Lead Opinion
Defendant Héctor Jiménez-Torres was convicted of violating the Hobbs Act, 18 U.S.C. § 1951(a), and using a firearm in the commission of a violent federal felony (i.e., violating the Hobbs Act) that resulted in a death, 18 U.S.C. § 924(j)(l). The conviction stemmed from Jiménez’s participation in a home invasion, robbery, and murder of a gas station owner in Puerto Rico. Jiménez appeals his convictions and sentence. We affirm.
I.
We present the evidence in the light most favorable to the verdicts. See Unit
Jiménez joined with a group of five other individuals to rob a home in Juana Diaz, Puerto Rico. The leader of the group was an individual known as “Petete,” who selected the house to rob. The owner of the house was Carlos Flores-Rodríguez, the sole proprietor of a local Texaco gas station that was engaged in interstate commerce. In the two months preceding the robbery, Flores’ gas station purchased approximately 40,000 gallons of gasoline from the Hess Oil Refinery in the United States Virgin Islands.
On the night before the robbery, Flores’ employee, Alex Lugo-Rodriguez, brought the gas station’s daily receipts of approximately $600 to Flores at his home. As was his custom, Flores placed the money in a kitchen cabinet with his ring and a revolver.
During the early morning of July 9, 1997, Jiménez and his co-conspirators traveled to Flores’ home, carrying two guns. They entered the house and gathered outside the upstairs room where Flores and his wife were asleep. After a few minutes, two of the conspirators brought Flores downstairs to the kitchen. Jiménez remained upstairs.
While remaining upstairs with Flores’ wife, Jiménez heard a quick succession of gunshots. One of the conspirators had shot Flores, and he eventually died of his wounds. The conspirators fled but not before stealing the money that was located in the kitchen cabinet. The next day, Flores’ gas station closed permanently.
After a five-day trial, the jury convicted Jiménez on the Hobbs Act and use-of-a-firearm counts. He was sentenced to 240 months in prison on the Hobbs Act count and a concurrent life sentence on the use-of-a-firearm count. As part of the statutorily mandated supervised release period imposed, the district court delegated to a probation officer the authority to decide the drug testing and treatment that Jimé-nez should receive.
II.
Jiménez raises five arguments on appeal. First, there was insufficient evidence that the robbery of Flores’ home affected interstate commerce — a prerequisite to conviction under the Hobbs Act. Second, the jury’s verdict was ambiguous on the use-of-the-firearm-count and required more lenient interpretation than was afforded by the district court. Third, the court abused its discretion by limiting his cross-examination of a government witness. Fourth, the court abused its discretion by interrupting his closing argument. Finally, the court improperly delegated to a probation officer the authority to establish the drug testing and treatment conditions of his supervised release term.
A. Hobbs Act
The Hobbs Act makes certain robberies federal offenses. See 18 U.S.C. § 1951(a). For the government to successfully prove a violation of the Hobbs Act, it must demonstrate that the robbery had an effect on interstate commerce. See id. Congress’ intent in enacting the Hobbs Act was “to use all [its] constitutional power ... to punish interference with interstate commerce by extortion, robbery, or physical force.” Stirone v. United States,
The government offered two ways in which the robbery of Flores’ home affected interstate commerce. First, Flores’ murder led to the closing of the gas station, a business which had been engaged in interstate commerce. Second, the robbery depleted the assets available to the gas station to participate in interstate commerce. Jimenéz asserts that the government did not present sufficient evidence of either effect.
We review challenges to the sufficiency of evidence de novo, although we take the evidence in the light most favorable to the verdict. See United States v. Hernandez,
The government may demonstrate an effect on commerce by proving that a robbery resulted in the closing of a business engaged in interstate commerce. See United States v. Vega Molina,
[9] To demonstrate this effect on commerce, the government had to show that the gas station was engaged in interstate commerce and that Flores’ murder caused the station to close. See Vega Molina,
To establish that Flores’ murder was the cause of the gas station’s closing, the government offered the testimony of Flores’ employee, Alex Lugo-Rodriguez. Lugo testified that he worked.at the gas station the day before the murder and that, when he arrived for work the next day, the gas station was closed and he learned that “something had happened” to Flores. According to Lugo, the. gas station did not subsequently reopen.
While there was no direct testimony that Flores’ murder caused the gas station to close, Lugo’s testimony provided strong circumstantial evidence to that effect. The timing of the closing—the day after the murder—coupled with its permanence, allowed the jury to conclude that the murder caused the closing.
The government also presented adequate evidence to prove that the robbery depleted the gas station’s assets. Depletion of the assets of a business engaged in interstate commerce is a common method for demonstrating that a robbery had an effect on interstate commerce. See Rodriguez-Casiano,
There was testimony that the stolen money consisted of the gas station’s daily receipts which, as was his custom, Flores stored in his kitchen cabinet. From this testimony, the jury could have reasonably determined that the robbery reduced the gas station’s revenue by $600, thereby depleting the assets that station had available to participate in interstate commerce. See Capozzi,
Moreover, even if one of the government’s effect on commerce theories was inadequate to independently trigger the Hobbs Act, the effects taken together suffice to establish federal jurisdiction. The government proved that, as a result of Jiménez’s conduct, the assets of a business engaged in interstate commerce were de
B. Use of a Firearm
On the use-of-the-firearm count, the jury found Jiménez guilty “as charged” in the indictment. Jiménez contends that this general verdict was ambiguous as to whether the jury convicted him of using a firearm in connection with a violent federal felony that resulted in a death, 18 U.S.C. § 924(j)(l), or of the lesser-included offense of using a firearm in connection with a violent federal felony, see 18 U.S.C. § 924(c)(1)(A). He argues that the district court erred by assuming that he was convicted of the more serious charge. This argument was not raised below, and therefore we review it for plain error. See Fed. R. Crim P. 52(b); United States v. Taylor,
We look to the indictment and jury instructions to interpret the verdict. See United States v. Cannon,
[Jiménez and others] aided and abetted by each other did knowingly, wrongfully and unlawfully use and carry a firearm during and in relation to a crime of violence which is a felony that may be prosecuted in a court of the United States, that is, to affect interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a)(2) and in the course of the violation to Title 18 U.S.C. § 924(c)(1)(A) the defendants caused the death of Carlos Flores-Rodríguez, through the use of the firearm.... All in violation of 18 U.S.C. § 924(j)(l).
The indictment unambiguously charged Jiménez with violating § 924(j)(l). It also, as a matter of law, charged him with the lesser-ineluded offense of using a firearm during a federal crime of violence in violation 18 U.S.C. § 924(c)(1)(A). See United States v. Motley,
While Jiménez’s indictment included the lesser-ineluded offense, no Iesser-included-offense instruction was given to the jury. The court instructed that Jiménez was charged with “aiding and abetting others in using a firearm during and in relation to a crime of violence; specifically that crime of violence being to affect interstate commerce by robbery and in the course of that offense unlawfully causing the death of Carlos Flores-Rodríguez.” (Emphasis supplied). In light of this instruction specifically referring to Flores’ death, and the absence of a lesser-ineluded offense instruction, the court did not plainly err in interpreting the jury’s verdict as constituting a conviction under § 924(j)(l).
Jiménez next contends that his Sixth Amendment right to confront witnesses was infringed by limits placed on his cross-examination of a government witness. He concedes that our review is only for plain error.
Jiménez complains that he was not permitted to effectively cross-examine the Texaco general manager who testified concerning the interstate commerce engaged in by Flores’ gas station. On cross-examination, Jiménez attempted to ask about the amount of intrastate business that the gas station conducted to show that the station’s “economic production was not ... significant [enough] to affect interstate commerce.” But after several questions, the district court ruled that the amount of intrastate business performed by the gas station was not relevant to whether the gas station participated in interstate commerce.
Under the Sixth Amendment, a defendant is entitled to cross-examine a government witness. See United States v. Gonzalez-Vazquez,
There was no plain error in preventing Jiménez from questioning at length about the amount of intrastate business conducted by Flores’ gas station. The evidence firmly established that the station made substantial out-of-state purchases of gasoline. Testimony about the station’s intrastate business was of, at best, marginal relevance, given the extent of its out-of-state business. See supra at 8. The court therefore reasonably curtailed Jiménez’s questioning on this issue. See United States v. Callipari, .
D. Closing Argument
During closing argument, Jiménez’s counsel made the following argument:
[T]he sufficiency of the evidence is another matter that is important in this case because you have to find sufficient evidence to convict the defendant.... . There is a lot of evidence that has not been introduced with [respect to] Hector Jiménez-Torres. There is a lot of evidence that has not been brought before you that would have been very good for you to see for example the machete. Where is the machete? Did it have fingerprints? Did someone have it and then place it elsewhere? Where [are the coconspirators]? Not here. They could have taken the stand and said yes [Jiménez] was there.
At the conclusion of this argument, the government interrupted and said, ‘Your honor, counsel had the same opportunity to call these witnesses.” The court responded, “That is correct ... [The] defendant has a right to request the court, if you cannot pay for those witnesses to
Jiménez contends that these statements suggested that he should have called the absent witnesses and thereby impermissi-bly shifted the burden of proof to him. He did not raise this issue below, and we therefore review the claim for plain error.
This argument satisfies the first prong of the plain error test as the comments were improper. Attorneys may not argue that the jury should draw an inference against an opponent where the opponent does not present witnesses that are available to both parties. United States v. Johnson,
This case is similar to Diaz-Diaz. Jiménez’s counsel identified a series of witnesses that the government did not call to argue that the government had not presented sufficient evidence to warrant conviction. Like Diaz-Diaz, counsel’s argument was not aimed at having the jury draw a negative inference against the government but rather to argue that the government failed to prove its case. It was therefore incorrect for the government and the court to state that Jiménez could have called the absent witnesses.
While Jiménez has established error, he has not demonstrated that the error was clear or obvious. See United States v. Patel,
Furthermore, Jiménez has not demonstrated that the error affected his substantial rights. See United States v. Padilla,
E. Supervised Release
The final issue concerns the conditions of Jiménez’s supervised release. The district court delegated to a probation officer the power to determine the number of drug tests to be performed and the type of drug treatment, if any, that Jiménez should receive. Jiménez did not object to this condition. Therefore our review is again for plain error. Citing a prior panel decision of this court, United States v. Meléndez-Santana,
Since the government made its concession, however, our law regarding unpre-served Meléndez-Santana errors has changed. Sitting en banc, we have recently held that a defendant raising an unpre-served Meléndez-Santana error on appeal does not automatically satisfy the plain-error standard. See United States v. Padilla,
For the reasons stated in Padilla,
III.
For the reasons stated, we affirm Jimé-nez’s conviction and sentence.
Notes
. If successful, Jiménez's argument would also require reversal of the derivative firearm conviction because proof of the Hobbs Act violation was an element of that offense. See United States v. Wang,
. The Hobbs Act defines "commerce” to include commerce among United States territories. See 18 U.S.C. § 1951(b)(3).
. At oral argument, Jiménez suggested that only the consequences flowing from the robbery (and not the murder) could be considered in measuring the effect on commerce. According to Jiménez, because the robbery itself did not result in the closing of the gas station, there was no effect on commerce. We disagree. Both the murder and the robbery violated the Hobbs Act, and each may be considered in determining the effect on commerce. See Vega Molina,
. Jiménez also challenges the district court’s ruling preventing him from asking the general manager to explain her comment, made on direct examination, that the gas station had not been open every day in the period preceding the murder. Jiménez asked this question to highlight the limited, business that the gas station was conducting before the robbery. For the reasons discussed above, it was also not plain error to prevent Jiménez from pursuing this line of questioning.
Concurrence Opinion
(Concurring).
I write separately, because although both the majority and I are required to affirm Jiménez’s conviction by reason of binding circuit precedent,
The unvarnished facts in this case are as follows: Jiménez and five other cohorts were “look[ing] for houses to rob.” See Government’s Brief at 6 (emphasis added). The group’s leader randomly chose a house, which they then proceeded to break into. Once inside, they found the owners of the house, husband and wife, asleep in an upstairs bedroom. Thereafter, two of the burglars forced the husband downstairs to the kitchen at gunpoint. Jiménez remained upstairs with the wife. While there, he heard a series of shots emanating from the downstairs area. One of the burglars had shot and wounded the husband, from which wounds he subsequently died. Before they left, the burglars
These facts spell out the criminal substance of this case. However, in its zeal to make this unfortunate incident into something it is not — criminal activity implicating core federal interests — the government adds the following circumstances that were revealed about the deceased husband, Carlos Flores-Rodríguez, in the course of the investigation of this local crime and which were presented as evidence in the case against Jiménez: (1) Flores-Rodríguez was the sole proprietor of a local Texaco gas station; (2) in the two months prior to the burglary, the gas station had purchased approximately 40,000 gallons of gasoline from the Hess Oil Refinery in the United States Virgin Islands; (3) on the night before the burglary, an employee of the gas station brought approximately $600 to Flores-Rodríguez at his home, which sum constituted the daily receipts of the gas station, and which Flores-Rodrí-guez placed inside his kitchen cabinet for safe keeping; and (4) the day after Flores-Rodriguez’s death, the gas station closed permanently.
Upon this exiguous thread of irrelevant evidence, the government casts a net that, if allowed to set without challenge, would elbow out large chunks of traditional state criminal jurisdiction and federalize such crimes. The issue does not relate to an ideologically charged debate about whether or not federal is better than state action. See Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 Hastings L.J. 979 (1995). The point in question is about giving validity to the constitutional dogma that establishes that, other than by constitutional exception, “the suppression of violent crime and vindication of its victims” is a power that “the Founders denied the National Government and reposed in the States.” United States v. Morrison,
The Hobbs Act states that “[wjhoever in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce, by robbery, or extortion, or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section” has committed a federal crime. 18 U.S.C. § 1951(a). Although Congress’ intent in enacting the Hobbs Act was undoubtably “to use all [its] constitutional power ... to punish" interference with interstate commerce by extortion, robbery, or physical force,” Stirone v. United States,
We are not faced here with the robbery of decedent’s local gas station, which would bring the government closer to the interstate nexus it so vehemently seeks by reason of that business purchasing goods in interstate commerce. Nor is this a case of Jiménez waylaying the decedent on his way to the bank with the proceeds of interstate sales. It is not even a case of the robbers intercepting decedent and forcibly depriving him of the local gas station’s receipts while he was on the way home. Although all of these scenarios would cause me to hesitate as to the impact of such criminal activity on interstate commerce, certainly those examples would be closer to providing the required constitutional jurisdictional nexus that is missing in the present ease. Here, all criminal activity took place in decedent’s home, the’ stolen funds had come to rest in decedent’s kitchen, and there is no evidence that Jim-énez or his cohorts even knew of their existence before decedent’s home was fortuitously picked to be burglarized. See United States v. Min Nan Wang,
Under the government’s theory of causation, if the decedent had taken the money out of the kitchen hiding place, gone to the supermarket, and been robbed of this money, shot, and killed by a person holding up the supermarket, a Hobbs Act violation could be charged since the original source of those funds was a business in interstate commerce and his business was never able to reopen after the depletion of those funds and the owner’s death. What about the hold up of a neighborhood ice cream truck selling national brand products, in which the driver is killed resisting the robber, as a result of which his estate must file for bankruptcy? Would the government blink at calling that a Hobbs Act violation? At the rate we are going, perhaps the day will come when the federal government will see fit to prosecute the robbery of a child’s roadside lemonade stand because the lemons came from California, the sugar was refined in Philadelphia, and the paper cups were manufactured in China.
I cannot agree that the federal government has the constitutional power to prosecute Jiménez for a violation of the Hobbs Act given the facts proven in this case. See Morrison,
. See United States v. Rodriguez-Casiano,
. Although, as applied to the facts of this case, this interpretation also extends the Hobbs Act beyond Congress’ intention, this issue was not raised on appeal. See United States v. Miles,
. U.S. Const, art. I, § 8 ("The Congress shall have power to ... regulate commerce with foreign nations, and among the several states” and to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”).