine sales to Abuelhawa, each for one gram. A sale of cocaine is a felony and a purchase for personal use is a misdemeanor. But the use of a telephone to facilitate a felonious drug transaction is a felony under 21 USC 843(b). Poor Abuelhawa was charged with six felonies, one for each telephone call. He faced 24 years for the felonies as contrasted to two years for two misdemeanors. His attorney objected that he was only committing a misdemeanor. But both the District Court and the Fourth Circuit Court of Appeals disagreed. (It should be noted that the Seventh Circuit in a similar case agreed with the Fourth Circuit and the Tenth Circuit disagreed finding it not to be facilitation.) They said the plain meaning of “facilitate” is to assist and Abuelhawa was using the phone to assist Said commit a felony. Luckily the Supreme Court in an unanimous decision in United States v. Abuelhawa ruled that a buyer is a buyer and a seller is a seller and the buyer is not facilitating the seller.

So Abuelhawa’s six felony convictions are reversed.