United States v. Leo Darryl Harrington

applicable adopted large the standards

MWC units without the standards for small America, Appellee, UNITED STATES never MWC units. EPA studied cement prior kilns to issuance of the standards and rulemaking record reveals the EPA Darryl HARRINGTON, Appellant. Leo that, issuance, knew at the time of no cement No. 96-3060.

kiln would come under the standards because none percent combusted more than 30 munic- Appeals, Court of ipal solid waste. Davis Appendix See Joint District of Columbia Circuit. 166,170-71, Hence, 231A-231B. the EPA simply was not concerned with cement kilns Argued Feb. 1997. issuing the 1995 standards and would have adopted Decided the same March standards even if cement exempted. kilns were Since severance of the

standards for small units and cement kilns impair

“will not the function of [the other ... and

standards] there is no indication that regulation passed not have been for [the]

but inclusion” of the standards for kilns,

small units and cement these standards Cartier, Inc.,

are severable. K Corp. v. Mart 281, 294, 1811, 1819, (1988).

L.Ed.2d 313 grant the EPA’s motion in full and

amend our initial opinion so that we vacate only

the 1995 they standards apply

small MWC units and cement kilns since we

agree with the EPA opinion that the Davis meaningfully

will not alter the NSPS guidelines

emission applicable large units vacating

and that large unit standards significant

will have a deleterious effect. We

therefore leave the NSPS emission

guidelines large units other than cement in place

kilns pending further action response

EPA in opinion Davis our

remand.

So ordered. argued

Thomas G. Ross the cause and filed appellant. the brief for Pings, Anne E. Assistant United States Attorney, argued appellee, the cause for Holder, Jr., whom Eric H. United States Attorney, John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attor- neys, DC, Washington, were the brief. WALD, Before: SENTELLE and ROGERS, Judges. Circuit guilty not return it could derstood by Circuit filed the Court Opinion for count un- the Hobbs verdict on Judge WALD. Act’s interstate com- it found that less Judge by Circuit Dissenting opinion filed jurisdictional requirement was satis- merce SENTELLE. abuse its discretion did the court fied. Nor a verdict with allowing the reach WALD, Judge: Circuit excused after one been eleven members jury found Leo December On cause, Rule of good because Federal criminal guilty of three Darryl Harrington 23(b) expressly autho- Procedure Criminal robbery of a armed his role counts ver- permit eleven-member courts to rizes Avenue, Georgia restaurant Roy Rogers discretion, principle no their dicts at Harrington now Washington, D.C. N.W. rule, Advisory Commit- embodied sentencing on and conviction challenges his notes, authority are any legal of which we tee First, argues the he grounds. three aware, principles of fairness or fundamental denying his motion in court erred district of this by the court’s exercise violated were the evidence acquittal because judgment of a in ease. discretion beyond a reasonable prove to was insufficient inter- robbery had affected the doubt Backgrotoíd I. had aided and that he state morning Sunday, of after 7:00 on the Just during a crime a use of firearm abetted the 25, 1995, Kennedy entered Lee Jimmie June Second, that the dis- he claims of violence. Georgia Roy Rogers restaurant the on the Hobbs court’s instructions trict D.C., jumped Avenue, Washington, N.W. be- plain error robbery constituted count handgun, and brandishing a counter over the jury to the return they permitted cause manager give him the the demanded findings that of the guilty basis verdict money safe. After from the restaurant’s applica- for a constitutional inadequate are cash, including paper gave him manager Harrington alleg- Lastly, of the statute. tion coins, safe, Ken- money rolled and discretion court abused that the district es this was As all nedy the restaurant. left verdict with jury to reach a by permitting restaurant, uni- two inside happening members, ex- juror had been after a eleven waiting happened police officers formed reject these chal- cause. We for good cused place Metropolitan Police ear in a marked Harrington’s convictions lenges, affirm and drive-through at the restaurant’s an order sentencing. and Kennedy noticed that The officers window. Harring- denying not err in The court did something startled clutching and seemed was acquittal be- judgment of for a ton’s motion way out of car on his police when he saw money showing that the the evidence cause drive-through restaurant, they so left of as a result lost and stolen car. When followed him fine and involved inter- have otherwise been house, officers Kennedy one neared support was sufficient state transactions there; Kennedy then if he him lived asked in- robbery affected that the the conclusion house’s across the gun and bolted drew his Furthermore, evidence terstate back at the firing shots backyard, several co-defendant Jim- Harrington helped his of them. wounding one slightly and officers police and Kennedy escape from the mie Lee waiting for Meanwhile, Harrington was time robbery during which complete the Roy blocks from Kennedy and a half one it at weapon and fired Kennedy brandished 4-Runner, with the Toyota in his sup- Rogers was sufficient police officers pursuing to the Kennedy ran running. engine After and he had aided port the conclusion in, got still gun drawn and with his during vehicle Kennedy’s use a firearm abetted him, Harrington pursuing officer firing of violence. to a crime and relation through the chase away. high-speed A drove jury on the Hobbs to the court’s instruction ensued, only po- after ending neighborhood plain constitute robbery count did not Toyota the road Harrington’s off as a lice forced of the trial error record point, signal pole; at that a traffic un- and into must jury that the whole indicates Toyota Kennedy jumped out of the and did not regard meet standard with officers, pointed gun at one of the but two of the three counts of which he was him knocked down with his another officer government’s convicted. find that Harrington jumped out of the car. crashed support guilty evidence was sufficient to fled, Toyota pursued by police verdicts, and two cars and thus the district court did not lights flashing. with their When one of the denying Harrington’s err motion for a pointed gun officers at him and ordered judgment acquittal. stop, Harrington

him to was arrested. Sufficiency the Evidence jury A grand Harrington indicted on Au- Ef- on Interstate Commerce 9, 1995, gust aiding abetting and a rob- fect bery in violation 18 U.S.C. ground Harrington The first on which 1951(a) 2, aiding abetting § the use insufficiency government’s claims evi during of a firearm and in relation to a charge aiding dence involves the and abet crime of violence in violation of 18 U.S.C. ting robbеry. Harrington alleg a Hobbs Act 924(c) resisting § police officers es that prove failed to 22-505(a). § in violation of D.C. Code Ann. sufficiently was connected Harrington tried before justify imposition commerce to 21, 1995, December 18 and December against power. him of the federal commerce 12, 1996, April convicted on all counts. On States, 212, See Stirone v. United 361 U.S. Harrington the court seventy- sentenced 218, 270, 273-74, 80 S.Ct. 4 L.Ed.2d 252 prison in seven months on the Hobbs Act (1960) (noting that represents the Hobbs Act count, sixty prison months in on the an exercise of the in enumerated 924(c) count, § twenty firearm and between Commerce Clause of the United States Con sixty prison months and months for resist- stitution). The Hobbs Act it makes a federal officers; ing police the sentences on the rob- ], delay[], crime to or affect[] “obstruct bery consecutively and firearm counts to run commerce or any the movement of article or concurrently to each but with the sen- commodity commerce, by robbery or ex resisting police tence for officers. tortion,” 1951(a), § 18 U.S.C. and defines “commerce” as “commerce within the Dis II. Discussion Columbia,1 trict any Territory or Pos States; session of thе United all commerce A. The District Court’s Denial of Defen- State, any point Territory, between in a Pos Judgment dant’s Motion a Acquit- session, or the District of Columbia and tal thereof; point outside all commerce between Harrington’s challenge first in this points within the through any same State appeal is to the district court’s denial of the place State; outside such and all other com judgment motion for a acquittal made at jur merce over which the United States has government’s the close of the evidence. We 1951(b)(3). § isdiction.” 18 U.S.C. a review trial court’s denial of such a motion novo, considering de light the evidence in Although Harrington on brief asserted government most favorable to the and deter that under Lopez, United States v. 514 U.S. whether, read, mining 549, 1624, so it (1995), is sufficient to 115 S.Ct. 131 L.Ed.2d 626 permit a rational trier of fact to all government find required was to show that beyond the essential elements of the crime a had a “substantial” effect on reasonable doubt. Virginia, See Jackson v. justify application commerce to 307, 319, 2781, 2789, 443 99 S.Ct. 61 of the Hobbs see Brief for Defendant (1979); Lucas, L.Ed.2d 560 18, United Appellant States v. argument at at oral he ac- (D.C.Cir.1995). 956, 67 F.3d ‍​​​​​‌‌​‌​​​​‌​​‌‌​​‌​​​‌​​​‌​‌‌​‌​​‌‌​​​‌‌​‌‌​​‍959 knowledged The defen authority his lack of for this government’s dant claims that the proposition ques- and focused instead on the government acknowledges might The tionale because the was not instructed in pled jurisdiction Hobbs Act based on Con- jurisdictional theory. accordance with this See gress’ plenary power over the District of Co- Appellee Brief for at 21 n.12. lumbia, but does not seek affirmance on this ra-

1465 itself, in discussion Lopez opinion had succeed- of whether tion jurisdictional ele- that a central role “merely specula- showing more than ined of a application play in the valid can ment robbery of the tive” connection statute, clearly does not as- criminal federal com- and interstate Rogers restaurant Roy on interstate effect “substantial” that a sume merce. Id. setting. such be shown commerce need suggested that Indeed, specifically the Court nearly unani agree with ap- justify the could jurisdictional element courts those federal judgment mous single power to a of the commerce plication challenge after type of have reviewed in- the inevitable despite рossession, firearm court for a question proper Lopez, that one-time, small-scale substantiality of such in was the evidence reviewing a claim that com- of interstate perspective from the event “juris satisfy a statute’s federal sufficient 115 at Lopez, merce. See the evi whether remains element”2 dictional (noting that at 1631 S.Ct. “explicit” to show sufficient dence was “ensure, case-by-ease through element could commerce, Lo effect on interstate “concrete” ques possession firearm inquiry, 1631, at -,-, at 115 S.Ct. pez, 514 U.S. commerce”). And im affects tion See, one. 1634, a “substantial” than rather requiring a “sub explicitly mediately after Atcheson, F.3d 94 v. e.g., States United on interstate stantial[ ]” effect - U.S. -, denied, (9th Cir.), cert. 1242 un activities purely intrastate regulation of (1997); 229 137 S.Ct. 117 Lopez, generally, Clause der the Commerce Bolton, 68 F.3d States at -, Court S.Ct. - U.S. -, denied, (10th Cir.), cert. word “substantial” not to use the careful (1996); United 133 L.Ed.2d required describing the interstate (7th n. 2 Stillo, 57 F.3d element. statutory jurisdictional satisfy a - U.S. -, denied, (“[The Cir.), Gun- cert. id. See (1995); v. juris- States 383, 133 express United 306 has no Act] Zones School Free (D.Mass. 479, reach might 482 limit its which Pettiford, F.Supp. 934 dictional element possessions WL Wong, 1996 of firearm 1996); v. set States to a discrete United with or (N.D.Cal.1996); v. explicit connection 225007, United States ... have an *6 effect added). commerce.”) (N.D.N.Y. (emphasis 580, on interstate Arena, 584-85 F.Supp. 894 Farmer, 73 v. 1995); States also United see decided Clause eases Two other Commerce - denied, (8th Cir.), 836, cert. 843 F.3d as same term Supreme Court by the 2570, 1086 135 L.Ed.2d U.S. -, that the conclusion support our Lopez further applica (1996) Lopez “has no (holding apply requirement does not “substantiality” establishments,” quantum commercial determining what tion to eases in the context statutory of an is part satisfy Hy-Vee required store to as such of evidence stores); but jurisdictional see elements. chain interstate interstate commerce 910, in Lopez, 923 F.Supp. before Woodruff, half months v. 941 and a Three States Dobson, 513 (“Given (N.D.Cal.1996) Lopez [United Cos. Terminix Allied-Bruce (9th 753 834, 265, 130 L.Ed.2d 522 F.3d S.Ct. Pappadopoulos, [64 115 U.S. v.] Su- the Alabama (1995), reversed Cir.1995) minim[i]s the Court ], that the de appears it holding that connection preme Court’s past approach contract termite-extermination longer good inquiries is no jurisdictional slight to was too and interstate law_”). question affects possession in firearm statute in a federal "jurisdictional A element” S.Ct. 115 Lopez, 514 finding commerce.” requires a provision which factual ais example Lopez offered Court at 1631. The jurisdiction in of federal justifying the exercise making ait statute provision the former of such application of the any with individual connection “receiv[ej, posses[s], case, for a felon federal crime Lopez which dealt statute. affecting com or transporft] in commerce possession of fire- regulating the federal statute (quoting United Id. any firearm." any merce arms, such ... the absence noted Court 515, 337, Bass, S.Ct. 92 States v. jurisdictional element which statutory (1971)). 30 L.Ed.2d "ensure, inquiry, that the through case-by-case justify application of the Federal Arbitra- enterprise didn’t matter whether the “sub- § by which stantially tion 9 U.S.C. its terms affeet[ed]” interstate evidencing applied to “contract a trans- Id. involving action commerce.” Id. The Court bracketing Lopez, As these cases sufficiency of the dealt with the presents the one we deal with here an inter support jurisdictional of this element one state nexus that was demonstrated at trial

paragraph, noting that “[i]n addition to the pursuant statutory jurisdictional to a ele multistate nature of Terminix and Allied- ment. The evidence showed that the rob Bruce, termite-treating house-repair- bery interfered with a set of transactions ing material used Allied-Bruce in its ... imagination could no stretch of the carry efforts to out the terms of [Termite mirastate,” “purely labeled but rather con Plan, Protection] came from outside Ala- stituted interstate commerce itself. Robert at-, bama.” Id. 115 S.Ct. at 843. Five son, 514 U.S. at 115 S.Ct. at 1733. days Lopez, Supreme after Court issued specific Witness the transactions that per a terse curiam decision in United States Robertson, interrupted: robbery, But for the (1995), least several hundred dollars more cash reversing 131 L.Ed.2d 714 a Ninth transported would have been Circuit from the Dis decision which in turn reversed a Maryland trict of Columbia to deposit conviction Racketeer Influenced (“RICO”). Maryland bank, Corrupt Organizations money and much of Ninth would then have govern- The Circuit had held that been used restau rant’s parent ment failed at trial to North Carolina company introduce sufficient mine, prove purchase evidence to that an gold beverages Alaska food and Georgia, Carolina, pro- which the defendant had North Virginia, invested the West and Idaho for transactions, illegal drug to, ceeds of delivery by, and sale individual restau “engaged in or affect[ed] interstate com- rants in forty located states. See The infra. required by merce” as jurisdic- statute’s specifi Hobbs Act’s element is at-, tional cally element. Id. designed guarantee prose each (quoting Robertson, United States v. separate, independent F.3d cution is a application (9th Cir.1994)). Supreme Court the commerce regulate specifi — thought unnecessary cally, even to protect3 “consider” the commerce it —interstate question of gold self, whether the activities of the rather than intrinsically some local activ mine “affected” ity be- that must be found to “affect” interstate “affecting cause the prop- commerce” test is portions commerce. Thus the of Commerce erly only invoked when the Clause doctrine that justify are invoked to being regulate used to “purely regulation mirastate federal of mirastate activities commercial activities that nonetheless have which аre not themselves interstate com effects,” substantial interstate such as directly the merce are not point. Even cases activity growing of wheat at home for one’s such as Heart Atlanta Motel v. United of consumption. at-, States, own 241, Id. 115 S.Ct. at 348, 13 379 U.S. 85 S.Ct. L.Ed.2d (citing Filburn, (1964) 1733 Wickard v. 317 U.S. and McClung, Katzenbach v. 111, 82, (1942)). Thus, 63 S.Ct. 294, 377, 13 87 L.Ed. 122 (1964), 85 S.Ct. L.Ed.2d 290 the RICO conviction was sound because the which Congress’ power affirmed protect to government had introduced sufficient evi interstate commerce from the interference satisfy jurisdictional dence to statute’s discriminatory caused practices of a criminalizing element the investment of rack travelers, business that served interstate see eteering proceeds in enterprises “engaged Motel, 261, Heart Atlanta 379 U.S. at of in” 359-60, and the Court ex S.Ct. at and another that sold food pressly declared that states, such purchased Katzenbach, situations it from other see “ regulate,’ ‘To public large.” [in sense intended and of the at Mondou v. New Clause], foster, control, protect, York, Haven, Commerce Co., is to New & R.R. 223 U.S. Hartford restrain, appropriate and regard with 1, 47, 169, (1912). 32 S.Ct. 56 L.Ed. 327 welfare of immediately those who are concerned powers to Congress’ of limitation pies” aof are 85 S.Ct. 379 U.S. —the Constitution, those enumerated unlike the because genre, different authority state and between the division regu- those eases applied in statute preservation of and the governments, federal activity without categories of entire lated sovereignty. Lopez, state areas traditional nexus showing an interstate required Thus at 1626. 115 S.Ct. Katzenbach, 379 See case. any individual appellate courts had Lopez, even before 382-384, 302-03, under the ‍​​​​​‌‌​‌​​​​‌​​‌‌​​‌​​​‌​​​‌​‌‌​‌​​‌‌​​​‌‌​‌‌​​‍convictions struck down (“The (1964) appellees contend present to suffi failed where the arbitrarily a con- created Congress has jurisdictional satisfy the cient evidence all restaurants presumption clusive only impermissibly at elements, or offered ‘affect in the Act set out meeting the criteria the activities tenuated connections they object way, another Stated commerce.’ underlying convictions case-by- for a provision aof omission to the See, Quig e.g., United States commerce. racial discrimina- ... determination case Cir.1995) (8th (addressing an ley, 53 F.3d 909 com- affects restaurant particular in a tion based on alleged interstate merce.”). Motel Like Heart Atlanta robbery of defendants’ the claims differ- is also Katzenbach, Lopez decision victims, prevented the had individuals two Lopez the at bar because the ease ent from beer, buy way to on their had been who regu- attempt Congress’ reviewed Court involving a com a transaction completing 1,000 feet guns within possession late all com modity had traveled statutory juris- including a without of schools the victims merce, selection of that the critical The difference is element. dictional group membership in based their state adequately protect in order because group from of that discourage all members that a ensure Congress must police powers, in store, rejecting this patronizing the purely local of a regulation non-partieularized theo of these neither because terstate nexus activi- fact that the justified activity is probability realistic demonstrated ries has aggregate, individually or in the ty, commerce)4; on interstate actual effect an on interstate effect “substantial” (5th Collins, 40 F.3d 95 of inter- Otherwise, randоm instances a few - U.S. -, denied, Cir.), cert. regula- justify be used could state effects (1995) (addressing an L.Ed.2d 873 transactions of intrastate a multitude tion of based on commerce nexus alleged interstate of a In the case interstate effects. no anof that the defendant’s claims element, howev- awith statute clothes, cash, jewelry, cellular individual’s er, alone on case stands each prevented and automobile telephone, exist, does specific effect that a concrete computer a national victim, employee of authority sug- controlling no can find and we get using the car company, from that, as to require must courts gesting telephone to using the meeting and business scenario, rather “substantial” factual each rejecting this inter calls, and make business com- on interstate effect “concrete” than a attenuated,” it was “too state nexus shown. merce be “ubiqui Act make the would and Buffey, 899 F.2d tous”); that us States Lopez reminds United Nonetheless Cir.1990) (addressing alleged an (4th be must jurisdictional statutory elements the nexus based they must commerce case interstate seriously each taken —in relаtively to extort conspiracy “explicit that a showing an claim by evidence satisfied wealthy indi money from com amount on interstate small or effect connection embarrass threatening to release vidual Lopez, 514 U.S. merce.” depleted of the victim ing tapes statuto way can these Only in that at 1631. company which the assets purpose intended their ry serve provisions controlled, rejecting this inter- and victim princi- the “first Lopez Court’s the protecting holding on its not base Quigley court did day Quigley the the Eighth decided Circuit 4. The Lopez. refer to cite or it did not Lopez, but since after that assume it safe to Lopez opinion, we think the state nexus because the victim would have [I]ncidentally, [the going is] case to include paid money personal of his assets); the out some evidence may that not be thrilling too Mattson, (7th 671 F.2d 1020 because there’s one element of this Hobbs Cir.1982) (addressing alleged you that should know about. based on claim It’s robbery that the that interferes with interstate payment defendant’s of a bribe to a Demo- precinct captain, cratic in exchange for which you’re going So to have to learn precinct captain promised help Roy Rogers operates restaurant in inter- defendant win contract, a construction affect- state commerce and in- ed interstate in building materials terfered with interstate commerce.... depleted or assets the interstate com- part [T]hat is of our proof burden of in this pany that owned the building, rejecting and case. this interstate nexus defendant (“Tr.”) Transcript At tri- 12/18/95 27-28. paid the personal funds, bribe out of his al, government Sylvester Bradley, called purchase because the building materials manager, restaurant’s who described how from other states regardless would occur Harrington’s partner jumped had over the whether the company defendant’s were to counter and him forced money hand over contract). obtain the These pre-Lopez cases from the restaurant’s safe. Bradley also tes- show element of the tified that he closed the restaurant for three Hobbs Act has as much meat on its bones hours in protect order employees, as- any other juries element aof crime that must certain how much money taken, had been beyond find a reasonable doubt they before employer and tell his robbery, about the can guilty return a Stirone, verdict. See also the shutdown during occurred a time when (“Neither U.S. at 80 S.Ct. at 273-74 usually restaurant was very busy, and [element of a surplusage crime] is thirty two dollars was still missing after and neither can be treated as surplusage. police returned they what recovered from charge that interstate commerce af- Harrington Kennedy. Tr. 12/19/95 fected is critical since the Federal Govern- 10-12. The then Jeffrey called jurisdiction ment’s of this crime only rests Wells, the district manager for Hardee’s interference.”). Thus, to return guilty (“Hardee’s” Systems Food or Compa- “the verdict federal juris- statute with a ny”), the North Carolina-based owner of the element, dictional jury must have had Rogers Roy restaurant. Wells testified that sufficient evidence to find that cash receipts restaurant’s are regularly obstructed, commerce was delayed, or affect- picked up by an car deposited armored ed without resorting to excessively strained bank Maryland, and that Hardee’s guesswork. inferences profit used from particular Roy Rog- We believe that in this cаse the restaurant, ers as well as others located in sufficient evidence to support its conclusion forty states, about to buy soda Georgia that the robbery in which Harrington partici- Carolina, and North chicken from West Vir- pated “obstruct[ed], delay[ed], or ginia, affect[ed and french fries from Idaho. Id. at interstate] as required commerce” under the 29-30. The plumbing, electrical, restaurant’s

jurisdictional element of the Hobbs equipment repair services are based in 1951(a). § U.S.C. reject therefore Maryland, Har- approximately forty percent rington’s challenge based on alleged in- of the restaurant’s customers live in other sufficiency of government’s proof of an Finally, states. Id. Wells testified that interstate nexus. opening statement, some of money stolen from the victim (sensitive government the to possibility the Roy Rogers restaurant, as well as some of that jury might the testimony find about the the receipts lost because of the three-hour nexus interstate less exciting (which than the testi- shutdown he estimated at to $800 mony describing a high-speed $1,100) chase and would have been used purchase to shootout), pronounced the food, essential nature of beverages, repair and maintenance that nexus: 30, services. Id. at 33. The court instructed shipments of sand. the interstate stopped ele- nexus interstate regarding the jury the purchase victim’s Thus, in fact although the as follows: count Hobbs the ment of not state had been the from outside of sand in- “obstructs, delays affects or term The that “the held the Court stopped, or slowed any action means commerce” terstate find that commerce jury was entitled to trial any degree or to any manner which by [the blockage a such from was saved with, alters the changes or interferes defendant’s] [the with compliance victim’s] flow of or transportation or movement demands”; finding illegal such coercive prop- merchandise, money or goods, application the predicate for adequate anwas It is not commerce. erty in interstate to free “[i]t was of Hobbs the to show that government necessary the burdens such destructive commerce from specifi- intended offender principal the at Id. passed.” Act was the Hobbs that interstate obstruct, or affect delay cally v. See also at 272. 80 S.Ct. necessary as to this that is All commerce. Robertson, 669, -, 115 S.Ct. government’s is that issue (1995) (holding that 131 L.Ed.2d intended principal offender that prove was satisfied RICO jurisdictional of element statute the by an act forbidden commit the defendant had showing that by evidence be to would of which consequences natural activity in illegal an of proceeds invested obstruct, delay or affect interstate engaged in was enterprise that at Tr. 12/20/95 Co. commerce); Bruce-Terminix Allied evidence, jury cer- all this Armed Dobson, 513 U.S. robbery affected find that tainly could (1995) (holding that the 843, 130 of al- sort without interstate Federal Arbitra element to reverse courts appellate led chemy that nature of multistate tion was satisfied just de- in the cases Act convictions Hobbs contract, into a company entered disputed facts relying on Without scribed. pur company’s use materials by that rationales, speculative or or dubious complete its from various states chased securely conclude could contract); United States duties the restau- from thirty dollars over removed 415, 420-21, Green, another prevented receipts and cash rant’s (1956) (rejecting as 525-27, 100 L.Ed. from dollars or a thousand hundred several holding that court’s a lower “clearly wrong” money missing in, and that coming extortion to the Hobbs Act apply the interstate would, of a series first employees employer an money from deposited transactions, definitely have been of federal jurisdiction extend would itof bank; some after that Maryland in a beyond Congress power of and the courts restau- by the undoubtedly used would observing that limits, constitutional their company to parent North Carolina rant’s protec “directed was Hobbs Act for the res- services purchase supplies injury against tion Carolina, Mary- Georgia, North from taurant extortion”). from Idaho. land, Virginia, and West con- colleague’s dissenting our credit approved of We Supreme Court In Stirone not be con- Clause that the Commerce cern a defen- Act to of the application federal give the way in such con- strued money extorted who had dant police general on supplier, based crete local, non-com- to purely even extend would hypothetical to, although more quite similar traditionally Stironе, which activities mercial See than, shown here. the one conclude, states; we of the concern been 214-15, at 271-72. fed- disruption of the however, such no extortion of the the victim noted Court application by this threatened eral balance from outside of sand shipments depended punish obstruction Act to if he had and observed state robbery. transactions demanded, specific illegally money pay the refused holding the under- rest our do not hin- have been would business victim’s “engaged defendant standing that the have slowed dered, in turn which interstate commerce” participated when he crime in Harrington participated which was robbery restaurant, of the see robbery dissent entity of a commercial which was 1475; rather, ing opinion rely at we on the engaged in interstate Even itself undisputed fact that the restaurará was en Judge Ebel’s dissent in United States v. gaged commerce, in interstate and we hold (10th Zeigler, Cir.1994), 19 F.3d 486 pro- Hobbs was properly applied Act totype colleague’s dissent, for our poses no protect here punishing that commerce evidentiary standard for an interstate nexus delay through obstruction robbery. which cannot be satisfied in this case. Cfi Stirone, 272; See at 80 S.Ct. at dissenting opinion at (citing Zeigler Mondou, S.Ct. 173-74. dissent). Judge argued Ebel that a de min- rely Nor do proposition we on the that this depletion imis of a business’ assets cannot application of the Hobbs Act falls within the itself be assumed to affect interstate com- power totality because the of all merce simply because engaged the business may, Hobbs robberies in aggregate, in some interstate commerce. Here there (or affect) affect “substantially” interstate was much more: The evidence showed dissenting opinion commerce. See at 1475. robbery resulted in the removal Where between federal statute $1,000 much as from an bank interstate and interstate commerce proved must in transfer, and plethora thereafter from a application statute, each Wickard’s transactions, further interstate supra, by see “aggregation” designed doctrine —which causing the restaurant irretrievably lose extend cases receipts it would during have taken in which specific the evidence to each individual normally-busy period three hour during may ease be insufficient to demonstrate the which it was closed.5 of an existence interstate nexus —is unneces Because the ample had evidence sary. Robertson, See from which to conclude that robbery (holding at 1733 that Wickard was in Harrington which participated “obstruct[ed], applicable to a case in which a federal statute delay[ed], or affect[ed] commerce or the with a applied element was movement of commodity article or regulate activities). commerce” removing blocking cash Acknowledging as well colleague’s our receipts that deposited been in a insistence that an interstate nexus must not Maryland bank and in a used number of rely on regulated connections between the transactions, other interstate reject we Har- activity and interstate commerce that are rington’s challenge to the sufficiency of the attenuated,” “too dissenting opinion at 1476 underlying evidence the interstate nexus ele- Collins, (quoting 99), 40 F.3d at we find that ment of his Hobbs Act conviction. of an interstate nexus in this clearly case requisite satisfies standard 2. Sufficiency the Evidence that Har- proximity. Collins, the Fifth Circuit rington Aided and Abetted Use struck an down application of the Hobbs Act a Firearm against a robber who accosted individual at the private home, victim’s Harrington’s and stole challenge next to the personal property. victim’s sufficiency See id. at 97-98. evidence relates to his con The interstate nexus was viction for aiding held to be abetting there his partner stretched too thin bridge Kennedy in the use of during a firearm the gap in an violence, individual’s relation to a crime of in violation private home and commerce, 924(c) §§ based of 18 U.S.C. and 2. Harrington solely on the fact points the victim was em out that sitting he was in his vehicle ployed by company engaged some Kennedy while restaurant, inside the By contrast, transactions. and asserts that he did not and could not note, however, 5. We that the Act does not would apply to a restrict itself to the "obstmct[ion]” of interstate changed timing of an interstate commercial applies but as well to robberies dissenting opinion transaction. at 1476. Cf. “delay[]” commerce; thus, or "affect[]"

1471 all this after he robbery, and did plete “aсtively employ” the Kennedy would that know gun pursuing po- Kennedy firing his robbery. He saw in the course weapon his reject claim that the his infer lice officers —we jury could the the most argues that to find him evidence Kennedy jury insufficient he knew the evidence was abetting partner in himself, aiding and his guilty of weapon to “embolden” carried the during a crime of vio- weapon a the use of application the for predicate insufficient 924(c) lence. Supreme Court’s under the section - States, Bailey United v. decision Jury to the Instructions B. The Court’s (1995). L.Ed.2d 472 133 aiding and for a conviction sustain willWe claims Harrington raises several of a carrying or use abetting principal’s jury to the were the court’s instructions 924(c) jury only if the under section firearm chal he raises these inadequate. Because showing that presented with was appeal, on we review lenges the first time for practical certain to a “kn[ew] defendant the error,” Fed. “plain jury the instructions weapon would “use” principal ty” that the 52(b), will re meaning we R.CRIM.P. 924(c). by section ways prohibited in the only if ground on this the convictions verse Powell, 728 929 F.2d v. States United or obvious error they clear contained (D.C.Cir.1991). the trial. See United the outcome of affected (D.C.Cir. Clarke, 24 F.3d 262 v. States question reach the not We need 1994). jury in determining whether conclude jury could the precisely what erroneous, consider plainly we struction Kennedy’s knowledge of Harrington’s about trial, arguments the adduced at “the evidence in the restau gun while use intended jury counsel, of the entire and the content robbery did not end when rant, because the Sayan, 968 v. United States instruction.” The Hobbs Kennedy left restaurant. (D.C.Cir.1992) (quoting United 60 F.2d obstruction, delay, affecting or prohibits Chun-Yin, 444 F.2d v. Chan States specifying “robbery” ‍​​​​​‌‌​‌​​​​‌​​‌‌​​‌​​​‌​​​‌​‌‌​‌​​‌‌​​​‌‌​‌‌​​‍without by commerce Whoie, (D.C.Cir.1992) (citing States United robbery should an individual when precisely (D.C.Cir.1991))). 1481, 1485 925 F.2d we and therefore complete, considered robbery to answer law of the common look challenge first Harrington’s States, v. United Evans question. See on the again focuses jury once instructions 1881, 1884-85, 255, 259-60, 112 S.Ct. of the Hobbs nexus element interstate (1992). According to the did not that the court complains count. He com law, robbery has not been common com “interstate jury a definition of give the in the immediate long as the robber as pleted connection adequately the explain mercе” property indicates taking aftermath com interstate and not satisfied with that he is actions his jury to merce, thereby permitted See, e.g., property. location stolen finding that guilty verdict without return a Barlow, 1245, 1253 470 F.2d on effect robbery had the “substantial” States, (D.C.Cir.1972); v. United Williams by the Su mandated (D.C.1984) (citing Bar A.2d already Lopez. preme Court (1994). In this Robbery § 2 low); 77 C.J.S. concrete, if less than even that a established case, to be Kennedy unsatisfied continued “substantial,” effect up to money stolen the location of predicate under is a sufficient arrest, manifested of his moment II.A.1., supra Part see the Hobbs getaway car attempt reach Harrington’s prong of reject third we money to a the stolen transport himself and jury challenge to the instructions place. safe two, regard to the basis. With clearly jury was Har- record indicates be no doubt there can Because guilty verdict on not to return a instructed partner abetted his rington aided and — find that it could Act count unless the Hobbs restaurant waiting him near com actually affected high-speed vehicle, in a the wheel taking then describing the res- merce, testimony thereby com- escapе police effort pattern taurant’s of interstate transactions to render a verdict with eleven members meaning concept. elucidated the of this juror The after a just cause; had been excused for jury first say heard the he challenge does not the court’s decision to “part of proof’ [its] burden of was to show juror, excuse the argues but that the court robbery interfered with interstate should then have declared a mistrial rather 27-28, Tr. then heard 12/18/95 than permitting an eleven-member verdict. testify regarding witness the transactions Under Federal Rule of Criminal Procedure for which the restaurant’s foregone and sto- 23(b), “if the court necessary finds it to ex- used, len cash receipts would have been juror just cuse a for jury cause after the has finally by was instructed the court that the verdict, retired to consider its in the discre- fourth essential element of the Hobbs Act tion of the court a may valid verdict be count robbery obstructed, was that “the de- returned remaining jurors.” Fed. layed or affected interstate commerce.” Tr. 23(b). reject R.CRIM.P. We Harrington’s at 99-100. 12/20/95 challenge arguments because his take him only so far toas judge demonstrate Harrington argues that the court would have been within his discretion in de- jury instructed the to consider as a Hobbs claring mistrial; he cannot go the final mile predicate Kennedy’s robbery of the res to show that not to do so was abuse of manager, taurant’s rather than the restau 23(b) discretion. explicitly Rule and without rant itself. He first yet asserts that this is assigns reservation the stop/go decision to another reason to find the interstate com court, discretion of the trial nothing unsatisfied, merce element jury- because the in the accompanying Advisory Committee had no connecting robbery notes, or in aware, case of which we are this individual to interstate commerce. Then cabins this in way discretion that would call he claims that this focus on robbery of an judge’s question. decision into Harring- from, individual varied or constructively argument ton’s that his trial relatively was a amended, indictment, depriving him of simple short and taken, one is well but the rights his process to due and to a fair trial. Advisory say Committee only dissenting: SENTELLE, Judge, Circuit orange juice from not Kansas that does stock the way in which that the recognize I California; in Florida or none Florida or the аpplies construes opinion court’s salt from some that does not stock California local rob- to this unremarkable Hobbs Act theory government’s other state. Under the that with the few eases bery is consistent case, Congress, passing in the of this I further questions. with similar have dealt robbery Act, of to the intended federalize applica- the construction recognize that buys Pop every Mom and restaurant by this one is now by courts and tion coffee, of state. from spices, or fruit out language of 18 the U.S.C. consistent them. That is all of 1951(a). my in because view § I dissent a most odd It me as result such dras- strikes application raises construction gone to trouble Congress as to warrant would have implications tic constitutional covering “com separate clause including of the definition more restricted I when the District of Columbia” of that statute. merce within element conviction, ev just to cover all commerce appellant’s it was about reverse therefore I am of defen- in few clauses. erywhere denial the next on the district court’s based is suffi judgment acquittal. say this odd result tempted for a to dant’s motion construction, me to a different cient lead A. Statute The theory results that “absurd on the based meaning ... giving broad robbery follow which Hobbs Act language of the statute], it make unreason a[of to the words sweeping: quite statute is legislator that the intended believe obstructs, able to way degree any or Whoever Public Citizen that breadth. include” the move- or delays, affects commerce or 440, Justice, 491 U.S. Dep’t States United commodity com- any article or ment of 2566-67, 105 2558, S.Ct. merce, ... shall be by robbery or extortion Trinity v. (1989) Holy (quoting Church not imprisoned or fined title 457, 459, States, 143 U.S. twenty years, or both. more than (1892)). However, as 511, 512, L.Ed. 226 1951(a). is defined § “Commerce” 18 U.S.C. Citi out Public Kennedy pointed Justice including “all commerce as terms broad zen, Trinity exception invoked Holy State, Territory, Pos- any in a point tool legitimate case is “a majority in that Columbia, session, District of or the long as the Court only as judiciary ... 1951(b)(3). § Id. thereof-” point outside excep limiting self-discipline acts with notes, commerce defini- majority As the applying the result of where tion situations Dis- within the “commerce tion also includes be, genuine in a language would plain However, because Id. trict of Columbia.” at 2575 absurd,” sense, id. at rely not on section government did is, it is J., concurring), that where (Kennedy, arguments, and trial, appellate in its Congress could “that impossible to conceive jury was instructed especially because result,” id. have intended theory and there- the interstate concurring). J., (Kennedy, at 2575 S.Ct. pass defen- had a chance fore never impos Otherwise, the risk runs the court theory based on Con- under a guilt dant’s This judgment. aof ing own will instead District, gress’s plenary over it says what statute a case. The not such possible basis majority rightly sets aside it what that means presume says, I must In- Maj. Op. at n.l. for affirmance. says. in- stead, power claimed federal “ tempting More still is the prin- ‘cardinal ing evidentiary standard which I believe ” Citizen, ciple,’ invoked Public that where properly should be applied in this and other “ ‘a serious doubt of constitutionality is Hobbs cases.

raised, ... th[e] Court will first ascertain whether a construction of fairly the statute is Sufficiency C. the Evidence possible by question which may be avoid- court, The district majority panel, of this ” 465-66, ed.’ 491 U.S. at 109 S.Ct. at 2572- and the few other passed circuits that have (quoting Benson, Crowell v. question on the have concluded that the dе 285, 296-97, (1932)). 76 L.Ed. 598 minimis connection to interstate commerce I would invoke that cardinal principle in this of the otherwise local aof retail case I think interpretation urged establishment is sufficient allow the Hobbs by the United and adopted by a ma- Act constitutionally apply. disagree. I jority both of panel and other circuits are, There as majority I and have both raises a serious doubt to the constitution- noted, few construing cases ality Hobbs Act in at least as applied here. this speculate context. I that it is because

B. Jury The Instruction few attorneys United States have ever been of the bold aggressive and view that Con Although appellant asserts that the district gress put intended to them the business of court in instructing erred the on the prosecuting what normally would be a main commerce, element of interstate he did not stay of the docket of the local district objection raise attor this in the trial court. There- ney fore, perhaps consideration of appellant less moment prevail appeal, on —a Columbia, District of alleged single where a “plain” error must be in the sense official serves as both the that it federal and obvious, must be loсal clear or and even prosecutor, but still of require then it relevance in choosing only will reversal if it affected the court in which brought outcome of ease is the trial. and United States v. therefore of the Gatling, 1511, (D.C.Cir. statute 96 F.3d under which it is said 1524-25 1996). However, to lie. As the Hobbs Act district court’s covers not instructions in only robbery extortion, but case are consistent and authoritative same question circuits, of arisen context, decisions other has and there. as that we have passed never one circuit question, on noted that “the I would between the conclude, unable to extortionate even I conduct writing were com majority, any may that merce error in be de minimis but instruction it must none met exacting See, that theless e.g., standard. exist.” United Lotspeich, United States v. Atcheson, States (9th 1268, (10th v. Cir.1986). 796 F.2d 94 F.3d 1237 1270 Cir. Fur - 1996), denied, thermore, cert. U.S. -, authority 117 there is holds, S.Ct. quite 1096, (1997); sensibly, 137 L.Ed.2d 229 that this places United States section denied, Farmer, (8th v. 73 Cir.), F.3d 836 equal extortion ground cert. on regarding jur - -, U.S. 2570, 116 S.Ct. requirement 135 isdictional of affecting com (1996); L.Ed.2d 1086 United States v. merce. Jarrett, Bol United States v. 705 F.2d denied, ton, (10th 68 F.3d Cir.1995), (7th 396 198, Cir.1983), cert. 201 denied, cert. 465 U.S. - -, U.S. 966, 1004, 116 995, S.Ct. 133 104 (1984). S.Ct. 79 L.Ed.2d 228 (1996); L.Ed.2d 887 Stillo, United v. States In considering what the interstate commerce - (7th Cir.), 57 denied, F.3d 553 cert. element of the prohibition extortionate S.Ct. 116 (1995); 133 L.Ed.2d 306 requires, Hobbs Act circuit, one taking ‍​​​​​‌‌​‌​​​​‌​​‌‌​​‌​​​‌​​​‌​‌‌​‌​​‌‌​​​‌‌​‌‌​​‍the United (10th v. Zeigler, States 19 F.3d 486 wording of light the Act in legislative - Cir.), denied, cert. U.S. -, history, despite concluded that the breadth of “ (1994). 130 L.Ed.2d 422 However, I do statutory phrase ‘[wjhoever any way not imply mean to that I approve of degree obstructs, delays, or affects com ” given by instructions the district court. merce ... extortion,’ Congress actually Rather, for the reasons set forth in the next protect “intended to the free flow of com section dissent, of this I require would in merce prevent exaction of unlawful structions consistent with the more demand- tribute from interstate commerce” and had

1475 in- substantially affect activity ab chain — punish whatsoever no “intent terstate com effect adverse sent some French, F.2d noted, 628 v. concede, States circuits merce.” I omitted), Cir.) (citation gen (8th “where states Lopez further 1075-76 364, 66 a substantial denied, bears regulatory statute 449 U.S. eral cert. char the de minimis (1980). 221 relation arising under instances of individual acter point dangerous, to I think Lopez, consequence.” of no that statute legitimate crossing the peril of constitutional (internal 1629 at S.Ct. concepts, to powers separation bounds omitted), upon in United relied quotations the statute wording of literal from the depart (4th *1 at WL Boyd, v. States of what conception a court’s based Cir.1997) opinion); United (unpublished Nonethe indicate. history might legislative (2nd 1093, 1100 Leslie, F.3d path perilous willing tread less, I am 1241; Atcheson, Farm at Cir.1997); 94 F.8d reading of a statute but broad a literal where 399; Bolton, 843; 68 F.3d er, F.3d at questions constitutional serious raise would However, I n. 2. Stillo, at 558 F.3d avoid construction a narrower support insufficient language find this Ben Crowell difficulty. constitutional Cf. interpretation broad government’s at 296-97. son, congressional case. to extend clause by the raised question constitutional language quoted First, I note interpretation prosecution’s breadth Maryland from quote a itself Lopez is from applica- by present clause commerce 183, 187n. S.Ct. Wirtz, 88 392 U.S. by United is illustrated Hobbs Act tion of (1968), follows 1020 20 1624, 2019 n. 549, 115 S.Ct. U.S. Lopez, 514 toWirtz quoted language case, the (1995). In that 626 131 L.Ed.2d “ in Wickard nor here ‘[n]either that effect not would that it declared Court Supreme 82, 87 Filburn, 63 S.Ct. [v. to con- as clause so commerce construe declared (1942)] Court has the L.Ed. authority “congressional vert constitutional relatively trivial may use Congress that sort power police general ... for broad excuse as an on commerce effect -, at Id. by the States.” retained private activi or of state regulation general Rather, concluded Court at 1634. S.Ct. ” 115 S.Ct. 514 U.S. Lopez, ties.’ authority includes commerce “Congress’ that n. Wirtz, at 196 392 U.S. (quoting having activities regulate those power 27). likely from I think n. at 2024 commerce, to interstate relation a substantial of regulation plenary Congress’s inclusion substantially affect that i.e., activities those the Hobbs commerce Columbia District at-, Id. commerce.” not Congress did that robbery section Act omitted). interpre- (citation That at 1629-30 inclu- plenary a similar making as itself see fairly is itself clause of the commerce tation among the states. the commerce sion actu- clause one. What broad the extent only to Rather, to act it intended Power have shall “Congress says is ally that commerce. regulate interstate power to itsof among ... regulate Commerce ... To out- retail an isolated robbery of An isolated Const, I, 8,§ cl. 3. art. States.” several nor hаs not interstate is let clause, as Nonetheless, the commerce substantial have a it to shown Supreme by the authoritatively construed commerce. on that effect power has the Congress Lopez, Court Lopez argument that and, inclu- I understand by derivative regulate taken be could quoted above first language substantially affect inter- sion, that “activities all such proposition supporting at-, commerce.” state ag- should robberies Act store, potential robbing a by Harrington, at 1630. effect minimis de so gregated I in interstate engaged not Taken consequence.” noof one “is robbing a each not he did submit would however, I quotation, further light connected one retail outlet —even local do not think is what Lopez extreme, Court give Congress police power meant. Congress did not gener- undertake a over all aspects life,” of American 514 U.S. at al regulatory scheme of armed robberies. 115 S.Ct. at (Thomas, J., concur- That the itself can (internal remain consti- ring) quotations omitted), he be- despite tutional de minimis effects of an lieved that the Court “must further reconsid- application individual does nоt answer the er” the substantial effects test. question of whether a robbery having no The Supreme majority Court’s opinion in more than de minimis effect or is constitu- Lopez, especially in light of the concurring tionally can be Therefore, covered. rather language justices, of three leads me to be- than relying on the Lopez quote first lieve that the United States’ interpre- broad sustain the constitutionality of attempted tation of the Hobbs statute is application, I would look to the quote second directing us toward constitutionally danger- and hold that “relatively trivial [if effect ground. ous I therefore would construe the any] on commerce” not should be used as an clause more narrowly, Judge as did Ebel in excuse for the broad federalization of an his dissent from United Zeigler, States v. state-governed otherwise crime. supra. As there, he noted “[a] de minimis I say would further concluding that depletion of the assets aof engaged business we should interpret the Hobbs Act less in interstate commerce does not necessarily broadly than the government argues, I am support a conclusion that interstate com- separate instructed opinions of Su- merce affected,” has been 19 F.Sd at 496 preme Court Justices in Lopez. First, (Ebel, Jus- J., dissenting), let alone that it has tice joined Kennedy, O’Connor, Justice been substantially affected. While the bank expressed his concern about exercises deposit of fed- of the restaurant in this may case eral where “neither the nor actors lighter been day on the robbery, their conduct have a commercial character” proof there no in the record from which a part least in “any conduct in this finder fact could conclude fewer interdependent world of ours has an goods ultimate of payment loss actually moved in commercial origin or consequence....” 514 interstate commerce than would otherwise at-, 115 S.Ct. at J., 1640 (Kennedy, case, have been the or that the acts concurring). In view, “if Congress at- any defendant in way substantially af- tempts extension, then at the least we fected interstate commerce. The evidence inquire must whether the exercise of national really does not support the proposition, nor power seeks to upon intrude an arеa of tradi- could really one believe any less inter- tional state concern.” Id. (Kennedy, J., con- state commerce actually occurred. No one curring). As essentially local robbery is a testified Roy Rogers parent com- activity noncommercial of a traditional pany state really passed money less or fewer concern, id. at-, (Sout- 115 S.Ct. at 1654 goods in commerce than would have been the er, J., dissenting), I read the opinion com- ease but for this robbery most, the tim- —at manding the allegiance of Justices Kennedy ing of money one transfer was changed. and O’Connor as suggesting even more being That case, I would hold that the strongly than the majority opinion written district court should have allowed the de- Chief Justice Rehnquist that applications of fense judgment motion for as a matter of law the federal criminal law activity which is at the close of prosecution’s evidence. not commerce and which does not substan- tially affect interstate commerce are at the Conclusion very least constitutionally suspect. Dissenters customarily, hope and I gener- Justice Thomas spoke still morе strongly. ally sincerely, declare that they are “respect- Noting that the language of the fully” dissenting. My dissent today espe- is clause empowers Congress only to regulate cially respectful. I recognize in dissent that “Commerce ... among the states,” several the district court and the majority of this and that the “substantial effects” test is panel are in accord with majority court-made device which “taken its logical judges who have considered question— among such unanimity is indeed, there myself. Judge Ebel judges but interpretation Nonetheless, I think suggested an a reason part wrong, In majority’s opinion.

authority cited Collins, 99-101 F.3d - denied, (5th Cir.), cert. (1995), cir- one 1986, 131 L.Ed.2d individu- robbery of an declared cuit telephone, clothes, cellular cash, jewelry, al’s victim, automobile, preventing from at- company, of a national employee using his meeting business tending a calls, provid- business to make

telephone attenuated” “too an interstate ed reliance and that jurisdiction, support federal make the a nexus such

upon Maj. Op. at See “ubiquitous.” case present view, connection my and, the obvious attenuated, given equally every outlet virtually retail fact obtained goods deals kind poten- has the also precedent ubiquitous. make

tial majority’s con- from the Therefore, ‍​​​​​‌‌​‌​​​​‌​​‌‌​​‌​​​‌​​​‌​‌‌​‌​​‌‌​​​‌‌​‌‌​​‍I dissent although affirming district

clusion court— respectfully. most

I do so America, Appellee STATES

UNITED ROACH, Appellant.

David 96-3119, 96-3120.

Nos. Appeals, Court Circuit. of Columbia

District 3, 1997.

Argued Feb. April

Decided notes reject that in challenges because, these although cases, such a trial court “might well” setting decide out the elements of the Hobbs Act that a appropriate, mistrial is long- while for count the court did refer to principal er complex and more trials courts would having offender “obtained property Syl likely” “more against decide vester Bradley,” mistrial. 99-100, Tr. 12/20/95 Id. advisory committee’s was note. abundantly clear that Because Rule money, which 23(b) expressly took the leaves this form of decision in bills and kept coin rolls discretion, trial court’s restaurant’s safe to because we find change make (as statement, policy case, no customers the manager’s principle testimony indi cated), fairness that personal not the invalidate the discretion- property of the ary decision manager, restaurant’s made here, the trial court therefore it was Harrington’s plain challenge not error to decline to jury eleven-member instruct the jury against verdict fails. making unlikely inference. sum, we find that the instructions III. Conclusion error”; “plain contained no the record as a whole jury shows that the clearly must jury The Harrington convicted duty understood its to determine whether sufficient evidence to find Harrington participated in of a Harrington which participated interfered Roy Rogers restaurant, and whether this with required interstate commerce as robbery affected interstate the 1951(a), § 18 U.S.C. and that Harrington aided and abetted partner’s C. The Court’s Decision to Permit an Elev- use of a during firearm and in relation to a Jury en-Member Render Verdict crime of violence violation 18 U.S.C. Finally, Harrington 924(c). § claims that the was properly instructed court abused its discretion by allowing regard the with count, Hobbs and the States extends decision of the United dicting its discretion not abuse court did trial power to events in the sev- virtually plenary a verdict jury to reach permitting states. eral had been excused after one members eleven Accordingly, Harrington’s just cause. illustrates, theory of under the this case As are convictions robbery of is no armed prosecution, there Affirmed. by the victim not covered a commercial grocery Act. There is no corner

Case Details

Case Name: United States v. Leo Darryl Harrington

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 25, 1997

Citation: 108 F.3d 1460

Docket Number: 96-3060

Court Abbreviation: D.C. Cir.