MEMORANDUM OPINION

THOMAS ELLIS, District Judge

In this multi-defendant multi-count RICO prosecution, two of the remaining defendants attack counts of the Fifth Superseding Indictment that allege (i) violent crimes in aid of racketeering activity, in violation of 18 U.S.C. § 1959 (VICAR), and (ii) the use and carrying of a firearm during and in relation to a violent crime in aid of racketeering, in violation of 18 U.S.C. § 924(c). These counts charge defendants with assault with a dangerous weapon in violation of Virginia's malicious or unlawful wounding statute, Va. Code § 18.2-51, or brandishing statute, Va. Code § 18.2-282, in aid of racketeering. Defendants seek dismissal of these counts on the ground that the elements of malicious or unlawful wounding and brandishing under Virginia law do not match — element-by-element — with the elements of assault with a dangerous weapon, as defendants contend is required by § 1959. Therefore, the question presented by defendants' dismissal motion is whether counts alleging an assault with a dangerous weapon in violation of state law pursuant to 18 U.S.C. § 1959 must be dismissed if the elements of assault with a dangerous weapon, as that crime is generically defined, do not match — element-by-element — with the elements of the state law allegedly violated. More precisely, the question with regard to counts three, four, seven, sixteen, seventeen, and twenty-three is whether, as defendants contend, it is necessary for the elements of a generic assault with a dangerous weapon to match — element-by-element — with the elements of the crime of brandishing, as defined in Virginia law, Va. Code § 18.2-282. And, the precise question with regard to count twelve is whether, as defendants contend, it is necessary for the elements of a generic assault with a dangerous weapon to match — element-by-element — with the crime of malicious or unlawful wounding, as defined in Virginia law, Va. Code § 18.2-51.

I.

The essential facts underlying the Indictment as a whole may be summarized briefly. To begin, the Indictment alleges that the seven charged defendants, four of whom have already pled guilty, are active members of a criminal enterprise or gang consisting primarily of Vietnamese youth and known as the "Oriental Playboys" or "OPB." The defendants and other OPB members allegedly socialized and lived together and often engaged in acts of violence together. More specifically, according to the Indictment, defendants and other OPB members committed various crimes, including burglary, drug distribution, credit card fraud, murder, assault, robbery, and firearms violations in Virginia, Maryland, and elsewhere between August 2000 and July 2003 for the purposes of enriching OPB members and enhancing the power, status, and position of OPB in the community. Much of the alleged violence perpetrated by OPB members was intended to protect its members from, or to retaliate against, known rival youth gangs, such as the "Dragon Family" and the "Oriental Bloods." Central to the Indictment is the allegation that defendant Cuong Gia Le shot four individuals at the Majestic Restaurant in Falls Church, Virginia on May 13, 2001. This incident is the basis for nine counts against Le and the other six defendants who allegedly assisted Le in fleeing the scene and the area following the murders. Of the remaining three defendants — Le, Loc Tien Nguyen, and Phu Van Ho — Ho allegedly fled from the Majestic Restaurant with Le immediately after the murders and Nguyen allegedly assisted Le in fleeing to New York City shortly thereafter.

The specific counts at issue here are (i) counts three, four, seven, sixteen, seventeen, and twenty-three, all of which allege that defendants committed assaults with a dangerous weapon in violation of Virginia's brandishing statute, Va. Code § 18.2-282, in aid of racketeering, and (ii) count twelve which alleges that Le committed an assault with a dangerous weapon in violation of Virginia's malicious or unlawful wounding statute, Va. Code § 18.2-51, in aid of racketeering. Each of the counts charging that defendants violated Virginia's brandishing statute, Va. Code § 18.2-282, allege the date and location of the alleged criminal act, but not defendants' specific conduct. The nature of that conduct, however, has been provided through discovery. Specifically, counts three and sixteen charge that Nguyen, Quach, who has since pled guilty, and other unindicted OPB members committed an attempted assault with a dangerous weapon on November 23, 2000 in Falls Church, Virginia. The government proffers that on this date Nguyen, Quach, and others traveled to Virginia Beach to kill an individual they believed had killed a friend, but that because they could not find that individual, they instead engaged in a confrontation with a group of black males in a parking lot which ended when Nguyen and another OPB member brandished their guns. Counts four and seventeen charge that Le committed an assault with a dangerous weapon on March 26, 2001 in Falls Church, Virginia which, according to the government, occurred when Le brandished a gun and threatened to shoot a rival gang member during a fight between OPB and a rival gang at the Cafe Dang. And counts seven and twenty-three charge that Le and Quach committed an assault with a dangerous weapon in Springfield, Virginia when, according to the government, Le, while traveling in a car with Quach in search of rival gang members, brandished a gun and threatened to kill several members of a rival gang in the parking lot of the Great Wall Restaurant.

Count twelve, the only count that charges a violation of Virginia's malicious or unlawful wounding statute, Va. Code § 18.2-51, alleges that Le committed an assault with a dangerous weapon on May 13, 2001 in Falls Church, Virginia. According to the government, this assault arose from the events at the Majestic Restaurant, during which Le shot and wounded Chung Nguyen, in addition to shooting and killing two other persons.

Defendants seek dismissal of these seven counts of the Indictment on the ground that the elements of Virginia's malicious or unlawful wounding statute, Va. Code § 18.2-51, and brandishing statute, Va. Code § 18.2-282, the state laws that the charged assaults allegedly violated, do not match — element-by-element — with the elements of assault with a dangerous weapon under federal law. Thus, the task here is to determine first, whether it is necessary, as defendants contend, that the elements of the state statutes allegedly violated match — element-by-element — with the elements of assault with a dangerous weapon under federal law and second, whether the elements of the state statutes are sufficiently similar to the elements of assault with a dangerous weapon such that the Indictment's allegations pass muster under § 1959.

II.

Section 1959 provides for the punishment of any individual who "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" for the purpose of entering, maintaining, or increasing his position in a criminal enterprise. 18 U.S.C. § 1959 (emphasis added). Thus, to establish a § 1959 offense the following five elements must be established beyond a reasonable doubt:

(1) that the organization is a RICO enterprise;

(2) that the enterprise was engaged in racketeering activity as defined in RICO;

(3) that the defendant had a position in that enterprise;

(4) that the defendant committed the alleged crime of violence in violation of federal or state law; and

(5) that the defendant's general purpose in so doing was to maintain or increase his position in the enterprise.

There is no allegation in the challenged counts of the Indictment that the alleged violent crime violated a federal law. Instead, the Indictment charges that defendants committed or attempted to commit assaults with a dangerous weapon in violation of Va. Code § 18.2-51, which prohibits malicious or unlawful wounding, or Va. Code § 18.2-282, which prohibits brandishing a firearm. Defendants, therefore, seek dismissal of the challenged counts on the ground that the elements of these state offenses do not precisely match the elements of assault with a dangerous weapon under federal law.

To begin with, it is clear that it is not necessary that the state law alleged to prohibit an assault with a dangerous weapon under § 1959 cany that precise label. In other words, where, as here, an indictment alleges a § 1959 violation based on an assault with a dangerous weapon in violation of Virginia law, it is not necessary that Virginia law include an offense with precisely that label or title. Were the law to require such an identity of label or title, the applicability of § 1959 would be subject to the drafting whims of fifty state legislatures, a result plainly not intended by Congress. Rather, it seems clear that Congress, not wishing to unnecessarily create new crimes, sought to craft § 1959 so that it reached the generic conduct described therein, whatever label a particular state might use to criminalize that conduct. In other words, it is clear that Congress intended to include within the scope of § 1959, generic conduct amounting to an assault with a dangerous weapon, in violation of state law regardless of what label a state may attach to that conduct.

This result finds firm support in the cases. Although the Supreme Court has not addressed this point with respect to § 1959, it has on three occasions reached this result under other federal statutes that, like § 1959, require that certain genetically-defined conduct constitutes a violation of state law. The Supreme Court first reached this conclusion in United States v. Nardello, 393 U.S. 286 (1969). There, the Supreme Court held that a defendant may be found to have violated the Travel Act, 18 U.S.C. § 1952, which prohibits "extortion . . . in violation of the laws of the State in which committed or of the United States," provided the conduct prohibited by state law comes within the generic definition of extortion, even if the law does not label the crime "extortion." See Nardello, 393 U.S. at 293-95 ("We therefore conclude that the inquiry is not the manner in which States classify their criminal prohibitions but whether the particular State involved prohibits the extortionate activity charged."). Thus, the defendant in Nardello could be found liable under the Travel Act for violating a Pennsylvania statute prohibiting blackmail because that offense fell within the generic definition of extortion, even though the Pennsylvania statute did not label the crime as extortion. Id. at 295. To conclude otherwise, the Supreme Court correctly reasoned, would give controlling effect to minor differences in state offense labeling. Id. at 294.

Next, the Supreme Court relied on similar reasoning in Taylor v. United States, 495 U.S. 575 (1990), in concluding that "in including `burglary' as a violent crime in 18 U.S.C. § 924(e)'s sentencing enhancement provision for felons' possessing firearms, Congress meant `burglary' in `the generic sense in which the term is now used in the criminal codes of most States,'" such that the defendant's sentence was properly enhanced based on a previous Missouri conviction for second-degree burglary. See Scheidler v. National Organization for Women, Inc., et al, 537 U.S. 393, 410 (2003) (citing Taylor, 495 U.S. at 598). And, most recently, in Scheidler v. National Organization for Women, Inc., et al, the Supreme Court found that liability for extortion under RICO, 18 U.S.C. § 1961(1), which prohibits "any act or threat involving . . . extortion . . . which is chargeable under State law," did not depend on conduct that violated a state statute expressly prohibiting "extortion," but instead need only violate a statute "capable of being generically classified as extortionate." Id. at 409.

Although the Supreme Court has not specifically addressed this issue with respect to § 1959, circuit authority interpreting Nardello, Taylor, and Scheidler in the context of § 1959 uniformly holds that § 1959 requires that a defendant need only be shown to have committed violent conduct in violation of a state law, regardless of how the state labels the crime. Thus, the Indictment in this instance need not be dismissed simply because the state statutes defendants allegedly violated — Va. Code §§ 18.2-51 and 18.2-282 — do not expressly prohibit "assault with a dangerous weapon." Indeed, to conclude otherwise would lead to the nonsensical result that a defendant who committed a generic assault with a dangerous weapon in aid of racketeering in a state that had passed a statute explicitly prohibiting "assault with a dangerous weapon" could be indicted and convicted under § 1959, whereas a defendant committing the same act in aid of racketeering activity in a state that used a different label to criminalize "assault with a dangerous weapon" would escape § 1959 liability.

While it is clear that a § 1959 charge based on an assault with a dangerous weapon under state law does not depend on the label state law attaches to this generic conduct, it remains to be determined whether the Virginia statutes cited in the Indictment cover conduct that falls within the scope of a generic assault with a dangerous weapon. Defendants contend that they do not. And in support of this contention, defendants point to differences between the elements of the state offenses and the elements of assault with a dangerous weapon under federal law. For instance, defendants contend that an element of the crime of assault with a dangerous weapon — the use of a dangerous weapon — is not an element of either malicious or unlawful wounding or brandishing. This and other differences, defendants argue, compel the conclusion that the challenged counts of the Indictment do not allege each of the elements of brandishing or malicious wounding under Virginia law and thus are insufficient and must be dismissed. See Hamling, 418 U.S. at 117 (holding that an indictment that fails to allege each essential element of the offense is insufficient and must be dismissed); Daniels, 973 F.2d at 274 (same).

Yet, defendants' argument is flawed in two distinct respects. First, while it is true that a defendant cannot be found to have violated § 1959 unless the alleged violent conduct violated a state law, it is not proper in making this determination to rely exclusively on a comparison between the elements of the state statute and the elements of the violent crime under federal law. Instead, the proper comparison is between the elements of the state statute and the elements of the violent crime, as it is generically defined. Second, in making this comparison, a court need not find that the elements are precisely the same, but instead must determine whether the state offense, regardless of how it is labeled, "corresponds in substantial part" to the violent conduct. Taylor, 495 U.S. at 599; see also Rose v. Bartle, 871 F.2d 331, 362 (3d Cir. 1989). If it does, the defendant may be indicted and convicted under § 1959. See Taylor, 495 U.S. at 599-600. Thus, in this instance, the last remaining task is to determine whether the elements of malicious or unlawful wounding and brandishing a firearm "correspond in substantial part" to assault with a dangerous weapon, as generically defined. Taylor, 495 U.S. at 599. If so, the challenged counts of the Indictment are sufficient and defendants' motion to dismiss must be denied.

A comparison of the elements of Va Code §§ 18.2-51 and 18.2-282 makes clear that these elements correspond in substantial part to the elements of a generic assault with a dangerous weapon. The elements of a malicious or unlawful wounding under § 18.2-51 — (i) a malicious or unlawful shot, cut, wound, or other bodily injury to any person (2) with the intent to maim, disfigure, disable or kill that person — are adequately similar to the elements of assault with a dangerous weapon under 18 U.S.C. § 113(c) as well as the elements of aggravated assault as set forth in Model Penal Code § 211.1(2). See Sturgis, 48 F.3d at 786; Model Penal Code § 211.1(2) (2001) (providing that a person is guilty of "aggravated assault" if he "(a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon"). The same conclusion obtains with regard to the elements of brandishing under § 18.2-282, which are, (i) the pointing, holding, or brandishing of a firearm, or other object similar in appearance (ii) in such manner as reasonably to induce fear in the mind of the victim. This conclusion is further supported by the similarity between these elements and the elements of assault as defined in the majority of states and at common law. See Commonwealth v. Alexander, 531 S.E.2d 567, 568 (Va. 2000) ("The threat to use deadly force by brandishing a deadly weapon has long been considered an assault.") (citing Harper v. Commonwealth, 196 Va. 723, 733 (1955)). That the elements of the state offenses do not precisely match the elements of an assault with a dangerous weapon does not compel a different result. See Taylor, 495 U.S. at 599 (stating that the elements need only "correspond in substantial part").

In sum, because the elements of malicious or unlawful wounding and brandishing correspond in substantial part to the elements of assault with a dangerous weapon, as generically defined, the challenged counts of the Indictment are sufficient and defendants' motion to dismiss must be denied. An appropriate order has issued.