United States v. Miles

America, UNITED STATES

Plaintiff-Appellee, Lynn MILES,

Gregory and Gerald Gustus, Defendants-

Jehoram

Appellants.

No. 95-10001. Appeals,

United States Court of

Fifth Circuit.

Sept. Watson, Gartner,

Delonia Anita Paul E. Jr., Attorney’s Office, Dallas, TX, for Plaintiff-Appellee. Kleinschmidt, Worth,

Gerhard Ernst Fort TX, Lynn Gregory Miles. Fleury,

Peter Michael Federal Public De- Office, Worth, TX, Ray- fender’s Fort Ira Kirkendoll, mond Federal Public Defender’s Office, TX, Dallas, for Gerald Jehoram Gus- tus. DENNIS,

Before DeMOSS and Circuit DUPLANTIER, Judges, and District Judge.*

* ana, Judge sitting by designation. District of the Eastern District of Louisi- that the restaurant further testified She

PER CURIAM: Flags the Over one-half mile from Six located respective criminal their appeal In According park. to John- Texas amusement convictions, three issues. Appellants raise son, approximately was closed for the store im First, court they argue that the district robbery. following the one hour the Hobbs jury as to properly instructed the a second, they were im Gustus robbed Act; they argue that November On and, jeopardy; located on East Division subjected to double McDonald’s properly second store) (“East Arlington, that, third, the Division” they argue Street testimony of a Mc- According to the in United States Texas. Court’s decision 1624, 131 Graciano, the employee, L.Ed.2d 626 Esmerelda Donald’s opening at 6:00 on its (1995), Act is unconstitutional store was robbed case, physical descrip- face, fitting men the applied in this and a.m. two its or as support a testified find the Defendants. Graciano is insufficient tions of the evidence gun on commerce as of the assailants had effect” that at least one ing of “substantial robbery. government intro- required by Lopez. during For the The they argue is reasons, judgments a written confession we affirm the into evidence following duced the robber- regarding all five of the district court. from Gustus

ies, Divi- including robbery of the East sion store.1 BACKGROUND FACTUAL 7, 1991, entered December Defendants On Lynn Gregory

Appellants/Defendants (“Defen- a third McDonald’s restaurant and robbed Jehoram Gustus Miles and Gerald (“Euless” store). Euless, Texas dants”) located conspiracy, four for were indicted Woodley, testi- manager, Regina The store com- interference with interstate counts of Defendants, whom she identified that the fied firearm by robbery, and four counts of merce trial, shortly after entered the restaurant participation in a series of violations for their and, gunpoint, took opened at 6:00 a.m. it County, Tex- occurring in Tarrant robberies $3,000. Woodley further tes- approximately period. Tarrant over a two month These period of the store closed for a tified that County involved three McDonald’s robberies following robbery2 and that restaurant, time restaurants, a Taco Bueno approximately five store is located Euless alone Barbecue and Grill. Gustus Colters’s Worth Interna- minutes from robbery for the and firearm Dallas/Fort was indicted Airport. tional in- to one of the five robberies violation as following facts were introduced volved. The McDonald’s In with the three connection concerning each of the robberies and at trial robberies, introduced the disputed appeal: are not on Matson, pur- testimony the field of Richard manager the Dallas and Okla- shortly chasing after 7:00 On October a.m., of McDonald’s. Matson testi- regions a McDonald’s homa Defendants entered (“North that, robberies, the at the time of the Road fied Mini-Mac on North Watson store) were com- gun- North and Euless stores Arlington, Texas. At Watson Watson” $1,500 many purchased approximately pany-owned stores point, they removed ingredients supplies from out-of- their from the restaurant’s safe. Defendants locations. He also stated that the em- trial as the robbers state were identified at paychecks company stores are ployee an- for the manager Jenette Johnson and restaurant headquarters also received from McDonald’s employee. other Johnson testified Illinois, stores send High- Chicago, and that the store is located near the North Watson Chicago money receipts of- way highway which connects Inter- their fice. Highway Highway 20 and Interstate Woodley testified that the store “closed for was not indicted for this rob- 2. Ms. 1. Defendant Miles following robbery. response a while” bery there- or the firearm violation connected question long closed of how the store was with. robbery, Woodley replied, "I don't because of the long." recall how that, the East Matson testified Division Cullum admitted because the restaurant time, store was a franchise store at the time of its opened robbery stop did not franchise stores obtain nearby travelers on Interstate Highway 20 their food from the same out-of-state vendors being from able to eat at Arlington Col- company as the stores. He also testified that ter’s. payments the franchise stores send rent and 26, 1991, On November Defendants en- headquarters service fees to the McDonald’s tered a Taco (“Arlington Bueno Taco Bue- Chicago. in no”) during at 6:00 a.m. delivery. a food At cross-examination, that, On Matson stated gunpoint, the Defendants approxi- removed knowledge, to his the robberies of the three $1,200 mately from the restaurant’s safe. in County McDonald’s restaurants Tarrant manager, Brdecka, The store Jon identified shipment goods did not affect the from out the Defendants 'as the robbers. Brdecka of state to the distribution centers in Texas. also testified that the yet restaurant was not He further that employee pay- admitted the open for business at the robbery. time of the checks, state, originated out of were Brdecka, According to he and the delivery not, disrupted knowledge, to his because of driver were detained in the restaurant cooler the robberies. period for a short of time during robbery. the November On Defendants en- Brdecka also testified that the restaurant tered a Colter’s Barbecue (“Arling- and Grill Cooper Texas, located on South in Arlington, Colter’s”) shortly ton after 7:30 a.m. and approximately two miles from Interstate $1,300 approximately gunpoint removed Highway 20. He also Arling- stated that the from the robbery restaurant safe. The oc- ton Taco Bueno people serves from out of during delivery prior curred a food state, that occasionally he has noticed out-of- opening. According restaurant’s to the testi- plates lot, state license in parking the mony of the manager, restaurant Susan that his paycheck is received from out of Brenner, delivery employees the driver and state. in were detained the restaurant during cooler robbery. the employee Brenner and another Dunion, vice-president John the in charge perpetra- identified the Defendants as the purchasing for Eyed the Black Pea restau- tors. Brenner also that testified the restau- rants, Bueno, which owns Taco testified that Texas, Arlington, rant is located in that Taco Bueno restaurants are located Texas approximately it is one-half block from Inter- and Oklahoma pur- and that the restaurants Highway 20. many products chase of their food from out- Cullum, Payton of-state regional vice-president vendors. Dunion testified that Colter’s, that, Arlington purchases Taco Bueno testified at the its food time robbery, Arlington from out-of-state purchased Colter’s vendors accordance with many products company guidelines. of its suppli- Additionally, from out-of-state he money ers accordance with the company purchas- Arlington testified from the ing policy. deposited Cullum also Taco stated Colter’s Bueno is in a local bank and (in has catered least one event out of state later wired to a New York bank and held in York), New though even its paper. restaurants are commercial Dunion stated mon- solely in ey located Texas. He further testified stolen from Arlington Taco Bueno money received from sales at the Col- affected the amount wired from Texas to used, part, ter’s purchase restaurants is deposit. New York for that On cross-exami- supplies nation, food and from robbery vendors. Dunion out-of-state testified money Cullum testified that during taken change the Taco Bueno did not the out-of- robbery Arlington Colter’s purchasing company. would state habits of the purchases. have been used for such cross-examination, On Cullum stated that PROCEDURAL BACKGROUND robbery Arlington of the Colter’s did not stop company purchasing prod- from its charged The Defendants were first in an .the suppliers. Further,

ucts from out-of-state April eleven-count indictment on filed accordingly.9 ap- dants were sentenced On time of the first federal indict- At the

1992.3 ment, custody remanded, peal, Defendants reversed and this Court awaiting charges trial on state State of Texas finding improperly court had that the district indictment robberies.4 federal other participated plea negotiations. See conspiracy with to interfere charged them (5th Miles, 10 F.3d 1135 United States of 18 commerce violation with Cir.1993). four counts of interference U.S.C. remand, Upon reassigned the case was by robbery in violation of with commerce Terry Judge Means United States District using and four counts of U.S.C. quashed original who indictment without during carrying a firearm relation prejudice Judge May Means crime of a of violence the commission 924(c).5 allege failed to government § noted that 18 The Defen- violation of U.S.C. to initially agreed plead guilty requisite to dants each effect on of the eleven counts the indictment three Act an essential element of a Hobbs violation remaining exchange for dismissal § under 18 U.S.C. 1951.. however, agreements, plea counts.6 The reindicted on June Defendants were rejected subsequently by States were 1994, 14, jury. grand by a federal At the McBryde Judge John as undermin- District indictment, time of this second Defendants statutory purpose sentencing,7 ing the prison pursu- were in the state serving time case was set for trial. On the Defendants’ robbery ant to convictions for and other state day begin, trial was to the Defen- fifty sentence offenses. Miles’s state was plea agreement into a second dants entered years.10 Gustus’s state sentence Defendant they pleaded guilty each to four of in which subjected imprisonment him to life after plea agreement counts.8 This was the eleven McBryde serving years.11 a fifteen by Judge the Defen- sentence of accepted 1992, 1, government Miles a July 3. a one- 9. was sentenced to total 700 months filed On original (approximately years) three-year with a term information addition to the 58 count only. charged supervised as to Miles The count on each count. was indictment release Gustus possession (approximate- with a felon of a' firearm a 750 months Miles sentenced to total of (18 922(g)) separate § ly years) three-year supervised U.S.C. a of- violation for 63 with a term of 26, on which occurred November 1991. fense release on each count. pur- count was later This information dismissed plea arrangement. to Miles's second suant years partic- 10. Miles to 50 for his was sentenced 18, 1991, ipation aggravated in the December (discussing 4. 11-12 informa- 1720, 117 (1997), motions were denied. The Defendants were 137 L.Ed.2d 842 we on all find no convicted counts and sentenced as error.

follows: part, In relevant the district court instruct- jury ed the as follows:

Miles was sentenced on the federal convic- to a total (approximately you tions of 858 months If beyond believe a reasonable doubt sentence, seventy-two years). government’s Of the total regarding evidence inter- commerce, seventy-eight concurrently wit, months are to run McDonald’s, Colters, currently to the state sentence that Miles is and Taco bought Bueno and sold Texas, serving remaining and the 780 merchandise that had traveled from anoth- consecutively Texas, months are to run to the state er state to or that the robberies sentence. Gustus was sentenced to total of affected sales the stores of such mer- 1,140 chandise, (approximately ninety-five months money proceeds or that the from years). sentence, Of Gustus’s total 120 these stores moved interstate com- concurrently merce, months are to run with the or that these stores custom- served currently commerce, state sentences that Gustus is serv- ers who travel Texas, 1,020 ing in remaining you and the months then are instructed aas matter of law consecutively are to run to Gustus’s state an there was effect on interstate com- sentences. .... merce

year probation sentence was revoked and he was 13. The Defendants relied the Fifth Circuit's imprisonment. trial, impris- sentenced to life His life decision in because at the time consecutively 15-year 1994, onment was to run to his Supreme in late the U.S. Court’s decision previously sentence which he received affirming ruling yet the Fifth Circuit's had not January robbery Burger King. of the Dallas been handed down. charged conspiracy 12.Defendants were with states, part: Act The Hobbs in relevant (count 1), by robbery affect interstate commerce obstructs, any way degree Whoever in or affecting four counts of interstate commerce delays, or affects or the commerce movement (counts 2, 6, 8, 10) robbery and and four counts commodity article or knowingly carrying using a firearm in robbery attempts conspires or extortion or or relation to the commission of a crime of violence do, physical (counts 3, 7, so to 9, 11). or commits or threatens Gustus was also any person property violence to or in further- charged (count 4) with an additional (count plan purpose anything ance of to do firearm count All of these counts used charging language. violation of this section shall be under the same fined We note that in imprisoned twenty this title or not more these counts the statutory phrase did not than use the years, any way degree" "in or both. in de- 1951(a). scribing § the effect on interstate commerce. 18 U.S.C. 240 jeopardy prohibition.15 violate the double argue that the district and Gustus

Miles issue, however, preceding the law is impermissibly reserved Like the instruction court’s have no alleged in this Circuit. Defendants question of whether settled for itself jeopardy claim. affected interstate double acts of the Defendants Specifically, Miles and Gustus commerce. Parker, 48, v. 73 F.3d 55 In United States court’s instruction argue that the district Cir.1997), (5th (5th Cir.1996), aff'd, 72 104 F.3d comport Supreme Court’s not with does U ied,— .S.-, 117 S.Ct. den cert. Gaudin, v. holding in States (1997), 1720, L.Ed.2d 842 we also exam 137 (1995), 132 L.Ed.2d 115 S.Ct. as follows: this same issue and held ined gives a the Constitution held that acknowledged that Circuit has This right to demand criminal defendant Blockburger still [of ] “same elements” test guilty of all the elements jury find him Martinez, v. controls. United States charged. which he is the crime with (5th denied, Cir.), cert. F.3d the submission of Defen- Subsequent 130 L.Ed.2d 197 115 S.Ct. briefs, this Court decided United dants’ (1994). §§ case held that Martinez is, Parker, as to the a case which States v. 924(c)(1) passed Blockburger test instruction, virtually indis- jury form of proof threats requires because In the case at bar. tinguishable from weapon, possession force of a but considered, case, Parker this Court proof requires while that the defen Gaudin, ruling Court’s weapon not that used or carried a but dant by re- the district court had erred whether weapon for threat or force. was used question of whether serving for itself the Additionally, subsequent to Martinez this alleged acts affected interstate com- Parker’s again the issue United court addressed in- affirming the district court’s merce. Cir.1994), (5th Gonzales, 40 F.3d 735 States struction, that “the trial court com- we held denied, 1074, 115 S.Ct. rt. ce Parker, Gaudin-type error.” mitted no (1995), 1716, holding that 131 L.Ed.2d 575 F.3d at 73. imposed pursuant to cumulative sentences complaint of Miles and Gustus The permissible legisla are because the complaint to the of case is identical instant punish ture intended to authorize such the doctrine Parker. Under the defendant ments. decisis, are bound to adhere to of stare we (footnote omitted).16 Parker, at 55 73 F.3d See, holding. e.g., Parker’s earlier United Finding argument that is fore- Defendants’ (5th Arce, 335, 338 Cir. States v. 118 F.3d Parker, we hold that the district closed doing, In so we hold that the district court committed no error on this issue. Gaudin-type no error. court committed III.

II. Constitutionality Hobbs Act and of Suffi- Jeopardy Double Light Lopez ciency Evidence in they argue and Gustus Miles that, argue unconstitutionally subjected Finally, Miles and Gustus to double Supreme in Lo they were under the Court’s decision jeopardy when tried and convicted pez, is unconstitutional Hobbs Act 18 U.S.C. the Hobbs Act both under both the 924(c) applied They carrying on its face and as this case. (using or firearm rela violence). in this case is They argue contend also evidence tion to a crime finding “sub support Blockburger the test set forth in insufficient States, 299, 180, which the De effect” on v. 284 U.S. 52 S.Ct. stantial United (1932), argue required by Lopez. two convictions fendants 76 L.Ed. 306 these issue, jeopardy original Blockburger, re- As to the double 15. Under each conviction must quire proof panel's holding of a fact or element that the other and reinstat- was affirmed Parker Parker, Blockburger, does not. 284 U.S. panel. at 73. ed the en banc 104 F.3d at 182. appeal anoth During pendency prosecutions this Hobbs Act that I regis- must panel contrary viewpoints. this Court decided United States ter these er Cir.1997). (5th Robinson, 119 F.3d 1205 v. Robinson, upon Court relied In this I. Lopez United States v. (10th Bolton, Cir.1995), v. 68 F.3d 396

States decision, Lopez In its Court — denied, U.S.-, cert. 116 S.Ct. restated certain principles” “first as the foun- (1996), L.Ed.2d 887 reasons upon dation analysis which it based its of the application permits the of federal law based Commerce Clause. The first of princi- these on a de minimis nexus to interstate com ples is that government the federal is one of merce, regulates provided the “statute powers.” Lopez, “enumerated 514 U.S. at which, through repetition, in activity ag an 1626; 115 S.Ct. at see U.S. art. Const., gregate has a substantial effect on interstate I, § powers 8. These enumerated are few and Bolton, commerce.” 68 F.3d at 399. Find defined, powers while the which are to re- unassailable, panel in ing reasoning main in governments are “numerous Robinson held: (citing and indefinite.” The Federalist category under the third of the commerce (James Madison) (Clinton No. at 292-93 power particular described 1961)). ed., Ressiter separation “Just as the any given conduct issue in case need independence of the coordinate branches have a effect substantial government prevent federal serve to Congress is free to commerce. act—and power accumulation of excessive apply long the law—so branch, healthy power one balance of be- activity, regulated aggregate, as the in the tween the States and Federal Govern- reasonably sought substantially could be ment will tyranny reduce the risk of interstate commerce. effect abuse from (citing Gregory either front.” Id. Robinson, Ashcroft, at 1215. F.3d 111 S.Ct. (1991)). 2399-2400, 115 L.Ed.2d 410 This argument of Miles and Gustus unique theme of the contribution of federal- Lopez upon instant case as to the effect of system government ism in our key was the the Hobbs Act is almost identical reason for the concurrences of Justices Ken- contentions of the defendant Robinson. nedy Lopez majority and O’Connor in the decisis, Under the doctrine of stare we are concurring opinion, decision. his Justice holding.

bound Robinson’s earlier Ac- O’Connor, Kennedy, joined by Justice stated: cordingly, judgments we AFFIRM the theory governments that two accord Gregory Lynn conviction and sentences of liberty requires more than one for its real- Miles and Jehoram Gerald Gustus. ization two distinct and discernable lines of political accountability: one between the DeMOSS, Judge, specially Circuit Government; citizens and the Federal the concurring. second between the citizens and the States. fully per disposi- I concur with the curiam 576, J., (Kennedy, Id. at 115 at 1638 S.Ct. alleged tion of the in I Gaudin error Part concurring). foregoing opinion disposi- the with and the jeopardy tion the in principle Lopez double issue Part II. The next first which the pertaining As to the issues to the constitu- court cited is that limitations on the com- tionality sufficiency power very of the Hobbs Act merce are inherent lan- evidence, I recognize guage of the also that our of the itself. Id. at Commerce Clause 553, prior decision is controlled decision of 115 at 1627. “The enumeration S.Ct. Robinson, enumerated; presupposes something Court United States v. 119 not (5th Cir.1997); however, something, regard language F.3d 1205 I that if find we sentence, myself subject disagreement such fundamental must be the exclusively with the conclusions in of a Robinson as internal commerce State.” (9 Wheat.) 1, 195, Ogden, effect of United States v. 514 U.S. v. Gibbons U.S. (1824). 549, 1624, (1995), 115 S.Ct. 131 L.Ed.2d 626 6 L.Ed. 23 lin, 37, at 624 and at 57 S.Ct. Lopez court principle which the

The third Wirtz, 27, 183, Maryland 196 n. power of the v. 392 U.S. that the Com- to was referred 27, 2017, 2024 n. 20 L.Ed.2d subject limits.” 88 S.Ct. “is to outer merce Clause (1968)). 557, 115 at 1628. S.Ct. Lopez, 514 U.S. in NLRB v. Jones Quoting from its decision recog- category, last the Court Under this 1, Corp., 301 U.S. 57 S.Ct. Laughlin

& Steel not Lopez its case law had nized (1937), 615, the Court warned 81 L.Ed. 893 activity always as to whether an been clear power, scope of interstate commerce that the “substantially affect” inter- must “affect” or light of our dual “must be considered Nevertheless, the Court state commerce. may be ex- not system government that, with the clearly concluded “consistent effects inter- to embrace tended so as proper law ... great weight of our case so indirect and remote commerce state reg- requires analysis an of whether test them, complex in view of our to embrace activity ‘substantially inter- affects’ ulated effectually the dis- obliterate society, would 559, commerce.” Id. at 115 S.Ct. is national and what is what tinction between history reviewing of its own gov- completely centralized local and create relating to the exercise Con- decisions 557, Lopez, 514 U.S. at 115 S.Ct. ernment.” power, the gress of the Commerce Clause Laughlin, & 301 U.S. (quoting at 1629 Jones Lopez expressly pointed out twice Court 893). 615, 624, 1, 37, 81 L.Ed. 57 S.Ct. may “Congress it has never said Lopez clearly reaf Finally, relatively impact on commerce Court use a trivial govern principle general regulation that the federal firmed the as an excuse for broad 558-59, general police power. have a private Id. at ment does state or activities.” Wirtz, 566, 115 at 1633. (quoting Id. at S.Ct. at 1629-30 392 U.S. S.Ct. 27, n. at 2024 n. at 197 88 S.Ct. principles, first Using these “three Lopez then identified broad Court in Accordingly, measuring the constitution- activity Congress may reg- categories of ality Part III of a statute under the “sub- power.” Id. at test, its commerce ulate under Lopez effects” I read to estab- stantial First, may reg- Congress tests, at 1629. following S.Ct. each of lish the subordinate use of the channels of interstate ulate the uphold consti- which must be satisfied to I”). (hereinafter “Lopez Part commerce tutionality Part III: statute under Darby, (citing 312 U.S. United States regulation control a com- 1. Does the (1941) 451, 457, 85 L.Ed. 609 activity necessary or economic mercial Motel, Inc. v. and Heart Atlanta regulation of some interstate commer- States, 85 S.Ct. activity; cial (1964)). Second, Congress 13 L.Ed.2d 258 “jurisdic- 2. Does the statute include protect the in- empowered regulate requirement to ensure that tional nexus” of interstate commerce or strumentalities activity regulated instance of the sub- each commerce, persons things in interstate commerce; stantially affects interstate may only come from though even the threat support Does the rationale offered in 3. II”). (“Lopez activities Part intrastate (i.e., constitutionality of the of the statute Cases, 342, Shreveport Rate 234 (citing U.S. statutory findings, legislative history, argu- (1914); 833, 58 L.Ed. 1341 34 S.Ct. Southern counsel, court, findings of of a trial ments States, 20, Ry. v. Co. United U.S. reviewing court’s determination of the (1911); 2, 56 L.Ed. 72 and Perez v. S.Ct. challenged) purposes being of the statute States, 402 U.S. 91 S.Ct. point pre- which logical stopping have a (1971)). 1357, 1359, 28 L.Ed.2d 686 And what is na- serves the distinction between may finally, Congress regulate those intra- what is local in the activities of tional and having a state economic activities substantial commerce. or those ac- relation to interstate commerce guide must substantially These three subordinate tests tivities that affect interstate III”). 558-59, reviewing court’s of a statute’s (“Lopez Id. at determination commerce Part Lopez Part III. constitutionality under (citing Laugh- & 115 S.Ct. at 1629-30 Jones ease, government argues II. In the instant The Hobbs Act Lopez be confined to that the decision should present The text of the Hobbs Act was obvious that the statute in

its facts. It is adopted fifty years more than ago in 1946. the Gun Free School Zone volved It protect amended an Act “to trade and Act, 922(q)(1)(A), 18 U.S.C. is not the same against violence, commerce interference Hobbs Act. statute as the Based threats, intimidation,” coercion and which distinction, government contends that previously adopted had been in 1934. In Robertson, 669, v. 514 U.S. “United States 1942, the United Supreme States Court in 1732, 131 (1995), 115 S.Ct. L.Ed.2d 714 decid United States Local 807 International days Lopez, clearly after ed five demon Teamsters, Brotherhood Lopez specific strates that is limited to the (1942), S.Ct. 86 L.Ed. 1004 reversed a facts of that case and that statutes such as conviction, Act, under the 1934 of a labor Act I are constitutional.” see union and some its members. The Court support nothing govern Robertson to given held the instructions trial court ment’s contention. properly explain did not language in the excepted Act payment “the wages First, prosecution Robertson involved a un- employer bona fide to a bona fide Corrupt the Racketeer Influenced and der employee” prohibitions from the of the Act. (“RICO”), Act Organizations 18 U.S.C. Local S.Ct. 648- seq., 1961 et and the critical issue was precipitated 49. This decision filing drug whether the defendant had invested ultimately the bill which became the Hobbs proceeds enterprise in an which was “en- Act. The decision caused such a stir in Con- gaged affecting in or interstate commerce” as gress printed that its entire text was in full opinion, defined in RICO. In its Robertson report of the House Committee on the held that the Court defendant had invest- Judiciary which pas- recommended favorable “enterprise engaged in an ed interstate or sage of the Hobbs Act. The text of the Hobbs Robertson, foreign commerce.” 514 U.S. at Act itself does not any statutory contain find- at 1733. The Court did not ings. report of the Judiciary House Lopez mention at all and declined address any legislative Committee does not contain enterprise whether or not that “affected in- findings; simply it states: Furthermore, my terstate commerce.” Id. objective prevent “The of title I is to research indicates Court anyone obstructing, delaying, from or affect- constitutionality has never addressed the ing any or the movement arti- robberies, applies the Hobbs Act as it nor commodity by robbery cle or in commerce any Supreme has cited Rep. extortion as defined in the bill.” H.R. upholds constitutionality Court ease that 79-238, (1945). No. at 1369 of the Act in involving Hobbs situations rob- fact, court, making beries. light testimony 2. “In the of the and ad- interpreting its historical review of decisions hearings missions contained in the of the Clause, the Commerce did not cite of its Constitution, above-quoted provisions of the involving decisions the Hobbs Act. agreement persons there must be that those impeding who have been com- Consequently, govern- I would decline the levying merce and tribute from free-born invitation to limit language ment’s engaged American citizens in interstate com- analysis majority opinion Lopez to a permitted merce shall not be to continue nothing of determination more than the con- practices attempt such without a sincere on stitutionality of the Gun Free School Zone part Congress duty pro- of to do its of Act. I suggest that it is our function as an tecting interstate commerce.” Id. at 1370. carefully intermediate federal court to exam- portions quoted The of the Constitution language, analysis ine the reasoning, and of report the committee were: decision, Court’s and to apply follow and decision as best we can 1. “the citizens of shall each State be in this case. privileges entitled to all and immunities of occur, the fact that the States,” “robbery” would and (quoting id. in the several

citizens 2); and, Const., I, the drivers of the § cl. victims were art. individual U.S. legislative In these debates inbound trucks.1 on arti- duty shall be laid “No tax or absolutely which would is no discussion there State,” (quoting id. from exported cles part Congress of an intention on the indicate I, 5); and, Const., art. cl. might at the robberies which occur to reach shall, the consent of without 3. “No state produce might ulti- locations where retail on lay any impost or duties Congress, Likewise, there is no mately be delivered. except may be ab- exports, what imports or to legislative in these debates as discussion executing inspec- its solutely necessary for any, Congress ” if attached significance, what Const., art. (quoting U.S. laws.... tion (which any way degree” “in or the words to cl. Act, just they in the Hobbs were included and of the floor debates A careful review in the 1934 previously been included had on the members of the House dialogues Act). clearly indicates subject the Hobbs Act of the Hobbs Act I turn now to the text particular a Congress sought to address case, purposes to this For relevant Act: the itself. passage of the Hobbs evil Act states: unions union members of certain and practice along Coast of the major cities the East (a) any way degree or ob- Whoever States, City, particularly New York structs, delays, or affects commerce or the were inbound to stop trucks which who would commodity in any article or movement of carrying produce from cities loads those conspires ... so states and force the driver neighboring ... be fined under this title or to do shall pay day’s wage a for a to either cash truck twenty years or imprisoned not more than hire City union truck driver or to York New both. to drive the truck to its a union truck driver (b) section— As used City. York In these con- New destination (1) “robbery” means the un- The term debates, the conduct most fre- gressional obtaining personal taking lawful “paying of was labeled “extortion” or quently person pres- or in the property from the “robbery” was used occa- The term tribute.” another, will, by against ence of his but, often, “high- sionally, more the term was force, or threatened means of actual reflecting speaker’s focus way robbery,” violence, injury, stop or fear of immediate or location where the and both 11,899-922 (1945); pay you you I will knock also but if do not me see 1. See 91 Cong Rec. Bill, Hobbs, your your Anti-Racketeering the head and knock child or wife in The Hobbs Sam (1946). following Maybe it the man’s wife who is JBA 101-11 the head.” is Colum. Dist Then, fear, Congressional quotations wishing from the Rec- are two with him. to be debates, killed, describing the circum- perhaps desiring the House ord of mutilated or and not to killed, justifications typically discussed as pays stances the farmer see his wife and child Act: money. Hobbs 11,911 (1945) (statement Rep. Cong Rec. pro- a with a load of Here comes farmer Jennings). milk, butter, eggs, vegetables, potatoes, duce— things Eastman, then head of the Office of Hon. Joe produced upon and he has raised his Transportation, told me that his exam- Defense property. owns that Into it has farm. He 1,000 being reported night iners trucks a held sweat, gone and his and that of his wife his toil up Union and robbed in various cities of this children, may accompany of whom some Seattle, Angeles through Los across from they going line in him. As near State Scraton, Pa., Milwaukee, Chicago, through produce thug they market to sell the never up spot, Philadelphia, New which was another hot thugs or a comes saw before coterie York, day "Here, and over 100 a at the New York end says, stop your truck.” the truck and begging the Holland Tunnel. He was there "Why, stop says, want to The farmer I do not 1943, pleading the cause of as a witness in my going thug I am to market.” The truck. transportation, "Yes; and called attention to defense you stop your says, truck now.” The but asks, "Well, of trucks loaded the numbers and numbers you what do want?” The farmer Navy guns Army for our big with shells thug, $9.42 $8.41 it truck or "I want if is up goons and robbed those held it a little truck.” [if] says, pay at the mouth of the Holland Tunnel. want to it. I The farmer “I don't 11,912 Hobbs). "Yes; (statement Rep. help.” thug says, at your The Id. don't need future, property, person primarily to his or or produce means “to an effect or custody property posses- change in his or in.” Id. at 23. dictionary The defini- sion____ tion of the noun “effect” “something is that is

produced by cause; agency result; an or ^{[*] [*] [*] [*]} consequence.” Id. at 426. Applying these common, definitions, everyday I conclude (3) term ... The “commerce” means “commerce,” that the word in used any point all in commerce between Act, clearly Hobbs an activity pro- means or State, Possession, Territory, or the Dis- point cess between a point one state and a any point trict of Columbia and outside obstruct, another state. The “delay, verbs thereof.... or affect” good make if sense the word “com- Giving U.S.C. words used merce” is read to mean activity such an or common, ordinary their the statute mean- process. Neither the “delay” verb nor the States, ing, Moskal good verb “obstruct” makes sense if the word L.Ed.2d 449 “commerce” is construed to mean “an entity (1990), I construe the statute as follows: engaged in commerce.” gravamen proscribed by The of the offense Finally, I note that nothing there is in the obstructing, delaying, the Hobbs Act is the language of the purports Hobbs Act that affecting of or interstate commerce. The might define “who” be the victim of the “by robbery” words define the cause or robbery as defined therein. any Nor is there obstruction, delay, method which the or language purports might define “who” produced. effect on interstate commerce is be engaging in the interstate commerce de- elements of The the crime must be fined therein. proved beyond a reasonable doubt (i) obstruction, delay, are or III. Constitutionality of the Hobbs Act Un- (ii) effect on interstate commerce and Lopez der Part I obstruction, delay, such or effect was caused Taking into plain consideration the lan- by robbery. phrase any “in way The or itself, guage of the Hobbs insights Act degree” “obstructs, modifies the verbs de- given by legislative history, its the lan- lays, phrase or affects.” The or “commerce guage Lopez, pass Court in I any commodity the movement of article or quickly over Part I I because can see object commerce” is the of the verbs “ob- no finding basis law or fact for that the structs, delays, or affects.” food outlets where robberies occurred prepositional phrase The any “between this case were channels of interstate com- State, point in Territory, Possession or the meaning merce. The of the term “channel of any District of point Columbia and outside commerce,” Lopez, interstate 514 U.S. at thereof’ is the essential element of the defi- rivers, lakes, navigable must refer to the (b)(3); subparagraph nition of “commerce” in States; canals of the United the interstate prepositional phrase if that is inserted after system; railroad track high- the interstate (where the word “commerce” appears it in way system; pipeline systems; the interstate places opening two subpar- sentence of lines; telephone telegraph air (a)), agraph prohibited a clearer sense of the routes; traffic television and radio broadcast apparent. conduct is frequencies; and satellite communication fre- dictionary on, over, quencies definition of through “commerce” is which flow interchange commodities, “an goods or commodities goods, be- and information tween different countries or between places areas of which constitute commerce between country; the same trade.” Webster’s Col- different states. There is no evidence or lege Dictionary (1991). testimony The definition whatsoever this case that would of the term process permit “trade” is “the act or a conclusion that of the retail buying, selling, exchanging commodities food outlets in this case constituted “a chan- retail, either country wholesale within a nel interstate commerce.” Under Part I therefore, between countries.” facially 1413. “Affect” of Act in movement an obstruction of the could be constitutional, supports the con- nothing but commodity, re- of that applied as interstate commerce stitutionality Hobbs Act of the of that quantity or value gardless in case. of the facts Likewise, if taken. commodity which was Act Un- Constitutionality of the Hobbs IV. is, himself, “in person who is robbed Lopez Part II der (either passenger aas interstate commerce” traveler, operator or crew or as an Supreme or a Lopez, the II of Part Under instrumentality interstate empow- an of Congress is member of recognized that Court commerce), protect operating the instrumen- in interstate regulate and commerce ered “to commerce, or persons or person interstate talities of is taken from then whatever though (whether watches, in even things jewelry, interstate money, it be cash only from intrastate may come cards, the threat quantity, regardless of the or credit 558, Lopez, thereof) activities.” value, number, an could constitute or by by the cases cited As indicated at 1629. Congress in- on commerce because effect Part II identifying Supreme Court traveler, opera- passenger, that such tended of “instrumentalities I read the term powers, tor, protected would be or crew member trains, to refer interstate commerce” commerce. These are while interstate trucks, boats, cars, vehicles and other planes, leg- events which the very circumstances and move in a people or commodities by which clearly history Congress shows islative commerce; “per- I the term read channel passed the Hobbs Act. in mind when it had trav- passengers, mean in commerce” to sons which are are also the circumstances These elers, crew members on operators, or by plain, common-sense read- compelled commerce; of interstate instrumentalities Act. ing of the words of the Hobbs “things interstate I read the term and Thus, Lopez, commodi- goods to mean the or Part II of what was commerce” cargo in interstate being transported person as from robbery, ties and the taken I that the Court taken, note commerce. property was determine whom such “protect” well as the verb obstruct[ed], the verb used robbery “delay[ed], whether the defining Part II. “regulate” In each interstate commerce.” or affect[ed] appeal, involved in this what of the robberies II Clearly under Part register cash or taken was cash from the was an facially constitutional as Act is Hobbs outlet. From where safe of a retail fast food regulate congressional power to exercise It came from customers this cash-come? did instrumentalities, people, protect and proceeds from sales conducted on as the actually moving interstate goods after these premises of the fast food outlets there is no from robberies. Yet commerce paid money over the counter customers cash testimony in this case which or evidence cus- products available. These “instru- for the food support a conclusion could commerce,” any “persons ... the final retail consumers mentality of tomers were commerce,” any “things in in- products. or These sales transac- these food “obstruct[ed], de- exclusively commerce” were terstate local and intrastate tions were subject layed], or robber- affect[ed]” taxable the State nature and were ies. general sales tax. Both under its Texas buyer place the same seller Act, “robbery” is Hobbs the term In the possession took the form of the transfer of taking obtaining unlawful “[t]he defined as person-to-person exchange, hand-to-hand property person against personal from being sold and product as to the food both force, violence.” 18 U.S.C. his will money being given bought and as 1951(b)(1). robbery delay, How can a ob- conclude, I as consideration. would therefor struct, movement or affect commerce or the law, then, money a matter of that as commodity in commerce? any article or register was not a com- taken from the cash Obviously, “personal property” if which is moving in interstate com- modity product itself a com- part taken as commerce,” merce. then there modity “in interstate

247 Likewise, persons from whom this cash regulated activity whether the ‘substantially persons “in qualify taken do not inter- was affects’ interstate commerce.” Id. In review- ease, In this is abso- ing history state commerce.” there of its own relating decisions lutely any passen- no evidence that by Congress the exercise of its Commerce present was ger or traveler even on the power, Clause Lopez Court in stressed any robbery, any occasion of much less that that it “has never ‘Congress declared that passenger actually such or traveler was may use a relatively impact trivial on com- any personal property. robbed of of his In merce as an general excuse for regula- broad instance, testimony there is one tion of private or state activities.’” delivery present during of a truck was driver Wirtz, (quoting at U.S. 196 n. 88 S.Ct. Yet, one of the robberies. as to this occa- 2017, 2024 n. (i) sion, testimony there is no that this driver Robinson, Prior to the decision in our Cir any delivery, making was kind of interstate cuit tested two other criminal statutes (ii) any product nor of the which he was against Lopez’s requirement of a substantial (iii) delivering robbery, was taken nor effect on interstate commerce. In United personal property of his was taken. Kirk, (5th Cir.1997) States v. 105 F.3d 997 employees Because the of the fast food outlet (en banc), petition filed, cert. 65 U.S.L.W. robberies, obviously present during (U.S. 1997) (No. May 96-1759), an question the critical whether these becomes equally divided en banc court affirmed a employees operators can be considered possession conviction for intrastate aof ma any instrumentality in- crew members of of 992(o). gun, § chine opin 18 U.S.C. Three terstate commerce. I think not. An instru- ions were judges filed various of this mentality of interstate commerce is some- Court, (endorsed opinions two a combina thing which effectuates the movements of tion eight judges) upholding the constitu commodities, goods, information from 922(o), (en tionality § opinion and one place place one state to a another state. by eight judges) holding dorsed other commodities, goods In the case of 922(o) satisfy Lopez did not the test of instrumentality essential features of an are important note, however, Part III. It is transport its abilities to move and to such every opinion that each and recog Kirk commodities. fast food outlets Lopez required nized that the use of the ease have neither essential feature. Conse- “substantially” testing adverb whether an quently, because neither the cash which was passed effect on commerce constitutional taken, persons nor the from whom the cash Kirk, (opinion muster. See at F.3d taken, was meet the “in being test of inter- Parker, J.), (opinion 999-1000 commerce,” I conclude that the evi- J.), Jones, Higginbotham, (opinion wholly dence in this case is insufficient to J.). support finding Lopez under Part II that “delay[ed], Corona, robberies issue ob- Subsequently, in United States v. structLed], (5th Cir.1997), affeet[ed]” interstate com- upheld 108 F.3d 565 we merce. constitutionality of a federal criminal statute involving purely activity intrastate Constitutionality V. of the Hobbs Act Un- Lopez category by reading third into the Lopez der Part III requirement statute a that the intrastate ac- tivity substantially involved must affect in- respect III, Lopez With Part the Su terstate commerce. The Corona af- preme decision recognized Court its involving firmed an arson conviction always case law had not been clear as to burning building compa- of a activity whether an rented a taxi merely must “affect” or ny. customary purely “substantially affect” addition to its local interstate commerce to Congress’s trips, company transporta- be the taxi regulatory power. within offered Lo pez, 514 arriving S.Ct. at 1630. How tion to interstate travelers at an ever, clearly airport. the Court Congress concluded that “con We reasoned that could involved, i.e., great weight sistent with the specific activity of our case law criminalize the proper warehouse, ... requires analysis burning company test an a taxi arson statute test to the building stantial effect” could of such destruction because 922(o) our in Kirk mandates upon interstate com- and to Corona a substantial effect have test to Corona, effect” application at 571. 108 F.3d “substantial merce. in Robinson is Act. The decision Lopez, Con- that under also concluded We prior holdings. with our in conflict all arsons constitutionally make gress cannot crimes; which sub- only those arsons federal Sufficiency of the Evidence VI. are sub- commerce stantially affect interstate prosecution The regulation. ject to federal mo Defendants’ court denied The district solely concern. a state is of other arsons which was judgment acquittal, tion for federal the crime of Thus an element case-in- government’s at the end of the made actions had a that the defendant’s arson is the close of evidence. renewed at chief and commerce. upon interstate effect substantial precedent upon then-Circuit The court relied case-by-case analy- a requires This of course upon interstate minimis effect that a de evidence Corona analyzed the sis. We a convic to sustain was sufficient commerce burning a taxi-cab and concluded Act. United States the Hobbs See tion under was there- an effect and had such warehouse (5th Cir.1994), 95, Collins, cert. v. 40 F.3d 844(i). § 18 U.S.C. a federal crime. fore 1986, denied, 1121, 115 S.Ct. 514 U.S. (1995); States v. Ste United L.Ed.2d 873 important to our consideration is Corona (5th Cir.1992); 424, because, phens, like the Hobbs 964 F.2d Act of the Hobbs expressly Wright, 804 F.2d Act, States v. statute does the arson 1013, (5th denied, Cir.1986), have cert. activity regulated must require that the (1987). 1887, How upon interstate com- 95 L.Ed.2d 495 effect 107 S.Ct. a “substantial” controls, view, require- ever, Lopez and the Lopez imposes my the same merce.2 rob- prosecution applies. for a constitutional effects” standard ment “substantial robbery Act: the must bery the Hobbs primary mean- dictionary gives two The upon interstate com- effect have a substantial ings for “substantial”: crime. constitute a federal merce to amount, ample or considerable 1. “of apply reasoning the same test- I would size, etc.,” quantity, constitutionality of the Hobbs ing the facial nature; corporeal material 2. a or “of Lopez. I category of the third Act under College Dictio- actual.” Webster’s real or Act is constitu- would hold that the Hobbs quan- meaning is supra, at 1332. One nary, robbery robbery or a applied to a tional titative, qualitative. Both mean- the other is substantially only robbery if conspiracy necessary fulfill the function ings are commerce. To the extent affects interstate Supreme must have intend- which the Court it a Act is read to make Lopez III. ed under to commit a which federal crime any “in [insub- affects interstate commerce (i.e., ample meaning quantitative The way degree,” it is or de minimis or ] stantial amount) with the harmonizes Lopez. unconstitutional under relatively Lopez that “a Court’s statement impact commerce” cannot be used trivial recognize my I conclusion conflicts general regulation of for broad “as an excuse in Robinson and with our Circuit’s decision Lopez, 514 U.S. private or activities.” circuits which with the decisions of other Wirtz, (quoting at 1629 rejected effect” have also the “substantial n. n. 88 S.Ct. at 2024 Respect- U.S. at 196 respect Hobbs Act.3 test with actual) (i.e., meaning real or qualitative fully, application I that our of the “sub- think Cir.1996) Wall, (6th statute, property v. 92 F.3d 1444 involved States 2. Under the arson J., Ngu- foreign dissenting). (Boggs, in interstate or 'commerce United States must be "used Cf. Cir.1997) activity affecting foreign (5th interstate or or in yen, 117 F.3d 798-800 844(i). commerce.” 18 U.S.C. J., (Jones, application dissenting) (advocating the to review of of the substantial effects standard hand, alone in the belief 3. On the other I am not arson/explosion stat- conviction under federal genuine under the calls for review ute, 844(i)). 18 U.S.C. See, e.g., United substantial-effect standard. law) necessary to fix the “outer limits” of the service of such 115 S.Ct. at substantially Clause. customers was Commerce affected only be If an effect on commerce need robberies. There is evidence in this record conjectural speculative hypothetical upon jury reasonably which a could conclude assumable, practical purposes, that, (thir- then for all relatively periods short of time an effect on commerce is requirement hours), ty minutes to two these fast food extends to the broadest reach unlimited —it outlets following were closed the occurrence imagination. human robberies; however, of these there is abso- lutely testimony no this record prosecutors judges have Imaginative (or jury reasonably could judge conclude produced concepts of “de minimis effect” law) determine as a matter of that such assets,” “depletion of both of which rest substantially closures affected interstate speculative conjectural assump- upon a testimony commerce.4 There is in this rec- I an effect on interstate commerce. tion of upon jury ord which the could have reason- concepts, cannot reconcile these which our ably that concluded the McDonald’s franchise reaffirmed, in with the new Court Robinson payments outlet would rent send and service Lopez; regulated the effect of the rule fees to the headquarters McDonald’s in Chi- activity on interstate commerce must be sub- however, cago; absolutely there is no evi- is, stantial, that considerable in amount and upon dence in this jury record which the Lopez, In real or actual nature. the Su- (or reasonably could judge conclude a deter- expressly rejected the “cost of preme Court law) mine as a matter payments that such productivity” “national theories crime” and obstructed, delayed, by or affected support government which the offered robberies. There is evidence in this record constitutionality of Free the Gun School upon jury which 564-67, reasonably could con- Zones Act. See id. at 115 S.Ct. at employees company- clude that at the I that the “de minimis 1632-33. would hold pay- owned McDonald’s “depletion theories outlets received their effect” and the of assets” state; however, checks from out of there similarly rejected. is should be absolutely testimony upon no in this record case, The evidence this even when (or jury reasonably which the could conclude light viewed a most favorable to the ver- law) judge a determine as a matter of that dict, that is not sufficient establish receipt paychecks of such was obstruct- any activities in of the robberies Defendants’ ed, delayed, by or affected the robberies. upon had a substantial effect interstate com- merce. government tried these Defendants testimony theory required

There is this record from the that the Hobbs Act (i) jury reasonably prove only which a could conclude that that the Defen- (ii) bought ingre- robbery, each of fast outlets a these food dants committed fast however, suppliers; dients from out-of-state food outlets where the robberies occurred whatsoever, testimony, there is no this had some de minimis connection with inter- upon jury reasonably government’s a record could state commerce. Under the (or judge theory, proven conclude determine as a matter the second element could be law) any purchases ingre- by establishing of those that: the fast food outlets received, sources, ingredi- dients were affected the robberies. There from out-of-state testimony upon jury they prod- in this which a record ents which used their fast food ucts; reasonably employees could these fast in these fast food outlets conclude occasionally paid food outlets served customers were with checks that were sent from commerce; however, sources; proceeds who travel out-of-state from sales of whatsoever, testimony, products there is no in this fast outlets would be food these jury reasonably forwarding to a record which a could sent to a local bank for home (or Texas; judge these conclude determine as matter office outside the State First, cally, might any 4. This is true for two reasons. there is not sales that have been lost would testimony a shred of that identifies the sales that have been local in nature. Second, might have been lost. and more criti- judicial interpretation the Hobbs Act major thor- extends located on food outlets were fast every of almost business estab- to robberies highways; and these fast food oughfares and If in this land. the de-minimis- lishment customers who sometimes served outlets good law after test is still effect-on-eommeree in interstate commerce. Under traveled and the instant case then Robinson theory, of these factual proof government’s similarly will be mean that the Hobbs Act sufficient because would be circumstances stores, stores, grocery ice applicable drug these cir- precedents, under Circuit Court shops, beauty shops, shops, cream barber judge permit the district cumstances would stores, stores, parts jewelry video auto law, assume, a matter of to infer or stores, stores, liquor pawn shops, and clean- on commerce. a minimis effect there was de frequent All are pressers. of these ers and theory, an inference would such Under every Almost one of targets of robbers. proof that actual effect had require not inventory these businesses will have some view, my the facts and in fact occurred. from out of state and customers who could be government, proven circumstances states. traveling between ie., outlets involved the fast food merchandise that had trav- “bought sold con- The de-minimis-effect-on-commerce Texas,” state to do from another eled therefore, cept, prin- two of the first violates evidence constitute direct Supreme Court in ciples articulated obstruction, delay, any or effect caused Lopez: permit a rea- Nor do these facts commerce. government does not 1. that the federal a matter to that effect. As sonable inference general police power, a have fact, by govern- tendered of the witness 3; and, n. n. at 1631 S.Ct. in this case to establish these out-of- ment scope com- 2. of the interstate “[t]he cross-examina- purchases admitted on state power light merce ‘must be considered affect those tion that did not may system government our of dual purchase ingredients If purchases. effects not be extended so as to embrace was not affected from out-of-state sources upon interstate commerce so indirect and pur- robbery, proof then that out-of-state them, in remote that to embrace view of our any logical cannot have chases were made effectually complex society, would obliterate an effect on bearing on whether there was between what is national and the distinction is true for each of the commerce. The same ” Id. at at 1629 what is local.’ S.Ct. gov- referred to other circumstances (quoting Laughlin, Jones & 301 U.S. at upon by ernment in its brief and relied jury. district court its instruction prosecution generally of local crimes is concept reality, what the de minimis to This is considered be state function. if permit is the Hobbs Act to be read as does way borne out the circumstances of the engaged it said “whoever robs business investigated. the robberies in this ease were interstate commerce shall be fined hereunder no Bu- There is evidence Federal twenty years imprisoned for or both.” Investigation, Drug reau of Enforcement upon interpretation permits conviction This Tobacco, Alcohol, Agency, the Bureau bought proof goods or sold Firearms, any agency had other federal commerce, traveled be- interstate customers anything investigation the initial to do with states, proceeds tween or sales were trans- they in- any of these robberies. Nor were Obviously, ferred from one state to another. ap- initial volved with the identification what the Act states. this is not Hobbs prehension of the Defendants. Detectives Furthermore, police department in the coun- if Act is con- from the local the Hobbs ty robberies occurred obtained prohibit robberies of business where these strued witnesses, commerce, took and if “be- statements from the victim engaged interstate scene, ultimately se- fingerprints commerce” means at the ing engaged interstate from one of the buys something than that a cured a written confession no more business pointed All indications toward supplier from an interstate or sells some- Defendants. traveler, speedy prosecution of these then such and successful thing to an interstate law, and Texas under Texas stat- Defendants provide USA, INC.; for the enhancement of sen-

utes OXY Plaintiff-Counter repeat career crimi- Defendant-Appellant, for offenders and tences trial, Indeed, prior to the federal both nals. Exploration Producing Mobil And pro- had been convicted state Defendants U.S., Inc.; Inc., Chevron USA ceedings other robberies and were similar Plaintiffs-Appellants, fifty prison serving sentences of state parole. years or life without The State investigatory Texas did all of the initial work BABBITT, Secretary Department Bruce prepared go forward with state and was Interior; Tschudy, Deborah Gibbs prosecutions particular as to the robberies in Royalty Chief Valuation and Standards this case. Management Division Minerals Service Department Interior; Cynthia Quar reasons, foregoing I conclude that For the terman, Director, Management Minerals applied Act is constitutional as Service, Department Interior, De types three of robberies: those which occur Claimants-Appellees. fendants-Counter in or involve the use of a channel of inter- commerce, persons those which involve No. 95-31047. commerce, things in interstate and those Appeals, United States Court of which have a substantial effect robberies Fifth Circuit. upon interstate commerce. But the Hobbs constitutionally longer applied Act can no be Sept. produce only a de minim- to robberies effect such as those for which the Defendants were convict- evidence, in this case. The when viewed

ed govern- light most favorable to the

ment, establishing that falls short of these obstructed, substantially de-

Defendants

layed, or affected interstate commerce or the commodity

movement of article or

commerce, by robbery conspiracy to com- robbery.

mit precedent

Accordingly, were I free of the

of this Circuit as announced United States Robinson, judgments I would reverse the conviction and sentences Defendants

and remand the ease to the district court

with instructions the indictments. to dismiss See notes infra robbery County, in Cooke of a Texas. McDonald's regard- appeal the record available from on tion Also, presentence investigation report when the convictions). ing the Defendants' sentencing, prepared was for federal Miles was aggravated robbery indictment for charged robbery 5. with an Gustus was additional Rockwall, Further, Texas. a motion to revoke count. count and firearm sentence, previously 10-year probation Miles's aggravated robbery received another convic- for plead guilty conspiracy agreed 6. to to the Miles tion, pending. was count, robbery one firearm violation to commit count, charge possession by and a firearm years aggra- 11. to Gustus was sentenced 15 for 922(g). 18 violation of U.S.C. Gus- felon in aggravated robbery years vated and 35 for sexual plead guilty conspiracy agreed to the count tus to January assault in connection with and two firearm violation counts. robbery Burger King. a Dallas Gustus also was years aggravated robbery sentenced to 50 for agreement, plea 7. Under the Miles would have years aggravated (17 50 sexual assault in connec- for approximately 204 been sentenced months 7, tion with the October of a sec- years) approximately and Gustus 480 months Burger King ond restaurant in Dallas. From the (40 years). record the above it is unclear if convictions consecutively. pleaded guilty conspiracy concurrently count to run Gustus Miles exchange years, to violation was to 35 run concur- and three firearm counts in further sentenced Dallas, against rently previous remaining convictions in for dismissal of the counts with the for him, aggravated robbery including of a the one-count added December information During pleaded guilty County Gustus also Cooke McDonald's. commis- to the indictment. offenses, conspiracy and three in ex- sion of the above mentioned Gustus was firearm counts probation aggravated robbery. change remaining another dismissal of the counts for convictions, Following against the above Gustus's 10- him. charged timely The second federal indictment De The Defendants filed ap- notices of peal. with the same counts and violations fendants indictment, original exception with the that this later indictment included the word DISCUSSION ing “interstate commerce.”12 The Defen Miles and Gustus raise three issues on pleaded guilty and were dants tried appeal. We will address each issue in turn. jury in the court of United States District trial, During Judge Eldon Mahon. their De timely fendants moved for dismissal of their I. charges grounds on the that the use of a de Gaudin Error determining minimis standard for an effect on commerce was unconstitutional Miles argue and Gustus first that the failed to show a substantial district court erred instructing jury required by incorrectly effect on interstate commerce as on the elements of a Hobbs Act offense, the Hobbs Act and the Fifth Circuit’s Holding deci U.S.C. 1951.14 argument sion United States v. F.3d 1342 Defendants’ is foreclosed Unit (5th Cir.1993), Parker, (5th aff'd, ed States v. F.3d 72 Cir. — (1995).13 1997) (en banc), denied, U.S.-, 131 L.Ed.2d 626 Defendants’ cert.

Case Details

Case Name: United States v. Miles

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 5, 1997

Citation: 122 F.3d 235

Docket Number: 95-10001

Court Abbreviation: 5th Cir.