*1 Nо. 00-10569. Before WIENER and EMILIO M. GARZA, Judges.* Circuit Appeals, United States Court of petition IT IS ORDERED for Fifth Circuit.
rehearing is DENIED. Oct. petitioner suggests The that the Court (argued), Michael R. Dreeben Dept, U.S. by ruling sponte wrong- erred sun that her Justice, Felton, Kathleen A. Dept, U.S. ful brought death cause of action under 42 Justice, Div., Appellate Criminal Sec- § U.S.C. 1983 could not stand because she tion, DC, Washington, Delonia Anita Wat- prove failed to that the defendants caused son, Worth, TX, Fort for Plaintiff-Appel- death. decedent’s We note defendants did address the causation issue lee. both at trial and in their briefs. Carmon Stephen (argued), Baer U. Baer & Asso- Lubrizol, (5th Cir.1994) 17 F.3d ciates, Dallas, TX, Defendant-Appel- for (this liberally Court construes briefs lant. review). determining presented issues for
Moreover, may affirm we the district any grounds
court’s decision on supported Okoye the record. v. Univ. Tex. Ctr., Houston Health Sci. KING, GARWOOD, Before Judge, Chief (5th Cir.2001). petitioner also JOLLY, HIGGINBOTHAM, DAVIS, argues holding that our is flawed because JONES, SMITH, WIENER, explain why does not she was not al- BARKSDALE, GARZA, EMILIO M. lowed to pain recover for her own DeMOSS, BENAVIDES, STEWART, suffering. petitioner correct PARKER, DENNIS, CLEMENT, one whose own constitutional rights have been violated actions at directed anoth- Judges. Circuit * challenge ap- Judge 2. Nor does the original constitutional Parker was a member of the pear to have merit. Prisoners are anot sus- panel but retired from the court on November class, pect quasi-suspect Mississip- and the 2002, and, participate therefore did pi Supreme already Court has identified a petition rehearing. being This order is l-46-9(l)(m) legitimate § state interest for by quorum pursuant entered of this court that more than meets the burden of rationali- 46(d). 28 U.S.C. Section ty Sparks, review. See 701 So.2d (finding protects that the statute the state's ability competent prison personnel). to hire
377
per
court
curiam.
affirmed
United States
PER CURIAM:
(5th
McFarland,
Cir.2001).
v.
Texas, in and December 1998.1 November robbery was of one of the acquitted He McFarland, appeals con- Jr. his James 924(c)(1) counts and related section of its robbery viction counts of of local of four on all re- count.2 convicted He was Texas, Worth, in Fort convenience stores Act maining The four Hobbs counts. (the § violation of 18 U.S.C. (counts оne, five, sev- counts conviction Act) corresponding counts of us- and four nine) alleged that McFarland en and each during a firearm and ing carrying and obstruct, willfully de- knowingly “did and relation to those robberies violation lay, and interstate commerce affect 924(c)(1). challenges § He his 18 U.S.C. obstruct, delay and affect attempt did counts, as- commerce, on the Hobbs robbery, conviction by to wit: serting that the evidence insufficient proper- and obtain the defendant did take constitutionally Currency, namely or statuto- ty, establish States ... rily presence to interstate commerce required person nexus employee jury charge respecting employee], this of store [name and that store], against panel A ... and address [name defective. element was robbery Attorney adopted the offenses States been arrested for the rob- McFarland had prosecution. federal police in December beries Fort Worth late county, in the Tarrant and incarcerated acquittal were count three 2. The counts of Texas, later into jail. He was transferred (robbery Haynie's 1998 of on November custody its when the state dismissed federal 924(c)(1) Inc.) (the § related four count charges against robbeiy him and the United count). means of actual and his will threatened evidence of the four stores made force, violence, injury and fear of to his shipments points pur- sales or person.”3 Texas, or, chasers outside of indeed made any sales other than at premises the store involved, taken, the amounts The stores *3 purchasers to retail resident in Fort register, in each case from the cash and any Worth. There is no evidence that of the four the relevant dates robberies (or near) any the stores was located at following: were transportation facility, such as a bus or one, robbery Count November airport, train station or or on an interstate “Buy-Low” convenience store which highway. Buy-Low, Three of the stores — $100, taken; was “about close $100” Stop Gateway Liquor— Jeff and Discount five, robbery December Count 1998 of apparently stand-alone, single were loca- Liquor Gateway Discount store in which tion, concerns, unaffiliated, by common [$1,500] $2,000” around 15 “somewhere otherwise, ownership any or with other taken; cash was Quickway Shopping concern. The conve- seven, robbery Count December nience apparently store was one of an un- 1998, Quickway Shopping convenience named, stated number of such stores so store which “about cash was tak- $50” Gumfory, and William owner of the store en;4 (or robbed, all) may have owned some nine, 21, 1998, robbery Count December Quickway Shopping the other convenience store, Stop Jeff in which convenience $145 any stores.5 There is no evidence cash was taken. (or the four robbed any Quickway stores store) facilities, Shopping any proper- four stores a had Each of these was retail store, ty, employees, being three retail convenience stores bank accounts or activities Worth, liquor owned, and one a retail store. There is no outside of Fort or was indicated, Although, Gumfory, as these counts each Ham who at the time of trial in "attempt,” jury charge March 2000 had been reference retired for an unstated makes time, length of testified he was not at the store "attempt,” no reference whatever and robbery when the occurred. When asked jury were to the these counts submitted en- prosecution you аpproximate- "can tell us tirely completed on a offense basis. There ly your day how much store was robbed the count, conspiracy allegation was no or each working” replied Rosa Candanosa was he "I jury Hobbs Act count was submitted to the recall, really say don’t but I would offense, separate jury a and distinct and the neighborhood precision $100.” No further charged separate charged was "A crime is supplied any explanation was nor is there each count of the indictment. Each count neighbor- how or on what basis "in the pertaining and the evidence to it should be $100” hood of was arrived at. separately.” considered The defendant acted robberies, although alone in each of the there respect sparse, evidence 5.The in this con- indicating is evidence that in at least one of sisting only following. William Gumfo- just them he was driven from the site after the ry replied prosecu- "That is correct” to the robbery by girlfriend. his wife or There is no question tor’s "Was one of the convenience (or suggestion that the defendant the wife or you Quickway stores that owned Convenience girlfriend) was other than a resident of Worth, Fort shopping Bailey Store on 245 Fort Worth, any pur- or that he had intention or Texas” store [The robbed on December 1998], And, Weatherford, Texas, pose accomplish anything do or other than wholesal- did, Quickway supplied er testified that "we simply namely Con- what he take cash from group,” supplied venience Stores as that he each store robbed. Street, Quickway Bailey at store had testimony $50” 4. "About is the of Rosa Can- long Gumfory, done business with Mr. and danosa, duty employee the store "yes” prosecutor’s question answered to the robbery place when the took who took the stores, "rely Gumfory’s did he on Mr. at least money register frame, from the cash handed it to in the December '98 time and stores owner, that, conducting your the defendant. The then store Wil- like business?” wholesalers, required by one not Fort Texas Texas part, by or in whole resident. Worth of these only law. The one three wholesal “I pay ers who testified stated for that stores sold items Each of the four retail beforehand, product dis of which evidence its mine to of merchandise some originally were manufactured showed Quickway tribute and sell and collect.” As to none of outside of Texas.6 processed Shopping its in purchased merchandise the three convenience stores there Weatherford, ventory Texas, from a whole per- fraction indicating evidence what saler, Company, Hartnett which in turn was of or allocable to centage their sales purchased had items including Tropicana manufactured or items which had been Florida, juices Wrigley’s Gum Texas, out or what was the processed Chicago, dog Gatorade from and Purina *4 of such or total dollar' amount either sales goods The food from Oklahoma. Hartnett particular store. As to of all sales Company to acquires come a warehouse store, Gateway Liquor one of Discount them retail Texas. It then sells to local supplied who the three Texas wholesalers (and Kansas). stores to some stores in ninety-five percent that of what it testified Shopping money also or Quickway sold and that generally distributed he both from acquired company from ders which it particular store “came outside a very and that small state Texas” Minnesota, Gumfory “any and Mr. testified liquor products amount of or wine was money paid sold we same orders we off the only The evidence as produced Texas. day” probably and estimated “we sold Liquor Gateway Discount Store’s to the a month.” It is not clear the 300 whether purchases volume of sales and was dollar figure to the total of indi refers number $23,084.73 $26,640.69 and that it had sales money vidual orders or face the total from 17 to November purchases November money per amount sold orders $34,910.03 and and sales it month. Nor is clear whether the refer $36,547.67 purchases from December Gumfory’s Quickway Shop is ence to all that through December and ping particular or the one robbed of stores people start liquor in the retail business 11, 1998. on December $50 and buying Thanksgiving after the busiest year through time of from October De- The occurred owners when robberies cember. Stop Gateway and Dis- Buy-Low, Jeff that There was no evidence either per- Liquor count stores testified that Jeff Store Buy-Low acquired store or the centage gross proceeds sales used of their any inventory their from outside sources per- inventory seventy-five restock Texas, example, for to ac opposed, Gateway Stop and seven- cent for Jeff it from In quiring a Texas wholesaler. Gateway. own- ty percent The former deed, there evidence whatever as was no Quickway Shopping that his er of testified how or from or where on what whom approximately sales was profit margin on acquired either of those two stores basis “if we twenty-five percent, meaning that pur inventory, except they their month, $20,000 have to sold we would only chased it. evidence this re The $15,000 replace These buy a month to it.” Gateway Liquor as to Discount spect brief, conclusory gave purchased inventory it three store owners each its snacks, Jeff dog and Purina food. The included Anacin 6. Such out-of-state items the follow- Juice, Orange Stop cigarettes, Tropicana ing. Buy-Low cigarettes, The store sold sold Anacin, beer, dog food. Quickway Coors and Purina Coors beer Gatorade. Gateway Liquor vari- cigarettes, Tropicana Discount store sold Shopping store sold Juice, beer, Gatorade, liquors produced outside Texas. Orange Nabisco ous Coors owner, testimony robbery money from the Liquor count when asked “after the problems $1,500 $2,000 respecting, store would cause you by was taken from inventory purchases.7 hurt or hinder defendant, your prob- did cause business However, any was no evidence that there lems,” responded less, actually purchase of the stores did kept “It ame little stretched. In busi- (or delay any purchase, as a result of every day ness ringing, sales are but we charged robbery following) have to overstretch some bills and tell in that questions respect store. No were the distributor that we won’t be able to Buy-Low Stop asked of the or Jeff own- pay you today, you pay but we’ll ers, and no one identified as seller or days.” next two or three Likewise, testified.8 supplier to either nei- Apart just from the quoted above testimo- Gateway Liquor ther the Discount owner ny Gateway owner, of the Liquor Discount (whose purchases following sales and rose any there was no evidence that robbery) nor the former Quickway robberies resulted of the victim owner, wholesalers, Shopping nor their slightly stores even delaying any payment ever testified that as a result of the party as a result of charged charged robbery actually the retail store robberies. delayed any purchases, reduсed or *5 McFarland timely made and renewed testimony suggests their that they did for judgment acquittal motions on the not.9 Quickway Shopping The former alia, grounds, inter required nex- owner, you when asked “were not able to us to interstate commerce was not shown buy anything you normally buy would be- any as to of the Hobbs Act counts. These there,” responded cause that wasn’t $100 motions were overruled. it, The trial court’s buy “we to would be able but we would jury instructed, charge have to take the from the with reference to bank or $100 counts, that, keep somewhere to our balances the Hobbs Act among other proportion.”10 Gateway things: correct Dis- store, Buy-Low "yes” 7. The owner answered when he had elected to close his that "six or money you asked "when is stolen from like charged seven months” after the November that, you problems rebuying does it cause in robbery, robbery,” "we had another inventory.'' Stop The Jeff owner answered reasons, and that he closed his store for two "yes” your when asked "when store is robbed "first of all” because his landlord sold the money, your ability of its does that hurt to re- premises store and “number two” because buy, repurchase your merchandise to sell in being "I'm tired of” robbed. owner, Quickway Shopping store.” The your money, asked "if store is robbed of its 9. We supply- also observe that the wholesaler your ability replenish your does that hinder to ing Quickway Shopping, when asked "how do stock,” "well, naturally, responded we have you know a store [customer] has been money operate Gateway less with.” The responded they robbed” "because will call us owner, Liquor your Discount asked "if store delivery they and need an extra because don't money you is robbed of don’t have that any product have in their store.” There is no money, your ability replenish your hurts respecting evidence that this ever occurred stock,” replied "yes. It does hurt us.” Com- any of the four stores. general testimony parable given was likewise wholesaler, liquor the wholesaler who owner, 10. approximately when asked supplied Quickway Shopping and a Coors dis- how robbery, much was taken in the had tributor; gave general these wholesalers also recall, really stated "I say don’t but I would in testimony pay that if their customers didn't neighborhood $ pres- of 100.” He was not they pay suppliers them couldn't robbery ent when the employ- occurred. The they purchased products. whom had their duty ee $50” testified that "about Buy-Low
8. The owner testified that at taken. There is no some other evidence as to the (see unspecified prior to time the March 2000 trial supra). amount taken note
3B1 Act, history I. -The its effect that there you “If decide interpretation commerce, Court then interstate all of [sic] satisfy this element. enough that is Act, § pro- The Hobbs 18 U.S.C. showing minimal. A can be The effect part: vides in relevant regularly buys goods a business “(a) any way degree or Whoever an inference of state allows from out obstructs, delays, or affects commerce pur- may a future robbery impair or the movement of article or com- reason- you beyond .... If find chase commerce, robbery or modity ex- conduct that the defendant’s do, able doubt attempts conspires tortion or or so to commerce, you then physical commits or threatens vio- affected or any person property has lence to or fur- government conclude plan purpose of a or inter- therance do proof to the its burden met anything violation of this section shall the offense.” commerce element of state imprisoned be fined under this title or “any” in objected to McFarland the word both, twenty years,, than more objected quoted, the first sentence above , (b) As used this section— mini- effect can be the sentence “the. mal,” the word to the failure to include (3) The term ‘commerce’ means re- “substantially,” had, previously as he within commerce the District Co- “inter- quested,. “conduct” and between lumbia, any Territory or Possession quoted in the last above state commerce” States; all of the United objections over- These were all sentence. State, any point in a Territo- between ruled. Possession, ry, or the District Co- *6 thereof; any point lumbia and outside
Discussion points within all commerce between through place same State out- noted, principal presented issue As State; all other com- side such and extends, may Hobbs Act or is whether the over the United States merce which limitations consistent with the applied be jurisdiction.”11 has by Lo reflected Clause Commerce 3, Morrison, 1946, originally July pez to these It was enacted and robberies 420,12 537, 486, as an Pub.L. 60 Stat. ch. local retail stores. fear, violence, force, para- or or or threatened 11. of the statute consists The balance (2) (b), (1) reading right.” and of subsection under color of official graphs "(c) (c), provides: which This follows: and subsection repeal, modi shall not construed section "(1) 'robbery' the unlaw- The term means 15, 52, fy affect section 17 of Title sections or obtaining property taking personal ful or 101-115, or sections 151-166 of Title 29 151— person presence or in of an- from 45.” will, 188 Title other, by actual against means of his force, violence, fear of or or or threatened and codification of In the 1948 revision future, person or injury, immediate to his 18, formal, changes stylistic purely were Title custody' or properly, property or in his or reordering (largely Hobbs Act made to the person property of a possession, or the para consolidating and and its subsections any- family or of or member his relative 772, 25, 1948, 645, c. graphs). June Pub.L. taking company at his the time of one in words 793-794. 1994 the imme 62 Stat. In obtaining. (a) following diately in subsection "fined” (2) the ob- The term 'extortion' means $10,000" another, changed from more than were “not taining property with his from 13, 1994, consent, Sept. Pub.L. by wrongful of actual to "under title.” induced use 382 generally to the similar Anti- payments
amendment
to exact
employers
for im-
(the
18,
Racketeering Act of
1934
June
posed,
superfluous
unwanted and
ser-
Act),
376,
1934
Pub.L.
48 Stat. 979-80.13 vices”.).14
by
The Hobbs Act was occasioned
(as
2248,
Report
Senate
on S.
which
807,
holding in
States v.
United
Local
amended)
Act,
became the 1934
states that
642,
521,
U.S.
In Jones United obstruct (2000), ], delay[ 146 L.Ed.2d or the move- affect[ ] statute, arson construed the federal Court ment of article or in com- commodity 844(i), extending § as not Thus, 18 U.S.C. merce.” driven noted the above out-of-state arson of home insured Culbert, language in con- Stirone we lender, insurer, by an out-of-state financed clude to determine whether out-of-state, gas and furnished with applies Hobbs Act these offenses we *13 avoiding part principle the relying limits of must examine the the commerce statutory under which construction as articulated the ques- constitutional and “‘grave doubtful Lopez Court in and Morrison. ” arise,’ stating “[g]iven the con- and tions by Lopez, fore it is brought to the cerns Lopez II. to this applied and Morrison the constitutional to avoid appropriate prosecution Hobbs Act that were to read arise we question would Overview; 844(i) A. Commerce Power Cate- ‘traditionally local § to render the petitioner gories conduct’ in which Jones criminal ‘a matter for federal enforce- engaged In Lopez the Court “identified three ” According- ment.’ Jones at activity categories Congress broad that Jones, read the ly, in the court words may regulate power,” under its commerce 844(i) modifying as in” “used section namely: ... com- “any activity affecting interstate “First, regulate Congress may the use of merce,” owner-occupied resi- so that “an (cit- the channels of interstate commerce” any pur- commercial dence not used for alia, ing, Darby, inter United States in’ property not ‘used pose qualify does as 100, 657, 451 аt 85 L.Ed. U.S. activity” commerce-affecting commerce or (1941), sustaining prohibiting statute 844(i). Id. meaning the of section within goods shipment in interstate commerce However, the Hobbs 1910-11. by em- produced for interstate commerce comparable special lan- Act contains no ployees wages and hours do not whose analogous limiting upon which an guage requirements of the Fair conform to the It not can be focused. does construction Act; statute not invalid Labor Standards at all differentiate between robberies nothing to do element “[n]othing suggests deficiency with the of the statute had on the face sixth, id.; lenity racketeering,” rule of congressional coverage to the to limit its intent " ” only applies ‘when we statutory apply, did not as it 'racketeering' the relevant ... and ” meaning,' are uncertain about the statute's "do themselves restrictive words not lend seventh, 1116; 1113; second, well id. at and was stat- interpretation,” id. &t the terms, robbery prohibited and carefully no aware state laws but makes that ute defines connec- racketeering Id. at 1117. In the latter less extortion. "reference —much tion, third, word,” 1114; history legislative we that the id. at observe definition of the clearly made making racketeering "might cre- indicates statements an element robbery regarding prohibition of state law problems, in view of ate serious constitutional answering the racketeering were directed at extortion the absence of definition statute,” fourth, id.; was legislative proposed Hobbs Act his- criticism that infringed rights of labor "Congress anti tory labor of the 1934 Act reflects (which major respecting issue racketeering was the simply did to make not intend Act), being proposed stat- of an the answer separate, unstated element Anti-Racke- 1115; fifth, violation,” anything already un- prohibit not teering ute did not id. at lawful; way related to simply no correct the statements purpose Hobbs Act’s com- required interstate deficiency” the nature of the "perceived 1934 Act case) (reflected by "that merce nexus. Local 807 if regulate power, even its motive was to local noting merce 922(q) that section wages subject clearly otherwise to commerce fell within neither and that “if § power). 922(q) sustained, is to be it must be category under the third a regulation “Second, Congress empowered reg- activity that substantially affects inter- protect ulate and the instrumentalities of state commerce.” Id. at 1630. It then commerce, persons things went on to hold that the statute likewise commerce, in interstate though even could not be sustained under the third only threat come from intrastate ac- “ category, rejecting the argu- Government’s (listing examples tivities” ‘destruction ment “possession of a firearm in a aircraft,’” of an ‘“thefts from interstate ” local school substantially zone does indeed shipments,’ and R. Southern Co. v. Unit- affect interstate commerce.” Id. at 1632. ed 56 L.Ed. years Some five (1911), later in Morrison the upholding Safety Appliance Act *14 Lopez’s Court reconfirmed Commerce equipment requirements applied as to cars analysis Clause and holding as well as its moving interstate carrier on interstate “ articulation description of the ‘three railroad though particular line even cars broad categories activity traffic). carrying only were intrastate ” may regulate under its power.’ commerce Third, “Congress’ authority commerce Morrison at 1749. Morrison held uncon- power includes the regulate those activi- stitutional, beyond as Congress’s power having ties a substantial relation to inter- Clause, under the Commerce 42 U.S.C. state commerce ... i.e. those activities 13981, § portion civil action substantially affect interstate com- Violence Against Women Act of 1994.23 .... merce Morrison “[petitioners observes that do Within this final category, admittedly, not contend that these cases fall within our case law has not been clear whether an either of categories the first two of Com- activity must ‘substantially ‘affect’ or af- merce Clause regulation. They seek to fect’ interstate order to be § sustain regulation 13981 as a activity Congress’ within regulate it un- that substantially affects interstate com- der the Commerce Clause.... con- We merce .... agree [w]e this is the clude, consistent great weight with the of proper inquiry.” at Id. 1749. The Court law, our case that the proper requires test held that section 13981 did not meet the an analysis of regulated whether the activi- requirements of Lopez category, the third ty ‘substantially affects’ interstate com- stating “petitioners’ reasoning would allow merce.” United Lopez, States v. 115 S.Ct. Congress regulate any crime long so (1995). 1624 at 1629-30 nationwide, aggregated impact of that
Lopez
unconstitutional,
held
beyond
crime has substantial effects on employ-
Congress’s power
ment,
transit,
under
the Commerce
production,
consumption,”
Clause, the
1752-53,
Gun-Free School Zones Act of Morrison at
contrary to the con-
(1988 ed.,
§
18
922(q)
U.S.C.
Supp.
stitutionally required “distinction between
V).
“quickly
It
disposed of’ the first and what
truly
national
truly
and what is
categories
second
congressional
com-
local.” Id. at 1754.24
§
Morrison
beyond
also held
Con- 24. Unlike
Lopez, Congress
the situation in
gress's power
enacting
§
§
specifically
under
pow-
5 of the Fourteenth
invoked its
ers under section 8 of
seq.
Amendment.
Article I of the Consti-
Id.
1755 et
tution,
Morrison at
and made numerous
category
scuffling
park-
dren
business’s
Lopez
one.
such
B.
lot,
ing
and would also blur the distinction
the channels
category
This
—“use
categories
between
two and three. More-
clearly inapplica-
commerce”—is
interstate
over,
we note
Seventh Circuit’s obser-
offenses,
the Gov-
present
ble to the
vation,
rejecting the
at-
Government’s
otherwise.
does
contend
ernment
fit a
tempts
prosecution
Hobbs Act
into
category two.
Lopez
C.
two,
Act,
Lopez category
“[t]he
however,
Lopez category
falls within
that these of-
contends
The Government
three,” at least where the conviction is
be-
Lopez category
within
two
fenses fall
Government,
cause,
sought
simply
to be
on the theo-
according to
sustained
were
engaged
ry
engaged
stores
that the victim
in inter-
victim
commerce,
relying on
States
state commerce. See
v. Pe-
United States
Robertson,
(7th Cir.2001).26
U.S.
terson,
(1995),
that therefore
L.Ed.2d
agree
Nor do we
that the Government’s
com-
effect on interstate
no “substantial”
supported by
argument
Robertson.
had to be shown.
merce
There the defendant was convicted of “var-
reasons,
reject the Gov-
For several
we
violating
ious narcotics offenses” and of
Lopez
contention that these are
ernment’s
1962(a) (RICO)
§
“by investing the
U.S.C.
with,
begin
To
category two offenses.
*15
those
proceeds of
unlawful activities
to
engaged
a
simply because
business
any
in,
‘acquisition of
interest
or the estab-
in
does
any extent
interstate commerce
of,
operation
any enterprise
lishment or
any
bring regulation
alone suffice
not
in,
engaged
the activities of
which is
or
category
involving
all conduct
it within
and
affect,
foreign
which
interstаte or
com-
category applies
That
to “instrumen-
two.
”
Circuit,
merce.’
Id. at 1732. The Ninth
commerce,”
interstate
such
talities of
decision,
pre-Lopez
in a
affirmed the nar-
line,
aircraft” or a railroad
and
“an
convictions but
the RICO
cotics
reversed
things
com-
or
in interstate
“persons
conviction, holding that the RICO enter-
merce,” such as
from interstate
“thefts
Alaskan
mine—was not
prise
gold
Plainly,
store is
shipments.”
a local retail
—an
an inciden-
to have “had more than
shown
any
The Gov-
analogous
of those.25
and
tal effect on interstate commerce”
argument
vastly expand
ernment’s
would
1962(a)’s
meet
“the
hence did not
section
two,
Lopez’s category
extending federal
affect,
...
which
interstate
activities of
se,
per
a
basis to
jurisdiction
categorical
(without
requirement
address-
commerce”
shoplift-
range
of matters such as
broad
...
com-
ing
“engaged
in
interstate
candy
any
bar
from
business
ing of
1962(a)).
chil-
United
engaged
prong
in interstate commerce or
merce”
section
gen-
actually moving
in
ñndings regarding
impact
or about to move
adverse
merits
(reflected
interstate com-
der motivated violence on
“or the
in its
interstate
Id. at 1752.
merce.
any
commodity in
movement of
article or
prong, comparable to the
commerce”
appar
respectfully disagree
25. We
with
moving
any
commodity
article
Act's “or
contrary
ently
pan
divided
conclusions of the
in
commerce” lan-
about to move
trade or
Harrington, el in United States v.
plainly
guage)
was
at least the Hobbs
—which
(D.C.Cir.1997),
1469-70
and
category
primary purpose Lopez
two
Act's
—
seemingly
suggestion
States
similar
in United
category.
appropriate
would doubtless
Farmer,
Cir.1996).
(8th
v.
States v. F.3d Robertson is a construction case Cir.1994). purport does not any The Ninth Circuit did not even and to make consti- (or mention, discuss, holding tutional or to recognize address let alone Commerce it) being potentially before Congress’s power constitu- Clause or the limits issue, Court, tional and it Lopez does not mention shortly thereunder. categories or discuss its three of Com- Lopez, the Ninth after reversed Circuit’s power.27 merce count, Clause holding reversal of RICO there gold that the was sufficient evidence mine event, Finally, reject and in we in ... interstate ... com “engaged underlying premise of the Government’s 1962(a). purposes for of section merce” connection, argument in this namely that Robertson, 115 at 1733. It stated in S.Ct. the victim “engaged stores here were in” this connection: commerce as the Robertson Court understood and intended that Robertson, Arizona, in “... who resided phrase. principal Robertson’s illustrations $125,000 payment made cash for is, not, of what “engaged and what is in placer gold mining claims near Fair- [interstate] commerce” are as follows: $100,000 approximately banks. He paid proved “the Government that some ... (in cash) mining equipment sup- for and [equipment supplies] pur were
plies, purchased some of which were transported chased California and Angeles transported Los to Alaska Alaska for operations. use the mine’s for use the mine. Robertson also Building States American Cf. paid expenses hired and seven Industries, Maintenance employees out-of-state travel to Alas- 2150, 2159, L.Ed.2d 177 again ka to work in the mine.... He (1975) (allegation company had employees hired a number out- purchases equipment made local side Alaska to work the mine. *16 supplies merely that were manufactured out of state was insufficient to show that Furthermore, Robertson, the mine’s sole company ‘engaged was in commerce’ $30,000 proprietor, gold, took worth of § within the meaning Clayton of 7 of the output, Act). or 15% of the mine’s total with
him out of the State. As we said in American Building Main- (and not Whether or these activities met tenance, corporation generally a ‘en- not, bring gold whether or mine ’ gaged “in commerce” when it is itself ‘affecting provision within the commerce’ ‘directly engaged production, in the dis- meet) RICO, they would have.to tribution, or acquisition goods requirement substantially affecting in- Id., services in interstate commerce.’ at commerce, they assuredly terstate S.Ct., at 2158.” 1962(a)’s brought § gold mine within ‘any enterprise alternative criterion of In Building American Maintenance the ... engaged foreign in ... interstate or summary judgment prop- Court held ” erly granted janitorial commerce.’ that the Benton ser- .Id. Moreover, clearly apparent terprise being 27. subject Congress’ it is not otherwise Congress's power See, to criminalize an offender’s e.g., under the Commerce Clause. proceeds use of the of his federal narcotics Owens, (5th United States v. in, operate offenses to invest establish or an Cir.1993). enterprise necessarily dependent on the en- California, employees or operations, were facilities outside companies, located vice commerce,” Worth; “engaged [interstate] of Fort nor is there evidence Clayton 7 of the purposes of section for acquired any of them of their Act, stating: inventory merchandise other than from in- companies performed
“The Benton compa- state wholesalers.28 If the Benton portion 90%] [80% substantial “engaged nies in” interstate com- were not enterprises janitorial their services merce, follows, fortiori, necessarily engaged clearly which were themselves that these local retailers were not. and in- products in interstate selling providing in- markets and ternational Lopez category D. three. facilities. But communication terstate conclude that the accordingly We issue localized services simply supplying [in ap- properly of whether the Hobbs Act is corporation engaged to a California] plied these turns on robberies whether satisfy does not application Lopez such meets the test §of 7. requirement ‘in commerce’ three, category proper as to which “the within the engaged ‘in commerce’ To be analysis requires test of whether the 7, corporation § must itself meaning of regulated activity ‘substantially affects’ in- production, directly engaged be distribution, terstate commerce.” Id. acquisition goods in interstate commerce. services any partic- The evidence does not reflect ular, on interstate com- concrete effect compa- the Benton Similarly, although actually from that in fact resulted merce janitorial equipment sup- nies used But evi- any of the four robberies. large part manufactured in outside plies support the conclusions that dence does California, purchase they did not regularly used their the victim stores each suppliers located in directly them to, things, purchase among funds other Rather, those other [citation] inventory which in- from local wholesalers in intrastate products purchased were to) (but limited cluded was not shown locаl distributors.... transactions from out-of-state, manufactured items companies pur- By the time the Benton reduced, tak- by the amounts the robberies janitorial supplies, chased their flow $1,500-2,000), ($50, $100, $145, en of commerce had ceased. See Schechter *17 would, for the rob- funds the stores but U.S., at 542- Corp. v. United (em- thereafter have had avail- Id., bery, otherwise at 2158-59 848.” from) (or omitted). their added; for use in withdrawal footnote able phasis (but businesses, including not respective any that of these Here there is no evidence to) inventory purchasing. for limited use any sales other retail stores made local any shows that reduc- The evidence also premises in Fort Worth than at the store purchases from its tion in a retailer’s entity any person or en- or sales commerce, the funds the would reduce gaged in or had wholesaler interstate (one engaged being in interstate com- Quickway Shopping ping It true that is $50) merce, bringing purposes was robbed of sold some certainly which stores not money purchased from a orders which Lopez category robbery two. of it within given company in But that there Minnesota. Building at 2153 Maintenance American Cf. and notes evidence that amount of these was other is no "negligible” (referring 3 and 4 insignificant absolutely or than —either "insignificant” facilities and use of interstate hold of the store’s total sales—we fraction purchases). interstate Quickway Shop- that this does not constitute reject accordingly argument otherwise thereafter would “We wholesaler (or Congress may regulate in withdraw non-eco- have had available for use (but from) nomic, business, including not violent criminal conduct based al its to) purchase solely aggregate of out-of-state on that conduct’s effect use for limited States v. Adehe on interstate commerce. The Constitu- merchandise. Cf. United Cir.1996) (“To (9th san, requires tion a distinction between what truly truly effect on interstate national and what is lo- establish a de minimis commerce, regulation punishment need not show cal.... the Government actually acts affected of intrastate violence that is not directed that a defendant’s Rather, instrumentalities, channels, juris ... or interstate commerce ‘by proof goods in requirement dictional is satisfied involved interstate commerce ”). probable potential impact’ always province of a or As has been the of the to show that States.” Id. at 1754. suming that all this suffices robbery probably each did individual case, then, question The central in this minimal, attenuated potentially have some prosecution whether this Hobbs Act can be commerce, affect on interstate and indirect aggregation theory. under sustained individually had what it is clear that none question. turn We now as a “substantial” fairly could be described (actual, probable potential). jurisdictional affect E. Hobbs element. in this connection re- The Government Because the Act has an interstate Hobbs principle jurisdictional under “aggregation” lies on the commerce related element determining Lopez in whether the affect on and the statutes at issue in which comparable provi- commerce is “substantial” the Morrison contained no sion, in- upon any opinions focus is not one individual as the Court’s activity regu- emphasized, covered those cases stance some our sister upon ag- lation but is rather whether the circuits have relied on this distinction considerations) gregate (among holding of all covered instances as whole other substantially Lopez lаrge- affects interstate commerce. and Morrison are either cases, validity principle ly inapplicable general of that has to Hobbs Act or do established, long clearly recog- require and is that a been substantial effect on At Lopez nized in both and Morrison. interstate commerce be shown time, however, prosecutions Lopez each of those deci- Act falling same under cate- principle gory respectfully disagree. sions holds that is not of three.29 We application, approach or unlimited and re- Such an universal would effect either apply category fused to it to sustain the statutes create a fourth of commerce Thus, power, contrary in Mor- plainly there under consideration. clause to the com- recognized aggre- prehensive category approach rison the Court three taken Morrison, gate Lopez violence gender-motive away of instances of or would do *18 scope “substantially within 13981 did ulti- with requirement of section affect” mately on interstate which large opinions clearly have effect those so state is commerce, 1752, constitutionally category at but in id. nevertheless mandated principle held that to aggregation could three cases. lacks the applied, stating: provide be for lesser relation to interstate 1267, Gray, Harrington, 29. See United States v. 260 F.3d See also United States v. 108 F.3d (11th Cir.2001); 1460, (D.C.Cir.1997). 1274 United States v. Ma- 1465 lone, 1286, (10th Cir.2000). 222 F.3d 1295
395 only robbery), which simply case deal with the Hobbs category in that proscribes, Act is a commercial or econom jurisdictional provision. including a always activity taking ic involves in Lo- enunciated principles Otherwise “personal property” person. from another essentially would be pez and Morrison 1951(b)(1). § Gray, See States v. agree with the Seventh meaningless. We (11th Cir.2001) (“Un 1267, 260 F.3d respect in in this observations Circuit’s Morrison, like the statute at issue in Wilson, 675, 73 F.3d United States plainly undeniably regu Act Cir.1995).30 (7th activity”); lates economic United States v. Act say to that the Hobbs This is not (10th Malone, 222 F.3d Cir. serves no function. jurisdictional element 2000) (“Unlike the statutes at issue case, in each It allows a determination Act Lopez, regu Morrison and the Hobbs facts and character- particular on its based activity”). But lates economic see United istics, application in that case whether (7th Peterson, 236 F.3d States v. Congress’s with the statute is consistent Cir.2001) (“... the Hobbs Act does not of that power. Because Commerce Clause suggest robbery is an economic activi is not jurisdictional element the statute ty”). facially invalidat- subject being properly respectfully take a somewhat differ- We ed, essentially the result which was ent view of the matter. where the statutes Lopez and Morrison jurisdictional element. any lacked involved approach of these cases seems be activity regulated that whenever the or eco- Regulation F. of commercial “economic,” then, purposes Lopez activity. nomic cases, category three there are never aggregation limits whatever to use of the our sister circuits have held Some of always employed theory and it Lopez refusal of and Morrison (and always satisfy practical matter will aggregation principle to sustain apply the “substantially” require- affects satisfy) consideration is the statutes there under category three.31 While Lopez Act ment of wholly inapplicable to the Hobbs be seem, practical as a this would least proscribed those statutеs offenses cause matter, Lopez category limit three to or economic which were not commercial (or extortion, regulated activity was here cases where the robbery while but we Collins, discussing 40 F.3d 100-101 United States v. 30. The "Wilson court stated: "In (5th 1994) (applying Cir. this Court's decision Lopez, jurisdictional element in the lack of (5th Cir.1993), Lopez, 2 later F.3d simply imply that all the court did not state or Court). See also affirmed element, criminal statutes must have such an (8th Quigley, F.3d United States v. an element would or that all statutes with such Collins). Cir.1995) Obviously, (relying on constitutional, or that statute without he assumption proceed on the these decisions per element is se unconstitutional.” such an speak Lopez Morrison to Hobbs and/or added). (emphasis quoted We that sen Id. category Lopez three cases prosecutions approval in United tence from Wilson with jurisdic notwithstanding presence of a Bird, (5th Cir. States v. ab in the Hobbs Act and the tional element 1997). in the statutes in sence of such an element Moreover, several decisions have indicated Lopez and Morrison. volved Lopez preclude most Morrison and/or of indi- prosecutions only Lopez categories Hobbs Act for robberies one or two 31. Where involved, "substantially Lynch, showing *19 af- United States v. viduals. See are (9th Cir.2002); aggre- required, and so whether United States fects” is not 1052-55 (6th Cir.2000); generally irrelevant. gation available is Wang, 222 239-40 F.3d activity is nation whether an intrastate any to obliterate distinc- and non-economic inmay between the Lo- or noncommercial in cases commercial tion “economic” not and do not categories, legal uncertainty.” we need pez some cases result added). that issue. (emphasis reach Id. at 1633 there is a arguendo, Assuming, quoted last sentence above is likewise cases as to which category three class of in Morrison. Id. at 1750. Justice quoted aggre- whatever on no there are restraints Kennedy, concurring opinion in his in Lo- such a class would conclude that gation, we pez (joined Justice O’Connor and regulated “the ac- instances where exclude opin- joining Rehnquist’s in Chief Justice described as “com- tivity” properly is not Court) states: ion for the gener- in the same mercial” or “economic” the Federal to take “Were Government al sense as “commercial.”32 regulation of entire areas of over the Lopez Morrison each refer both and concern, having state areas traditional activities and “economic” “commercial” nothing regulation to do with the synonymous- use the terms appear activities, commercial the boundaries 922(q) that section ly. Lopez Thus states spheres of federal and state between activity” “regulate[ a commercial ] does not authority political re- would blur and 1760), in Morrison id. (quoted id. at 1626 sponsibility illusory.” would become Id. and that added). (emphasis at 1638 part an 922(q) is not essential “Section passage quoted is likewise with The above larger regulation of a of economic activi- approval in Morrison. Id. at 1750. scheme could ty, regulatory which And, what with since we are concerned unless the intrastate activi- be undercut power Congress is the under the Com- cannot, therefore, It ty regulated. were regulate merce Clause—the “[t]o upholding our cases be sustained under Nations, foreign with Commerce of activities that arise out regulations among the several and with the with a commercial or are connected rather than Indian Tribes”'—-“commercial” transaсtion, aggre- which viewed simply any broadly concept understood substantially gate, affects appropriate “economic” seems be the commerce,” (emphasis add- id. at 1631 concept. ed), Robbery “activity” regulated and that is the Act, the Hobbs and we conclude that for do not doubt has “We robbery purposes these cannot be consid- authority the Commerce Clause under activity. Robbery ered a commercial does activi- regulate numerous commercial so, too, effect. do have economic But substantially ties that affect interstate only all kind from education- not thefts commerce and also affect the also, example, virtually all Admittedly, a determi- victim but process.... al activity” Higginbotham’s dissent. We need regulated is not "commer- Hickman If "the (or govern regulation does not cial” not and do not address whether such consid- wholly partially (or ones) conduct of a or commercial govern erations similar or limit the endeavor), merely enterprise that means aggregation availability purpose for such that, category Lopez three cases where regulated activity intrastate where the "substantially affects” show- there must be a (or regulation govern "commercial” does then, aggregation ing, is avail- whether or not wholly partially of a commer- conduct elaborat- depends able on the considerations endeavor). enterprise or cial Judge ed on in G below *20 Moreover, over, approach allowing aggregation criminal homicides. the here Act, apart portion of the Hobbs relevant simply because of “the infliction of eco- the accused simply specifying (or “depletion nomic harm” ... as- “robbery” any which “in have committed sets”) equally supports making a federal (al- ... way degree or affects commerce” any (say any offense of crime criminal though requiring any intention to have producing homicide or assault serious bod- effect), foreknowledge says or of such ily injury) long so as it causes economic nothing identity, whatever about the status harm depletes or economic resources and (whether activity being engaged or as way degree hence some or affects inter- activity of commercial or other- sort state commerce—in the same sense as wise) robber, or of either the victim the fifty robbery fifty does a dollar or a cent purport any way regu- and does not to in (whether shoplifting from a victim an indi- late the conduct of commercial activi- retailer) purchases vidual or a local who ty. in this What is relevant connection long items made another state-and so Lopez under and Morrison is not the ef- aggregate effect of all such crimes on pro- of the conduct which the statute fects Yet, interstate commerce is substantial. may fairly scribes but whether the statute rejects Morrison the notion that regulate activity. be said to commercial may regulate simply a crime because “the portion The here relevant of the Hobbs nationwide, aggregated impact of that Act cannot. employ- crime has substantial effects on that some decisions recognize We have ment, transit, production, consumption.” or Act regu- taken the view “the Hobbs at Lopez Id. 1752-53. and Morrison re- lates the interference with economic activi- aggrega- flect that such a limitation on the ty by robbery,” at and for Peterson principle necessаry tion is because “[t]he aggregation analysis that reason alone an requires Constitution a distinction between always all that per appropriate is se truly truly what is national and what is depletion needs be shown is assets. local,” and regulation punish- “[t]he (“what depletion aggregated Id. is the ment of intrastate violence that is not di- entity’s by robbery”). the interstate assets instrumentalities, channels, rected at the (“Economic Gray activity, See also at 1274 goods or involved interstate commerce precisely or more the infliction of economic always province has been the of the harm, at the heart of the Hobbs Act’s Certainly, States.” Id. at 1754. none of However, prohibition robbery”). the instant robberies can be characterized noted, portion the here relevant of the instrumentalities, chan- as “directed says nothing Hobbs Act about the victim nels, goods or involved interstate com- And, being entity.”33 an “interstate we 34 Further, merce.” the several decisions are aware of no case in Commerce Clause refusing applicable to find the Hobbs applied which the Court has to most of individuals under the- robberies aggregation principle to a class of activities aggregation ories of deletion of assets and where contours of the class are not reason- commerce of all ably language of the effect on interstate inferable from the of the challenged regulation. support statute or More- such robberies our view likewise any way degree properly 33. Nor the victims here be so "in ... affects commerce” IIC, part supra. characterized. See way "directed at is in no limited to robberies instrumentalities, channels, goods in- And, portion the here relevant volved in interstate commerce.” Act, denouncing any "robbery” which *21 398 stan- appropriate turn now to the that this It has been said We respect.35 this general “in in such a case justified because to determine whether is dards
distinction larger scale purchase on three “sub- applicable Lopez category ... businesses the v. Boula States than United met stantially requirement individuals.” can be affects” (7th Cir.1982). 586, hanis, 677 F.2d the effects of all such rob- by aggregating However, persua not justification is beries. portion relevant
sive
the here
because
no distinction be
Act makes
the Hobbs
Hobbs Act
Aggregation
G.
and the
proscribes
it
on the
the robberies
tween
observed,
aggregation
the
previously
As
victim is a business
basis of whether
only Lopez
cate-
principle has relevance
(or
activity),
in a commercial
engaged
cases, cases that are concerned
gory three
every
reg
consumer
virtually
and because
only
regulation of intrastate conduct.
with
funds on
ularly expends considerable
explicit re-
regulation, Lopez’s
to such
As
originating out-of-state
of items
purchase
intrastate
regulated
quirement
than
many more consumers
and there are
merely
com-
affect interstate
conduct
Indeed,
spending is
consumer
businesses.
“substantially” is
merce but that it do so
to amount
to two-
generally estimated
obviously designed
congres-
to insure that
economy.
also
national
See
thirds of the
Clause
sional
under the Commerce
Thomas,
296,
159 F.3d
States v.
United
meaningful limits and
wholly
is not
without
(7th Cir.1998) (“since
aggregate
be-
does not obliterate the “distinction
on
individuals]
robberies [of
effect of such
truly national and what is
tween what is
non-trivial,
cases are
commerce is
those
local,”
truly
at
so as to transform
id.
...
on
the onеs
which insist
tension with
unitary system
government
to a
Moreover,
previously
aggregation”).
system
constitutionally
federal
established
noted,
aware of no
Court
we are
which,
among
things,
other
there
under
applying
decision
Commerce Clause
police power,
example
“no better
of the
aggregation principle to class of activities
denied the National
which the Founders
reasonably
are not
the contours of which
reposed
Government
language
of the chal
inferable from
crime and
suppression
than the
of violent
Thus,
regulation.
lenged statute
of its victims.” Morrison
vindication
Hobbs
principle
applied
if
aggregation
essentially
limits
1754. Yet if there are
no
all robber
prosecutions,
apply
would
to sat-
aggregation principle
on use of the
(of
any personal property, from
ies
robber)
isfy
“substantially”
then
victim,
way
requirement,
by any
which “in
virtually mean-
requirement
becomes
...
commerce.”
degree
a£feet[s]
day;
purchased
Lynch,
the next
restaurant
v.
count
35. See United States
F.3d
(9th Cir.2002) ("...
robbery
have
suppliers;
does
not covered
meat from out-of-state
however,
eco-
component;
Act,
Morrison);
economic
citing
United States
simple,
component
rise above the
Cir.1995);
nomic
must
(8th
Quigley, 53 F.3d
forced,
though
transaction between
economic
Collins,
40 F.3d
100-101
United States v.
Otherwise,
every
almost
vio-
two individuals.
(5th Cir.1994) (robbery
au
of Mercedes-Benz
property
lent
crime would be transformed
cash,
tomobile,
jewelry and
phone,
cell
offense, contrary
the teach-
into a federal
clothes);
Buffey,
States v.
899 F.2d
Morrison"))
ings
Wang,
United States v.
extortion);
(4th Cir.1990) ($20,000
Unit
Cir.2000) (restau-
(6th
239-40
Mattson,
(7th
In United Statеs
propriety
questions”
“serious
(5th Cir.1997),
rejected an as-
we
principle in that
applying
aggregation
challenge to a Hobbs
convic-
applied
The en
court noted that
Lopez
setting.37
that under
banc
urged
tion which
aggregation principles can be used as
conspiracy and
36.
one
involved
Robinson
jurisdictional
under
involving
commerce clause
hook
counts
retail store
three substantive
underlying
crimes
the Hobbs Act when
provided
"stores
robberies.
The victim
spree....
purely local
arise from a"
crime
check-cashing services ...
the stores cashed
checks,
checks,
are not the
These local robberies
sort
gov
payroll
out-of-state
legitimately
activity
be
economic
that can
checks ...
several of the
ernment benefit
aggregate
viewed in the
for traditional
shipped to
products
sold
that had been
stores
analysis purposes.
impact
economic
The victims ... suf
Texas from other states.
con
conceptual difference between the
of the rob
fered substantial losses as
result
might
home-grown
sumption of
wheat that
perma
one store was forced to close
beries:
open
on the
otherwise have been sold
nently
capital,
and the others were
for lack
Filburn,
market,
Wickard v.
317 U.S.
see
period
checks for a finite
unable to cash
(1942), or
.
63 S.Ct.
sions and As opinion.38 Hickman
Higginbotham’s regu- Congress sought has “Where opinion: in that stated enhance, or restrict— protect, effects late — hold that substantial “We would wheat, particular some market such as not be upon interstate travel, credit, minority or abortion ser- diverse, sepa- by aggregating achieved vice, pointed way it has to a rational of intrastate ac- individual instances rate test. It has identified those aggregation no rational basis for tivity there is where market, things things that affect that among connections finding sufficient subject regulation to the which if not all course, may protect, Congress them. Of pro- Intrastate would erode the effort. particular in- enhance, some or restrict aggregated, can market, duction and sales such as those economic terstate travel, goods and credit, prices because the services wheat, minority abor- like, service, are determined interstate markets. illegal drugs, and the tion If, example, government the federal may regulate intrastate Congress price a broader scheme. enacts a control to ensure suffi- activity part any regulation producers, not a income for it will be The Hobbs Act is cient market, nor buying interstate economic thwarted if consumers switch to relevant rational connections produce are there other commerce or goods intrastate that would among nationwide robberies in- goods themselves. Because the to make federal crimes Congress entitle activity of economic are inti- stances of them all. aggregate mately connected and commerce, substantially affect target Act does not
The Hobbs market, activity.” Id. at 233. regulate can such product, process, class of 1267, (11th Gray, Cir. prece v. 260 F.3d 1273-74 clear circuit Robinson constitutes Peterson, 2001); aggregation application of dent for the United States v. 236 F.3d thereby activity, 848, (7th Cir.2001); this local non-economic United States v. Ma jurisdictional setting clause 1286, the commerce lone, (10th Cir.2000). 1294-95 hook.” Id. at 456. Lynch, 282 But see United States v. F.3d (9th Cir.2002); Wang, United States v. recognize cir- 38. We decisions of our sister (6th Cir.2000). For the F.3d apply after Morrison to cuits that continue herein, respectfully we view reasons stated prosecu- aggregation analysis to Hobbs Act differently. the matter Elias, See, e.g., United States v. tions. Cir.2002); (2d 188-89 United States F.3d only regulated does the and between them and a also that not scheme We observe prod- target Act “not class regulation (protection,- enhancement or uct, restriction) or even commercial process or market particular of some victims,” apply it has also been held to but activity regulation market or such that the extortion) (or adversely robbery which rationally of those intrastate activities can illegal commerce39 as well as to affects necessary be viewed as to the effectiveness beneficially affects commerce.40 which meaningfully supporting part of or a regulation particular scheme of of that in- in the Hickman en banc analysis activity terstate or market. following fully comports dissent with the passage Lopez explaining crucial now turn to the most frequently We 18 U.S.C. Court’s refusal sustain cited of these cases. theory, viz: 922(q) aggregation § under an Filburn, Wickard 922(q) part is not an essential “Section (1942), 87 L.Ed. involved activi- larger regulation of a of economic operated farmer who “owned and -a small ty, regulatory in which the scheme could ... maintaining dairy farm a herd of cat unless the intrastate activi- *24 be undercut tle, milk, cannot, therefore, selling raising poultry, It ty regulated. were and sell upholding ing poultry eggs” sustained under our cases and and “a raising be small regulations of that arise out of acreage activities of vrinter wheat.” Id.- 84. He are with a commercial wheat, connected part part sold of the fed to his transaction, aggre- in the which viewed cattle, poultry and some of which were substantially interstate gate, affects sold, seeding some for in used some (emphasis commerce.” Id. at 1631 add- making consumption. flour for In home . ed). year question his wheat “available marketing” quota Agricul for under the applied Where the Court has Adjustment tural Act of 1938 as amended regulation of aggregation uphold federal 11.1 acres he . but harvested against intrastate conduct constitutional penalized 23 acres and was 49 threshed Clause, challenge under Commerce on the cents bushel 239 bushels harvest always a rational there has been basis from the 11.9 ed threshed acres interrelationship or com- find sufficient 83, 84, acreage. Id. at 86.41 The monality excess of effect on interstate commerce con- among the discrete intrastate instances Court assumed that this excess was See, Peterson, effects"); e.g., only United States v. 39. United States v. 236 F.3d ited to adverse 848, (7th Cir.2001) ("the 1351, Cir.1999) (11th 854 Hobbs Act does Kaplan, 171 F.3d 1357 require the commerce affected be (Hobbs protect Act "intended to commerce Jones, commerce"); legal United States v. effect, they whether and all forms of 276, (2d cir.1994); United States v. F.3d adverse”); are ... beneficial or United States Ambrose, 505, (7th Cir.1984) F.2d Mattson, (7th 671 F.2d Cir. v. (Hobbs punish properly Act "read to extortion 1982) ("Even a on beneficial effect interstate illegal promotes well as as commerce, e.g., facilitating the flow of build commerce”). legal extortion that retards See lines, ing materials across state is within the also, e.g., Bailey, United States v. 227 F.3d statute”). prohibition of the (7th Cir.2000) ("robbery of cocaine generally dealers has an effect on commerce" not threshed was not considered 41.Wheat Act). purposes of Hobbs marketing” and could without "available for See, hay Diaz, penalty be cut and cured or fed as e.g., United States v. (11th Cir.2001) (under the head and straw to- reaped and fed with gether. Id. at 93. "the effect on interstate commerce is not lim- nevertheless, principle are absent farm, aggregation and under but sumed on the prosecution. quanti- present minimal in the character comparatively despite the against Com- the ef- penalty In market forces related ty, sustained Wickard alia, challenge, stating, inter regulated the individual instances of merce Clause fect of conduct to each other and intrastate of home- consumption “The effect in- regulation particular of the scheme interstate commerce is wheat on grown market, namely sustaining the terstate fact that it constitutes the due to the at which wheat was sold interstate disappear- price in the factor most variable commerce; moreover, the diverse instanc- crop. ance of the wheat regulated conduct Wick-
es of
intrastate
regu-
ard each had a similar effect on the
primary purposes of the Act
One
scheme,
latory
that is each had the same
the market
question
was to increase
tendency
price
to affect
that end to limit
of wheat and to
price
way.
in the same
wheat
that could affect the
the volume thereof
hardly
denied that a
market.
It can
Likewise,
Wright
United States
variability
volume and
factor of such
Co.,
Dairy
wood
have a
home-consumed wheat would
(1942),
upheld a
fect
regulate
price
moving
of milk
inter-
trade therein at
purpose to stimulate
Illinois,
Chicago,
into the
market-
state
prices.
increased
area,
ing
extends to such control over
transactions there as is neces-
intrastate
supply, upon which the
Control of total
regu-
sary
appropriate
and
to make the
based,
statutory plan
depends
whole
effec-
lation of the interstate commerce
upon
supply.”
control of individual
Id.
tive;
authority
that
it includes
to
and
added).
(emphasis
at 90-91
regulations
marketing
like
for the
make
compe-
intrastate milk whose sale and
Lopez
describes Wickard
of
We note
milk affects its
reaching example
tition with the interstate
“perhaps
the most far
authority
price structure so as
turn to affect
over intra-
Commerce Clause
adversely
Congressional regulation.”
Lopez
Clearly,
at 1630.
state commerce.”
however,
Id. at 527.
brought
the factors that
Wickard
of discouraging
decisions Heart Atlanta Motel
effect
travel on the
379 U.S.
85 S.Ct.
part
portion
v. United
of a substantial
of the Ne-
(1964), and Katzen
42. The
of the above
through
special guide-
the reference to "a
unpleasant
obviously
This
dis-
conditions.
States,
quoted
book” is
in
v. United
Perez
courages travel and obstructs interstate
1357, 1361,
U.S.
91 S.Ct.
invoke
challenged
pro-
Control
of 1977.
on both
trafficking
is carried
interstate
complex
visions
a
regulatory
constituted
in preventing the
Congress
and intrastate
governing
mining
scheme
coal
op-
surface
may
trafficking
proscribe
also
interstate
erations, requiring, among
things,
other
where,
trafficking
prac
as a
intrastate
restoration,
dams, spoil
land
use of
dis-
(for
fungi-
tical
reasons such as the
matter
posal and
noted
the like. The Court
con-
or the
bility
particular
commodities
gressional
findings
mining
that surface
like),
necessary
regulate
it
the intra
is
adversely
by,
interstate commerce
affects
alia,
trafficking
effectively reg
utility
in order
inter
destroying
state
land
commercial,
industrial,
See,
agricultural,
for
trafficking.
e.g.,
ulate the interstate
forestry
causing
purposes,
and other
ero-
Lopez,
v.
F.2d
951-
United States
contributing
flooding, pollut-
sion and
(5th Cir.1972).48
ing water
v. Virgi-
and otherwise. Hodel
does not
present case
involve
nia at 2361. The Court observed that
mar-
targeting
any particular
interstate
is a
commodity
“coal
that moves
inter-
activity,
ket
and
is evident that the
state commerce. Here
rational-
robberies which do not
proscription of
ly
regulation
determined that
of surface
have
effect on
com-
requisite
mining
necessary
protect
coal
inter-
necessary
in no sense
to effective
merce is
state commerce from adverse effeсts that
may
activity”
that do.
result
regulation of those
from
particular
Money,
precisely
practices
because such
sible
a
case.
course,
depend
monopoly
their full effect on
fungible commodity;
ais
classic
national,
metropolitan areas and
at least
showing
may
its movement interstate
multi-state, organization.
a
provided
This
completely impossible where all that moves
congressional
logical
basis for
focus
recorded,
all,
intangible
is cash
if at
as an
variety
loan-sharking
than on
rather
on someone’s records or
in someone's
may be
crimes which
far more 'local'
other
Perez,
memory.” United States v.
nature, e.g., robbery, burglary, larceny.”
(2d Cir.1970).
1080-81
Perez,
v.
F.2d
United States
Similarly,
Darby,
in United States
U.S.
Cir.1970)
added).
(2d
(emphasis
451, 461,
“Appellees forming part oper- contend a number of the ed was conduct specific provisions challenged wholly partially in this ation of a commercial (whether enterprise operated case cannot be shown to be related to owned congressional goal preventing legal entity). ad- or some individual governed aspects of how regulations verse effects interstate commerce. The opinion disadvantageous competition operators "... with there states: the Act re- congressional goal protecting flects the rigorous regulatory pro- in States with less operators adhering high mine in States grams." Id. at 2386. performance and reclamation standards from *30 408 (or partially budding commer- the was not commercial or busi- a commercial
such
cial)
operate, what it must
enterprise
capa-
must
property,
ness
and therefore was
operations.
in its
must not do
See
subject
being
ble of
the
of an offense un-
(“[I]n
Morrison,
n.
at 1750
4
S.Ct.
844(i).” Id.
In the
der section
at 2456.
every ease
have sustained feder-
where we
Supreme
presented only
he
an issue
Court
aggregation
regulation
al
under Wickard’s
statutory
expressly
construction and
activity
the
was of an
principle,
regulated
argument,
disclaimed
constitutional
character.”).
apparent commercial
stating:
his “Brief For Petitioner” there
language
recognize that
Russell
We
Mennuti,
“Mennuti
States v.
[United
858, 105
Cir.1981,
2d
case on
F.2d
(1985),
prosecution
poses
Lopez category
quali-
of
three has a
we conclude that
the Hobbs Act’s here
quantitative aspect,
tative as well as a
proscription
relevant
any robbery
that
though
aspects
those two
are somewhat
“in any way or
...
degree
affects com-
being entirely
interrelated rather than
in-
merce” does not constitute a regulation of
dependent of each other. Limits on the
activity,
commercial
notwithstanding that
aggregation principle, necessary
give
effect,
all robberies have some economic
meaning to
so
preserve
“substantial”
as to
and hence is
scope Lopez
within the
truly
the distinction between “what is
na-
Morrison. We further conclude that the
local,”
truly
tional and what is
should thus
instant
fall
Lopez
robberies
within
catego-
quantitаtive
take into account both
three,
ry
they
that reason
are
qualitative considerations. We conclude
within
power only
the Commerce Clause
if
that
the limits we have outlined do so
they “substantially” affect interstate com-
notwithstanding that
their most obvious
considered,
Individually
merce.
it is clear
quantitative.
focus
To the extent
that
any
none
them do. Nor is there
meaningful,
that there is a
rational basis to
purpose
rational basis to for that
aggre-
aggregate,
aggregated quantita-
then the
gate
respective
their
effects on interstate
tive
effect
interstate commerce tends to
commerce with the effect on interstate
qualitatively justify viewing the matter as
all
commerce of
the undifferentiated mass
truly
truly
national
rather
than
local.
of robberies covered
the Hobbs Act’s
Conversely,
regulated
category
that
general proscription
here relevant
three intrastate conduct is not a commer-
“in any way
and all robberies which
activity
cial
essentially
but is rather
“the
...
degree
commerce.” To
suppression
affect[ ]
allow
qualita-
of violent crime” is a
aggregation
Lopez
such
category three
pointing
tive consideration
towards the
would,
justification,
regulation being
adequate
cases
without
truly
local nature
bring
scope
unless there is a
within the
of the Commerce
meaningful and rational
aggregation.
proscription
basis for
There
Clause the
of local violent
is no suffi-
(and other)
cient rational
aggregate
constituting
basis to
the ef-
crimes not
regulation
fects on interstate commerce of
activity,
of commercial
crimes
solely
statutory
property.
treats the case as
one of
con-
hence not business
Both those
struction,
844(i)
contention,
namely
inap-
rejected
§
holding
whether
courts
(as
contended,
plicable
though
property
the defendant
before
residential
in one
sense
Court,
See
those courts and the
was used as a business
the defendant.
Russell,
was)
property
United States v.
because the
was residential and
The on each Hobbs options of clear statement. The first two accordingly counts should reversed.53 this court’s division. Our describe court’s 924(c)(1) Because each of the section impasse leads me to state the case for the concededly depen- counts conviction least, path. plain third At the it make will the corresponding dent on 942(c)(1) conviction, the this In describing the section division of court. count of all path, should likewise be re- this I not the counts conviction need retreat from view expressed versed. for half of our court Hickman ably and so in Judge defended Garwood’s respectfully dissent from the affir- We opinion, one again for half of our court. mance of these convictions. HIGGINBOTHAM, E. PATRICK I Judge, concurring in the dissent Circuit conviction, judgment affirming from the developing With the case law since GARWOOD,E. GRADY with whom Hiсkman, step principles there is a DeMOSS, Judges, JOLLY Circuit judicial offer restraint this inferior court join: before it if Congress decides has the au- thority the under Commerce Clause to
For a second time this court has been make crime a federal of local robberies agree upon unable to the bite recent such as those before us here. It could Supreme interpretations Court of the Congress insist that do it first what has Clause. This should be no sur- Commerce not clear to reach by purpose done—make its prise. We are adrift statute left wholly activity charged intrastate whose reach is no more fixed than best line latest property set at the low tide the crimes now before us. For reasons I tributary. an ocean mark of explain, by ought will path third we' apply refuse Hobbs Act to this certainty. The Supreme There is some genre Congress local until robberies turned away Court has New Deal clearly purpose its Only states to do so. of the Commerce view reach then should the courts the com- decide to be defined largely Clause is question pressed upon merce now being political process. path But the will fol- us. far go low and how it will are undecided. turn, respective Congress
In
roles of
enterprise
courts in
and the
remain
II
Add
Act’s unique
uncertain.
the Hobbs
Supreme
required
Court
long
to define
all
has
proscribing
effort
its reach
if
juris-
over
intends to
“the
robberies
which there is federal
alter
usual
wholly tautological
diction—a
statement
constitutional balance
between
States
separately
53. As we conclude
evidence
we
does not suf-
do
address the
requisite
complaints
jury charge.
fice to show the
effect
of the
Government,”1
Congress’
it must ment of
significantly
the Federal
intent
alter
unmistakably
clear statement of
the federal state-balance.7
make
language
to do so
its intention
The doctrine of clear statement
is ani-
statute.2
by principles
mated
of federalism inherent
expression
it found
most often
the>structure of
Although
Constitution.8 Al-
the.
congressional abrogation
though
protection
against
in the context of
of the States
immunity,3
sovereign
Congress’
of state
the doctrine
intrusive exercises of
Commerce
applied
powers
largely
of clear statement has been
broad- Clause
is still
left to the
ly
uncertainty
application
political
process,9
permit
where
courts to de-
directives would
to the
cide
congressional
poorly
congressional
leave
whether
aimed
upset
upon
court the decision to
the federal-
thrust encroached
regulation
state
Court
intrastate criminal activity
state balance.
has
“would evade
*33
settings.
very procedure
lawmaking
invoked the doctrine
various
“persons”
that
which
protect
It found
states were not
Garcia relies to
states’ inter-
10
1983,4
§
meaning of 42
ests.”
Insisting upon
within the
U.S.C.
a clear statement
from,
Age
and that the Federal
Discrimination
ais modest exercise of
judicial
in Employment
power.
only
Act could not be construed
It
that Congress
asks
judges
job,
a
do
insisting
Congress engage
to interfere with State’s choice of
its
that
language
judges
political responsibility
absent clear
that
are in-
its
by being clear of
Similarly,
purpose
cluded.5
the doctrine of clear
its
when it would reach into a
sphere
of the articulated
authority.11
statement
is one
limits
of state
In its most
form,
spending power,6
sanguine
“may
on the
and federal laws
it
lead
mem-
some
criminally punishing
readily
engage
“conduct
de- bers to
in the kind of deliberation
scope
nounced as
the States” are
about the
powers
criminal
of their Article I
narrowly interpreted
they
absent
clear state-
that
should
anyway
part
undertake
Police,
Florida,
Michigan Dept.
1. Will v.
State
491
8. See Seminole Tribe
v.
of Florida
58, 65,
2304,
44, 55-56,
1114,
U.S.
109 S.Ct.
tween Possession, or the District of Columbia state commerce has no content absent a thereof; all com- any point upon outside further a rational relation- insistence within the same points ship among merce between effects discrete that would be place such through any outside aggregated. judgment State This means that a State; all other commerce over rationality about the aggregating jurisdic- has States which effects of is a these discrete robberies supplied) (emphasis substantiality, tion.”25 requirement correlative By path, and must made. this third case, up if picked in this The “robberies” Only first be the Congress. must made all, phrase “and must be reached made, judgment after that is should over which the United all other commerce courts decide the issue of the level of expression This jurisdiction.” States has legislative judgment. deference due that purpose, legisla- at the zenith of made very it is then And that the content of the hegemony in the contest of who de- tive newly required substantial effect will be power, cides limits of decided. plain more the Jones reach no than Act’s Con- seaman or Omnibus Crime irony There is in a court task about the every Act’s reach of trol and Safe Streets powers policing moving enumerated firearm.26 presuming legisla- to the alternative of judgment supplying
tive its own view If the first instance. it is IV sufficient hypothesize rationality, drawing upon the observed, it is now clear that this As we creativity judicial imagina- counsel cannot intrastate generalized reach touch nothing tion there is substantial about have a effect acts do not substantial substantiality; wholly the courts will have upon govern- interstate commerce. The political process deferred as the ar- us ment concedes that the robberies before biter state-federal role. On the re- cannot meet the substantial effects hand, if congressional purpose other quirement aggre- robberies must be —all relevant, simply supplied by or is At in a gated. point engage we can courts, the courts would be the exclusive all supposition thought *36 I am persuaded arbiter. not that the sufficiently local these were robberies powers of of principle separation ought the as regulate linked to them a class. This only polari- to oscillate between these two an aggregation fanciful because such was ties. necessary to be at the thought not even time of the Act or the Hobbs Act. V Congress fact is made
The
that
has never
never
that decision. It has
decided wheth-
This is
the first time that the doc-
what
aggregate.
er or
clear
applied
trine of
has been
statement
that
limit the
a
application
Hickman insists
Morrison’s
re-
federal crimi-
regulated intrastate activi-
statute to
quirement that
nal
intrastate criminal conduct.
1951(b)(3)
added).
statute); Bass,
(emphasis
§
25. 18 U.S.C.
jurisdiction of the States.”30
application
whether
of the statute
Enmons,
In response to
Sixth
generate
would
a result
interfered
narrowly
Ninth Circuits
construed the
with
authority
state
in a way that Con-
Act,
concluding
only
activities
gress
Culbert,
had not intended.36 Unlike
prohibit
“racketeering”
constitute
are
which
attempted robbery
involved an
rejected
ed
the Act.31
Court
$100,000
federally
bank,
from a
insured
approach
United States v. Culbert32
application
Enmons involved the
of the
concluding
plain
it conflicted
awith
Hobbs Act to
used
violence
to achieve
reading
legis
of the statute
well as the
strike,
legitimate
objectives
union
in a
history.33
lative
rejected
Culbert also
thereby
unprecedented in-
effectuating “an
claim that the doctrine of clear statement
required
racketeering
jurisdiction
the Court to read a
cursion into the criminal
Bass,
349-51,
27.
28.
Id. at
tent
JOLLY,
pattern
dissenting,
of Com-
with whom E. GRADY
judicial hand. The recent
SMITH,
powerful
JERRY E.
DeMOSS and
argu-
offers a
merce
cases
Clause
CLEMENT,
join:
step
Judges,
first
Circuit
dialogic legislative
for the
ment
doctrine of clear state-
afforded
Judges
Higginbotham’s
Garwood’s and
ment.
pareil opinions explain why eight
non
judicial
of a
members of this court would hold that
claim
role
Court’s
appellant
McFarland could not be constitu-
defining the limits
the commerce
tionally
the Hobbs Act
prosecuted
not
that was
the exclusion
under
suggest
did
Nonetheless, we could sim-
for routine convenience store robberies.
Congress.
Lopez
justification
Supreme
point
out The
Court’s decisions
ply proceed. And
statement,
result,
and Morrison
compel
clear
at the
this
our
with a
even
view, by limiting
yet
adju-
the extent
which the
margins
might
engaged
we
be
ever-deeper
by case-by-case
Commerce Clause facilitates
dicate the limits
decision
into
in and that
out. But
federal incursions
the states’ constitu-
one’s
one’s
precedent
prerogative of local crime control.
nagging
there
and tional
remains
judges
reject
question
rationality
Eight
silently
other
this con-
transcendent
Unfortunately,
they have' with-
what is meant
ration-
clusion.
aggregating and
dispute,
ality,
and the courts in drawn from the field
reasoned
task
question
just
years
in a
case
nags
they
not faced. The
did
similar
two
turn have
Hickman,
United States
that un-
suggestion
ago.
of the further
F.3d
because
banc).
(5th Cir.1999) (en
It is our
given
no
will
to such a 230
less
deference
decision,
ought
public
our
congressional
pro-
view that
court owes
we
posi-
it,
explanation
respective
candid
of our
without
and the
Court
ceed
no
tions.
has not said that
deference
due.
*38
Morrison,
Enmons,
United States v.
n. 7 529 U.S.
U.S.
(2000). why colleagues Wald, our may One ask silent Hon. Patricia The Problem with the on anything. should be called to write Is Courts: Black-Robed Bureaucracy or Col- inappropriate legiality somehow for courts to is- Under Challenge?, Md. L.Rev. (1983). opinions they sue are evenly when divided? 768-69 is, The short to this no. question answer The benefits of issuing reasoned opin- general Both the role of the appellate fostering public understanding of ions— courts and the of this exact circumstances law, the accountability transparency, and virtually expression case of demand our imposing and self-discipline on the competing views. judges not majority limited to opin- —are Judges’ ions. writings, occasional such as appellate
Federal courts’ twin duties are concurrences, dissents, opinions following appeals to decide and to articulate the law. denial en banc rehearing of opinions opinions, Writing especially in reasoned —and despite an evenly written divided court— cases, important responsi- is critical to the lack force of deploy the law but the force performance ble of these One of duties. for exactly suasion purposes the same prominent the most studies federal majority opinions. In no case can we appellate courts exhorts us: compel provide published our brethren to obligation give to is vital reasons for their By reasons decisions. their si- to both functions. When reasons are here, however, they lence have defaulted weighed, pub- announced can be and the public their explication, duties accounta- lic can have assurance the correct- bility transparency. and ing process working. Announcing is colleagues’ Our provide public reasons can also under- uniform silence is initial- ly standing disappointing of how the is impor- numerous decisions because this tant For system integrated. busy decade, are In a case. more than court, are an Court has reinvigorating reasons essential dem- been component onstration that the court fix federalism as a did in fact our constitu- its mind on case tional structure. at hand. An un- Lower federal courts obligation reasoned have very conscientiously decision has little claim to en- acceptance by to force the Court’s party, evolving defeated decisions this impossible area. The difficult or to as an new trend furnishes accept issues that systematic act reflecting application intellectually delight should and challenge Moreover, legal us our principles. analytical powers. and evoke utmost the necessi- ty opinions may reasons Our stating infrequently be useful to the Su- Court, ill, changes preme forcing judges good the results or when this appealed, persuasive to come with case grips nettlesome be facts issues which their other federal courts. normal instincts would otherwise cause them avoid. cannot, colleagues The reticence of our view, Paul D. Carrington, Daniel prudence, J. Meador and our rationalized Rosenberg, Maurice Justice Appeal unwillingness on write reasons (West 1976) added). (emphasis Judge non-definitive case. outcome of this Wald, formerly Judge of District Chief case is definitive. court When the tackled Circuit, emphasized Columbia also ago, issue years nearly same two point: opinions “The courts’ group judges give should contain same declined rea- explanations reasoned of their affirming decisions sons for conviction permit lend them legitimacy, public against evalua- a Commerce attack. Clause As a tion, impose result, a discipline judges.” government the federal feels free to
418 not, they there desire is local robberies without whether purely prosecute pattern jury prosecution principled in this circuit. Our limit on inhibition no federal showing a say continue instructions of proverbial of lemo- robberies —even (no on interstate of effect nade stand. small) create suffice to matter how will their Adding mystery to the of silence is Act over a jurisdiction federal consistent, op- albeit long-standing only by installed this The brake crime. tional, explanatory opin- practice issuing of all against robber- court federalization evenly split ions in other courts that have of our ar- under consists
ies
the Hobbs
sitting en banc. There are at least
when
years ago
bitrary
few
of rob-
a
exclusion
years,
in recent
two dozen cases
v.
States
of individuals. United
beries
Cir.1994).
circuit,
nearly every
opinions
in
(5th
which such
Collins,
af-
The
419
Moreover,
separate
of
filing
opinion
criticism his
the expression of the views of
case, Judge Wilkins of the
one such
judges
individual
an
when
en banc vote
explanation:
Fourth Circuit had this
equally
is
hardly
divided is
novel.
Judge Murnaghan’s
unsupported
Barber,
United States v.
119 F.3d
289
judge
that a
statement
should remain
(4th Cir.1997) (en banc)
cases).
(citing
an
particu-
silent when
en banc vote on a
well,
In this court as
silence
not our
is
equally
lar
is
is misplaced.
issue
divided
Judges
custom.
explained
have
them-
contrary, many
judge
To the
times a
many
selves in
previous eases where this
it
important
feels that
is
for the litigants
court divided
en
evenly
banc. Carter v.
why
others to
know
the court is
(5th Cir.1963)
United
intrastate robberies
the ones
like
before
can be
commerce,
impact
that have no
on interstate
clearly rejected this
petitioner
engaged
1752-53. Morrison
Jones
in which
conduct’
” view.
federal
law enforcement’
matter
‘a
Jones United
by crafting
would affirm
narrow-
Some
(2000).5
1904,
Obviously,
would allow
such
the
Alternatively,
facing
instead of
hard
regulate any
long
crime as
as
Congress to
robbery is
is not an
decision whether
or
nationwide,
aggregated impact
that
activity,”
of our silent col-
“economic
some
employ-
crime has substantial effects
argue
Act is
leagues would
that
ment,
consumption.”
production,
closely
activity”
transit
to economic
“more
related
hence,
Morrison,
615,
crimes,
aggregation
at
120 S.Ct. at
than are other
529 U.S.
Lopez,
Ginsburg
concurring); see
U.S. at
noted that in Lo-
J.
also
5. Justice
further
3,
[regulated
S.Ct. at
n. 3.
that the
561 n.
pez, “the Court stressed
activity] was one of traditional state concern
legislation
activity
aimed at
6.
position
Advocates of this
would contend
can,
pursuant
the actors nor their conduct
which 'neither
to its
Commerce
” Jones,
power, regulate
character.'
has
commercial
local crimi-
Clause
otherwise
858,
businesses,
(quoting
at 1911-12
but
targets
U.S. at
conduct that
nal
"rule”,
Lopez,
they
say,
at
S.Ct. at
pro-
could
individuals. This
clear,
concurring)). Additionally,
legisla-
(Kennedy,
guideline
J.
practical
for
vides
Stevens,
concurrence,
leg-
considering
Justice
stated
who
federal criminal
tors
are
prosecutors.
courts
be reluctant
to “believe Con-
well as
federal
should
islation as
gress
ignore
intended
authorize federal interven-
us
that this "rule” amounts to
Let
marginal
judicial legislation
in a
"rule” were so
tion in local law enforcement
easi-
—if
defensible,
private
ly
why
of a
resi-
is
not articulated
[arson
case such as
(Stevens,
colleagues?
position
silent
at
ulation to assert that prosecutors have been con- (citation omitted), regulated Wickard victing defendants under the Hobbs Act activity was commercial apparently aggregating the de minimis lo- effects of (citation See, Lopez.”) e.g., character. cal, intrastate for forty years. robberies omitted) added). All (emphasis course, Of Lopez and Morrison had not in- prior aggregation holdings Court’s Moreover, years been forty ago. decided regulation of the conduct of a volved opinions though even recent cir- sister wholly partially enterprise. commercial cuits may support this sort of an argument *44 The Hobbs is not such statute. This decisis, for stare inadequate their reason- theory aggregation would extend to an ing the does not sustain constitutionality no Supreme holding applied.7 area Court has tra- the Hobbs Act as here Lopez plainly point and versed. Morrison Finally, some of our silent colleagues away such an extension. would go suggest so far as to if the that Supreme applica- Court to rein in wanted again, colleagues may Then some of our Act, tion of ample the Hobbs has had in a dispute head different direction and opportunity to do so. This court should made a premise the that it has crucial not reasoning take the initiative. But this to Supreme difference the Court whether duty the backwards. It is lower courts’ aggregation was on the based status of faithfully apply the Court’s regulated activity as commercial or rulings Lopez and Morrison in first standpoint, this ag- noncommercial. From ignore instance. cannot We Court’s gregation turns on effects of the activ- decisions than we are permitted more (such not on ity robbery) and the inher- to second-guess grant failure to its certio- activity ent relation of the to interstate rari on issues of interest us. Lopez says exactly commerce. But opposite: activity “[w]here economic sub- Despite inco- their internal conflicts or commerce, stantially leg- affects interstate herency, arguments all of these share regulating activity islation will be responds common thread. None of them Lopez, U.S. at expressed sustained.” 115 to the so federalism concerns added). Lopez at 1630 (emphasis unmistakably S.Ct. and Morrison.8 Gray, 7. United See States v. F.3d distinction between robberies of individuals (11th and Cir.2001); commercial establishments. 1274-75 States v. Pe terson, (7th Cir.2001); 236 F.3d example: 8. To cite but one “Were the Federal Malone, United States v. 1294- regulation Government over the to take (10th Cir.2000). of the Several circuit concern, entire state areas of traditional areas patently arbitrary have courts also drawn the having nothing regulation to do with the neis, goods limit on in interstate any principled involved them None of sets prosecute always province exercise of federal has been the them None of Indeed, local crime.9 indisputably we think of the can States. and words “commerce” that the respects example police power, no better meanings, which do fixed “economic” have denied the National which the Founders conventionally ordinary include rob- reposed Government and bery. suppression than crime violent and vindication of its victims.” conclusion Rehnquist’s
Chief Justice however, was, tolerably clear Morrison Morrison, 529 U.S. at lay reader: (citations omitted). and footnote We accordingly reject argument “We might forthright responsi- had a and have regulate noneconom- debate, colleagues if our had adhered ble solely ic, conduct based violent criminal duty why they to express to their reasons on aggregate effect conduct’s have to allow McFarland chosen interstate commerce. Constitution convicted of federal crime. what is requires a distinction between truly local. truly national what preserve we one recognizing
In fact that has con- principles
of the few been Clause was [Commerce]
sistent since
adopted. regulation punish- is not
ment of intrastate violence instrumentalities, chan-
directed at the
activities,
employment,
be
crime has substantial effects on
commercial
the boundaries
transit,
Indeed,
author
spheres
tire
of federal
state
production,
consumption.
tween
*45
ity
political responsibility
would blur
gender-motivated
Congress
regulate
if
Morrison,
illusory.”
U.S.
would become
violence,
regulate
it would be able to
murder
1750, (quoting Lopez,
at
at
any type
gender-motivat-
since
violence
J.,
(Kennedy,
at
S.Ct. at 1638
U.S.
violence,
crime,
ed
as a
of all violent
subset
concurring)).
impacts
certain to have
economic
lesser
than
larger
part.”
class which it
Morri-
accepted, petitioners' reasoning would
9. "If
son,