891 F.3d 82
2d Cir.2018Background
- On June 10, 2015, Rose and a codefendant induced a victim to withdraw cash from a Citibank ATM under threat; the victim handed $900 to Rose, who then released him.
- Rose pleaded guilty to one count of Hobbs Act robbery after a Rule 11 colloquy; the government proffered that the ATM withdrawal was from a bank doing business in interstate commerce.
- After plea and before sentencing, Rose (pro se) moved to withdraw his guilty plea alleging coercion and that the conduct lacked the necessary effect on interstate commerce for Hobbs Act jurisdiction.
- The district court held an evidentiary hearing, credited Rose’s original counsel that the plea was knowing and voluntary, denied the motion, and sentenced Rose to 60 months (below Guidelines).
- On appeal Rose abandoned his voluntariness claim and argued legal innocence: that forcing an ATM withdrawal and stealing the cash did not sufficiently affect interstate commerce to sustain a Hobbs Act conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of interstate-commerce nexus for Hobbs Act jurisdiction | Gov't: a de minimis effect on interstate commerce suffices; funds were held by Citibank (an interstate bank) | Rose: victim withdrew money; bank no longer had custody; robbery affected only the individual, not interstate commerce | Held: Affirmed. Targeting funds held by Citibank satisfied the Hobbs Act's de minimis interstate-commerce requirement |
| Whether forced ATM withdrawal converts the taking into robbery of a bank’s assets | Gov't: deposited funds are bank property; robbery targeted Citibank's assets via the account | Rose: citing Burton, contends bank lost custody on withdrawal so robbery was solely against the individual | Held: Burton's reasoning rejected for Hobbs Act purposes; de minimis effect on commerce is met despite momentary absence of bank custody |
| Whether Rose validly preserved legal-innocence challenge | Gov't: plea colloquy and hearing supported voluntariness; no valid basis to withdraw plea | Rose: asserted legal innocence on appeal (did not contest voluntariness) | Held: Because the interstate-commerce element is satisfied, Rose failed to establish legal innocence and district court did not err |
| Standard of review for new legal-innocence claim raised on appeal | N/A (procedural) | Rose invoked challenge for first time on appeal | Held: Reviewed for plain error; no plain error found |
Key Cases Cited
- United States v. Parkes, 497 F.3d 220 (2d Cir.) (Hobbs Act requires only de minimis effect on interstate commerce)
- United States v. Silverio, 335 F.3d 183 (2d Cir.) (interference with interstate commerce, however slight, can satisfy Hobbs Act)
- United States v. Perrotta, 313 F.3d 33 (2d Cir.) (framework for linking robbery of an individual to interstate commerce)
- United States v. Wilkerson, 361 F.3d 717 (2d Cir.) (enumerating circumstances where robbery of an individual satisfies Hobbs Act)
- United States v. Burton, 425 F.3d 1008 (5th Cir.) (concluded forced ATM withdrawal did not sustain federal bank-robbery charge; court declined to follow that aspect)
- Shaw v. United States, 137 S. Ct. 462 (2016) (when a customer deposits funds, the bank ordinarily becomes owner of those funds)
- United States v. Rivernider, 828 F.3d 91 (2d Cir.) (standard for withdrawing a guilty plea)