*1 discharged. Company committed vio four of the against
lations of the NLRA signed who union cards at the sec
seven layoffs. meeting, including
ond three See Cal-Pro, (up
Indiana
holding bargaining order relatively
Board “relied on the small size unit, manage bargaining the level of involved, egre
ment and the extensive and by
gious practices unfair labor committed Company”). light In of the deference
due to the Board’s determination of the
appropriate remedy, and our review which
shows that the Board has meet the three by court to review
factors established our order, bargaining we find bargaining properly is
Board’s order was ProGalv, F.3d at
sued. See V&S
(stating supported that “because the Board by bargaining
its reason for the order
citing by to the violations made em [the
ployer], supported which were testimo facts,
ny remedy the Board’s should disturbed”).
not be
IX. Conclusion sum, the Board’s determination of the upheld
violations of the NLRA is and the petition
Board’s for enforcement of the
Union certification and the is GRANTED petition
Board’s for enforcement of the
bargaining order is GRANTED. America,
UNITED STATES
Plaintiff-Appellee, WANG, Defendant-Appellant.
Min Nan
No. 98-6490. Appeals,
United States Court
Sixth Circuit.
Argued: Sept.
Decided and Aug. Filed: *2 briefed),
Henry (argued A. Martin Office, Nash- Federal Public Defender’s ville, TN, Appellant. for (argued and McDonough, Harold B. Jr. Nashville, TN, briefed), Atty., Asst. U.S. Appellee. for GILMAN, Before: BATCHELDER HOOD, Judge.* District Judges; Circuit J., BATCHELDER, delivered the GILMAN, J., court, in which opinion of the 241-47), HOOD, joined. (pp. D.J. opinion. separate concurring delivered * Hood, Michigan, sitting by designation. Page Denise The Honorable Judge the Eastern District States District him to kill him unless Tsai told where ened
OPINION money in the house was. The assail- BATCHELDER, Judge. Circuit gun, him a loaded it in front of ant showed his convictions Wang appeals Min Nan him, it at pointed his head. interstate commerce robbery affecting time, By placed tape had *3 § of 1951 and of violation 18 U.S.C. repeated- He her Mrs. Tsai’s mouth. told a in relation to using carrying and firearm money your and ly, Wang “Your life.” (robbery) in violation of a crime of violence accomplice left their victims on several his 924(c)(1). § the For reasons 18 U.S.C. to confer in a dialect that neither occasions follow, these convictions. we reverse Each time of the Tsais could understand. Wang meeting returned from with his ac- I money complice, he would demand eventually Wang Tsai. Mrs. Tsai told Mrs. the owners of Paul and Patricia Tsai are Cookeville, about she had earlier withdrawn $3000 Restaurant the China Star in an personal from her account and left purchases Tennessee. The China Star envelope dining on her room table. Before suppli- meat seafood from out-of-state and house, pair Wang’s accomplice left the per month. approximately ers twice On moved Mr. Tsai from the bedroom closet 11, 1995, September Mrs. Tsai closed the utility to the room. The robbers drove approximately p.m. 9:00 and restaurant away Toyota in the Tsais’ automo- Corolla Tennessee, Algood, to her home in drove bile. by separate Mr. Tsai in a car. followed with her from the cash
She took $1200 Chamblee, Wang later was arrested register, of which she intended to $900 pursuant County, to a Georgia, Putnam deposit in the restaurant’s bank account Tennessee, especially aggra- warrant morning. the next Mrs. Tsai drove into robbery, especially kid- aggravated vated and garage of her home then entered especially burgla- napping, aggravated and house, placing money from the 21, 1996, ry. August grand On a federal dining restaurant on the room floor. She jury returned a four-count indictment bedroom, where, then went to her unbe- in- charging Wang robbery affecting with her, Wang, who knownst to had broken terstate in violation of 18 U.S.C. earlier, the house lurk- (Count into sometime was I); carrying § using 1951 ing. Wang grabbed Mrs. Tsai from be- firearm relation to a crime of violence in quiet. hind her in to be 924(c)(1) (Count and told Chinese § of violation 18 U.S.C. resisted, Wang When Mrs. Tsai hit her on II); carjacking in violation of 18 U.S.C. object, with a (Count the head hard handcuffed III); § transporting 2119 face, put something her and over her tell- stolen motor vehicle interstate com- ing up her to shut or he would kill her. merce, § in violation of 18 U.S.C. bathroom, pulled IV). He then her into the (Count Wang was also bathtub, deposited her and secured aiding abetting § under 18 U.S.C. railing her on the wall next to the to all four counts. bathtub. recognized Wang’s Mrs. Tsai jury. was tried without a case
voice because he once had worked as granted Wang’s district court motion for cook her restaurant. III judgment acquittal on Count parked
As Mr. Tsai
car in the
garage
Wang guilty
his
indictment
found
screaming.
he heard his wife
he
counts. The
remaining
When
court sentenced
house, Wang’s accomplice
twenty-four
entered the
at-
I
months
Counts
side,
IV,
him
him
hitting
tacked
from the
in and
and the interstate
object.
transportation
the head with
hard
The accom-
of stolen motor vehicle
closet,
counts,
him
II
plice
by
years
took
to the bedroom
hand-
followed
five
on Count
924(c).
him
rail
cuffed
to the clothes
and threat-
for the violation of 18 U.S.C.
sentence,
sufficiency
sup-
review the
evidence
the district
handing down
by
porting Wang’s
determining
conviction
levels from
downward ten
departed
court
reviewing
“whether after
the evidence
finding
level
total offense
prosecution,
light
most favorable to the
and threats
subjected to abuse
had been
any rational trier of fact could have found
him into
smuggled
who had
individuals
beyond
the crime
the essential elements of
States, that he had been shabb-
the United
a reasonable doubt.” United States v.
criminal
ily
by the United
treated
(6th Cir.1992)
Brown,
con-
and that his offense
justice system,
Virginia,
(quoting Jackson
was aberrational.
duct
(1979)).
99 S.Ct.
This Court
landscape has not
jurisprudential
beyond an abso-
on interstate commerce
Lopez,
wake of
changed
much
$1,200.
effect of
There
lute de minimis
down the Gun-
landmark ease
struck
that Dr. and Mrs. Tsai closed
proof
is no
Zones Act of
18 U.S.C.
Free School
restaurant,
unable to
they
were
exercise of Con-
922(q), as an invalid
any
goods
further
from out of
order
power under
the Commerce
gress’s
of an [e]f-
state. There is no evidence
at
514 U.S.
Lopez,
Clause. See
upon interstate commerce.
fect
Facial constitutional chal-
S.Ct.
Nevertheless,
Act followed close on
pre-
lenges
to the Hobbs
the court decided
away the
Lopez.
turning
compelled
this circuit
find-
the heels
cedent from
States v. Valen-
I.
first of these
United
ing
guilt
respect
to Count We
zeno,
normally
Lopez
we remarked
dicta that
have
lesser effect
interstate
“[i]f
gives
indicates that the Commerce Clause
commerce when directed
individuals
businesses.”).
Congress
power
previously
than was
pres-
less
rather than
This case
case,
remedy
thought
proper
to be the
opportunity
ents our first
to address the
give
would be to
statute a narrower
showing
government
that the
make
must
interpretation,
require
or to
a more sub
an
to demonstrate that
nexus,
jurisdictional
stantial
not to hold
probability”
individual had a “realistic
facially
Congress.”
invalid an Act of
Va
affecting interstate commerce.
Cf.
(6th Cir.1997).
lenzeno,
123 F.3d
Taylor,
176 F.3d
however,
jointed]
Ultimately,
our sis Cir.1999)
“[w]e
(rejecting a blanket constitution-
ter circuits and
de minimis
[held]
challenge
applied
al
to the Hobbs Act as
standard for the
commerce ef
citizens,
private
burglaries
robberies of
fects of individual Hobbs Act violations
residences).
private
of a
We hold that the
Smith,
Lopez."
survived
United States v.
required showing is of
different order
(6th Cir.1999).
than in cases in which the victim is a
entity.
business
Lopez
recognized
had
Court
power
regulation
the commerce
includes
Appeals
Those Courts of
that have con-
activities that are connected with a com-
question'
pre-
sidered this
—even
which,
mercial transaction
viewed
the Lopez
*5
recognized
robbery
era—have
that a
aggregate, substantially affects interstate
private
only
of a
that
citizen
causes
Lopez,
commerce.
514
at
115
speculative indirect effect on a business
basis,
that
S.Ct. 1624. On this
we decided
engaged in interstate commerce will not
Lopez
require realignment
did not
jurisdictional
satisfy
requirement
the
jurisdictional
Act’s
Hobbs
nexus because
Circuit,
the Hobbs Act. The Fifth
for ex-
arising
individual instances
under the stat-
ample,
apply
refused to
the Act to the
could, through repetition,
ute
have a sub-
robbery of an
automobile and
cellular
stantial effect on interstate
commerce.
telephone
computer company
from a
exec-
Smith,
See
182 F.3d at
in
456. So United
utive,
though
might
even
the crime
have
Smith,
upheld
States v.
we
Hobbs Act
the
prevented the
attending
victim from
busi-
conviction of a defendant who
vari-
robbed
meetings
ness
or making business calls.
Michigan “party
ous
stores” of
in the
sums
Collins,
United States v.
40 F.3d
100
figures, saying, “By proving
low four
that
(5th Cir.1994)
(holding
acts
“[c]riminal
the stores Smith robbed did substantial
may
directed toward individuals
violate
beer, wine,
in
prod-
business
and tobacco
1951(a)
(1)
only
deplete
section
if:
the acts
ucts,
virtually
prod-
and that
none of such
directly
the
an
assets of
individual who is
in
originate Michigan,
government
ucts
customarily engaged
in interstate
met its burden.” Id.
(2)
commerce;
if the acts cause or create
broadly phrased
Even as
as our
likelihood
the individual will de-
are, however,
precedents
they
plete
entity
do not com
an
in
engaged
assets of
(3)
pel
commerce;
the result that the district court reluc
interstate
if
or
the number
tantly reached in this case.
with “the
As
of individuals
the sum at
victimized or
overwhelming majority
involving
of cases
large
stake is so
that there will be some
statute,”
Quigley,
United States v.
53 ‘cumulative effect on interstate
com-
”
(8th
(footnotes
Cir.1995),
omitted)).
F.3d
prece
our
merce’
Another
dents have
in
involved robberies which the
court held that a
two
individu-
victims were
in
engaged
businesses
inter
als who were en route
a liquor
store to
where,
here,
state commerce. But
purchase
the make a
had no
or
effect
realistic
citizen,
private
criminal act is directed at a
potential effect on interstate commerce.
Quigley,
the connection to interstate commerce is
at
(following
53 F.3d
910-11
Col-
(“Actions
lins).
much more attenuated. See id.
Similar concerns were voiced in
pri
directed at
is local
the activities of commerce....
involving extortion
cases
See, e.g., United States v.
immediacy
citizens.
Activities local
their
do not
vate
(7th
Mattson,
1024-25
Cir.
become interstate and national because of
1982)
extortion directed
(holding
repercussions.”).
distant
Just this sort of
an individual does not affect inter
against
“butterfly
theory
effect”
of causation
payoff
does not
commerce where
state
required
liability
would be
to find
entity engaged
an
deplete the assets of
great majority of
Hobbs Act cases which
no
connec
interstate commerce and
other
private
victim a
citizen.1 See James
exists);
with
see
tion
interstate
Gleick,
Making
Chaos:
a New Science 8
DeParias,
F.2d
United States v.
also
(1987) (discussing
parable
the flap-
(11th Cir.1986)
(citing
Mattson
ping
butterfly’s
of a
wings
creates
overruled on other
proposition),
for this
China,
air
minor
current
that adds to
Kaplan,
grounds by United States
sys-
the accumulative effect in
wind
global
Cir.1999).
1351, 1357
tems, that
ends with
hurricane
Caribbean).
Lopez,
Per
small sum sto-
of our sister cir
The conclusions
not,
private
from a
len
individual does
by Lopez.
cuits are bolstered
Hobbs
through aggregation, affect interstate com-
Lopez
Act’s de minimis standard survives
merely
hap-
merce
because the individual
principle.
aggregation
virtue of the
pens
employee
to be an
of a national com-
apply
Lopez
But the
Court declined to
pany,
happens
way
to be on his
to a
conjunction
aggregation principle
store,
happens
carrying proceeds
to be
long chains of causal inference
would
from a restaurant.
necessary
been
to arrive at a sub
have
commerce.
stantial effect
say
not to
that criminal
This is
Thus,
argued
when the United States
private
acts directed
citizens will never
would,
possession in school zones
gun
jurisdiction
Act.
create
under the Hobbs
in violent crime
aggregate,
result
*6
acknowledged,
The federal courts have
for
would
which would result
costs which
example,
large
that victimization of a
num
economy through
affect the national
individuals,
of a
ber of
or victimization
insurance,
mechanism of
the Court re
sum, can
single
very large
individual for a
sponded:
uphold the Government’s
“To
.
directly to affect
potential
have the
inter
here,
pile
to
contentions
we would have
See, e.g.,
state commerce.
United States
upon
in a
inference
inference
manner
Farrell,
870,
v.
877 F.2d
875-76
Cir.
congressional
would bid fair to convert
1989)
demand of
(holding
extortion
authority under the Commerce
to a
Clause
$1,540,000
have affected
“would
interstate
police power
general
of the sort retained
legally cognizable degree”).
commerce to a
by
Lopez,
the States.”
514 U.S. at
satisfy
But
to
1624;
when the Government seeks
see also A.L.A.
115 S.Ct.
Schecter
States,
jurisdictional
by
a
showing
the Act’s
nexus
Poultry Corp. v. United
(1935)
individual victim
495, 554,
connection between an
speculative.
suggested
have
that the
We
adopted.
regulation
showing
make such a
Clause was
might
Government
punishment
that the defendant knew
of intrastate violence
by demonstrating
of or was motivated
the individual vic
that is not directed at the instrumentali-
channels,
ties,
goods
connection to interstate commerce.
involved in inter-
tim’s
Mills,
always
v.
See United States
state commerce has
been the
(6th Cir.2000)
Indeed,
(holding
province
solicitation
of the States.
we can
gave
example
police
of bribes from individuals
rise
think of no better
jurisdiction
Act
power,
federal
under
Hobbs
which the Founders denied the
“had actual
reposed
because the defendants
knowl
National Government and
States,
money
suppression
that the bribe
would be ob
than the
of violent
edge
made in
through
tained
loans
interstate
crime and vindication of its victims.
commerce”).
proof
Other avenues of
will
—
Morrison,
U.S.-,
United States
present
themselves.
would
no doubt
We
-,
1740, 1754, 146
120 S.Ct.
L.Ed.2d 658
however, that the
anticipate,
“overwhelm
(2000) (citations omitted).
regard
Due
ing majority”
brought
of Hobbs Act cases
requires
Wang’s
this admonition
case
before the federal
will continue to
courts
be heard
state court. We therefore
are
be ones
which
victims
busi
reverse his Hobbs Act conviction.
directly engaged
nesses
interstate com
Ill
merce.
Wang
challenges
next
his conviction for
case,
present
application
In the
using a firearm relation to a crime of
principles
these
dictates
reversal
violence
violation of 18 U.S.C.
Wang’s
respect
conviction with
to Count I.
924(c)(1).
The district court held
private
private
in a
Wang robbed
citizens
accomplice’s possession
liable for
of a
his
$4,200,
approximately
residence
mere
gun during
the doctrine
under
$1,200
belonged
of which
to a restaurant
States,
of Pinkerton v. United
328 U.S.
doing business
commerce.
(1946),
66 S.Ct.
between what is
national and what
be
in a court
the United
of
”
States,
truly
recognizing
local.
fact
....
uses or carries a firearm
preserve
principles
(emphasis
we
of
supplied).
one
the few
This circuit has held
finding
preceded by
correctly—that
2. This
was
statement
district court
the ef-
believed—
that "there is no effect on interstate com-
fect
did not
here
rise even to the level of de
beyond
merce
an absolute de minimis effect
minimis.
clear, however,
$1200.”
It is
lenge
that “the de-
his conviction on Count IV. As to
language requires
that this
I,
robbery charge, Wang
a violent crime for Count
claims
have committed
fendant
in federal
that the evidence was insufficient to show
may
prosecuted
he
be
which
Smith,
(emphasis
property
at 457
a connection between the
ob-
court.”
omitted).
Smith,
any activity
we cited with tained from the
And
having
the Fifth
an effect on interstate commerce.
approval
holding
Circuit
924(c)
II, using
carrying
§
cannot On Count
a firearm
that a
conviction
Collins
violence,
jurisdic-
no
in relation to a crime of
Wang
when the trial court had
stand
Collins,
predicate
wrongfully
crime. See
claims that he was
convicted on
tion over
924(c)(1)
(“Section
requires
theory
liability
conspiracy,
based on
versed.”). Wang’s robbery did Because Wang People’s Repub- is a citizen of the even a minimis effect on inter- not have de Fuzhou, Fuji- city lic of China from the commerce, prop- the crime could not state illegally an Province. He entered the court. erly prosecuted have been federal Wang smug- United States was 924(c) § conviction Accordingly, Wang’s gled by professional into the United States also be reversed. must smugglers called “the Snakeheads” for a $30,000.00. America, HOOD, Judge, District fee of Once in
DENISE PAGE money repaid, had to be with interest. concurring. physical The Snakeheads use threats and below, forth I con- For the reasons set assaults to enforce the collection of such judgment Wang’s cur in the convic- fees, including against threats and force I and II must be reversed. tions on Counts remaining in family members China. immi- Snakeheads are able to locate these I. BACKGROUND grants nearly anywhere in the United 21, 1996, August grand jury re- On they usually because remain charging a four-count indictment turned to the community language Chinese due Appellant Wang Min Nan with the follow- illegal barrier alien and their status. 1) robbery affecting interstate com- ing: Wang City in New York has lived 2) 1951; § merce violation 18 U.S.C. Atlanta, in various restaurants. working using carrying a firearm in relation Ping, of'Wang, an associate tes- Ms. Chen (robbery) in violation of a crime of violence there were incidents tified several 3) 924(c)(1); carjacking § in vio- 18 U.S.C. involving and the while Snakeheads 4) 2119; trans- lation of 18 U.S.C. York. Ping resided New testified vehicle in interstate porting a stolen motor into a gang in 1994 members came *8 in violation of 18 U.S.C. worked, Wang restaurant where she and Wang aiding was also with and $2,000.00 demanding Wang. Gang from § 2 abetting under 18 as to all four U.S.C. apartment the members also entered counts. $1,600.00 and demanded Ping Wang and him a cordless jury. Wang ease tried The from and beat with
The was without produce not the granted Wang’s telephone motion for when he did district court (the incident, money. Wang and judgment acquittal on Count III After count) Atlanta, carjacking Wang Ping hiding indictment. went into and fled to remaining the three but threats and visits from the Snake- guilty was found the Ping gang stated that Wang appeals counts. now his conviction heads continued. apartment in At- I II. not chal- members came to their Wang on Counts and does lanta, $1,000.00 Wang. money. Tsai told him the location of the demanding On occasion, $1,200.00 gang another members broke In addition to the cash from door, Wang’s restaurant, $3,000.00 attacked him and de- down the in cash from the $9,000.00. gang manded members personal dining account was on the Tsais’ Wang’s family also made threats that in room table. Tsai was then hand- Mrs. pay. if not China would be harmed he did bathroom, cuffed to fixture and to Ping Wang’s contacted sister China man the man left the room. The returned family warn the the Snakeheads’ a few to times to bathroom ask Mrs. threats, Ping that but the sister informed money Tsai where the was located. Mrs. gang already family “visited” the had heard man Tsai confer with another Wang previously in China. had borrowed person in a voice. After Mrs. Tsai told low. money pay from friends to Snake- the_ $3,000.00 located, the man where the was Wang police called the to inform heads. two men left the house. A them of the threats he had received. shortly Mr. Tsai testified that after Mrs. police report nothing officer took a but did house, Tsai entered the he heard her than more advise to relocate. screaming. He was he attacked as soon as July June worked entered the hit house then for three at the weeks China Star restau- weapon. The man who attacked him took Cookeville, rant Tennessee. The China Mr. Tsai to the bedroom and handcuffed by Star owned Chinese-American cou- him to a rail.1 He Mr. threatened Tsai Tsai, ple, Trida and Paul who reside money. and asked for Mr. Tsai saw that Algood, Tennessee. One of the Tsais’ em- gun this man had a small which he used to ployees had inWang recruited Atlanta to hit Mr. Mr. Tsai. Tsai testified that his substitute for a worker on leave. attacker also left the room a few to times Tsai, Tricia Mrs. who works at the res- confer with someone else a Chinese taurant, husband, testified her Paul dialect, which he did not understand. He Tsai, every night came to close the restau- returned to the Mr. bedroom to ask Tsai September rant. On after the left, money. about the Before the men restaurant, Tsais closed the they drove Mr. Tsai was taken from the bedroom in separate home cars. Tsai had Mrs. pipe closet and handcuffed to a $1,200.00 day’s receipts in cash from the laundry room. The men were in the house planned deposit which she in the bank twenty thirty for about minutes. Mr. day. the next Tsais arrived home eventually open Tsai ga- was able to parked garage. their cars Mrs. rage neighbor, door and call to a who then Tsai testified that she entered the home police. Toyota alerted the The Tsais’ Co- first, placing bag with the restaurant rolla automobile was stolen. It was recov- receipts dining on the floor in the room. following day ered the at the Atlanta air- bedroom, When she entered her someone port. grabbed her from behind. She told to was ordeal, During police the Tsais’ officer up
shut hit on her was head with a an conducting investigation green was of a object identify. hard which she could not Tempo Ford Agency owned Rent-A- Mrs. Tsai was then handcuffed and taken There, parked Car .2 into about miles from the Tsais’ the bathroom. Mrs. Tsai was police home. This officer summoned up, told to shut would was she be killed. Chinese, Hearing the man to the Tsais’ home. He later returned speak Mrs. Tsai recognized green Tempo the voice Ford Wang’s, whom she determined Wang Pong. agreement knew as The man from rental found in the car was wear- *9 mask, ing a and the room by Wang was dark. The the car had been rented handcuffs, man asked her money. using pair about the Mrs. a credit card. A of appre- 1. This man was never identified or hended.
243 light in the viewing the evidence after eaten sand- partially water bottled any ra- prosecution, to the favorable car. most in the rental found were wiches have found trier of fact could com- car rental tional to the reported later Wang beyond a of the crime elements stolen. essential been the car had pany v. United States doubt.” indicate reasonable card records credit Wang’s (6th Cir.1992) Brown, 63, 67 robbed, his Tsais were date the 307, 443 Virginia, v. U.S. at Jackson purchases (quoting used to make card was credit (1979)). 2781, 319, 560 61 L.Ed.2d lo- 99 S.Ct. market convenience gas a station Tsais’ home. from the a few miles cated court claims the district Wang also gas from the tape video The surveillance theory conspiracy incorrectly applied Wang and and market recorded station States, v. United forth Pinkerton set sandwiches purchasing man another 645-648, 90 66 S.Ct. 328 found to those water similar bottled (1946), the evi- by weighing L.Ed. 1489 car. rental U.S.C. under 18 for conviction dence Chamblee, 924(c)(1) not with Geor- he was § where was arrested Wang a County, question Tennes- This issue is conspiracy. a Putnam to gia, pursuant standard. law, rob- under de novo see, especially aggravated reviewable warrant for Graves, kidnaping, and especially aggravated bery, Cir.1995). The cred- burglary. aggravated especially Tempo green Ford used to rent it card I) (Count gas station purchases make Act
and to B. The Hobbs were the Tsais’ home market near there is insufficient Wang claims Wang’s wallet. found finding of support to on the record proof by (the a trial right his to Wang waived “Hobbs § After under 18 U.S.C. guilt Wang was Act”) bench trial was held. failed to jury, a because the Government I, II and TV. in this guilty on Counts the victims found show Wang on Count acquitted judge commerce district had an effect on interstate case district III, count. The carjacking jurisdictional nexus meet the to sufficient ten downward departed levels judge under section required to Level Level Total Offense pertinent § 1951 states 18 U.S.C. family had been Wang and stating that his part: threats, to violence and subjected (a) ob- any way degree or Whoever the crimi- badly by treated had been or structs, delays, or affects and that country, in this system justice nal or commod- any article movement clean record and previously Wang had commerce, ... or at- by robbery ity Wang was aberrational. appeared act so, or commits conspires do tempts or to I and 24 months on Counts sentenced any physical violence threatens or IV, mandatory 60-month followed in furtherance of property person II, consec- to be served on Count sentence in viola- anything to do plan purpose of 84 months. a total term utively, for under fined be of this section shall tion more than not imprisoned title or II. ANALYSIS both. twenty years, or of Review Standard A. 1951(a). prevail § order U.S.C. violation, the Govern- a Hobbs Act evi- insufficient under claims there was 1) inter- Act, elements: prove must two Hobbs ment him to convict under dence commerce, which is as an I and ference Count 18 U.S.C. 2) issue; and, the substan- jurisdictional charge in firearm on the and abettor aider case act, in the instant which criminal claims tive Insufficiency evidence II. Count States, 361 v. United “whether, robbery. Stirone by considering determined are *10 244 212, 218, 270, 80 4 S.Ct. L.Ed.2d 252 case, Consistent with the Lopez jur-
(1960). isdictional test of a federal statute such as the Hobbs Act is regulated whether the argue does not the Hobbs activity “substantially affects” interstate Act is unconstitutional. The Hobbs Act’s Supreme commerce. The Lopez Court in constitutionality repeatedly Up- has been that, acknowledged prior Lopez, to case Valenzeno, held. United States v. 123 law did not (6th clearly 365, Cir.1997). indicate whether an 368 Wang also activity must “affect” or “substantially af- does not challenge element of fect” interstate commerce in his conviction order under the Hobbs Act. Wang Congress power to exercise its under claims that since the Supreme Court’s de- Commerce Lopez, cision in Clause. 514 U.S. at Lopez, 514 U.S. 559, 549, 1624, 115 1624. Supreme 115 S.Ct. S.Ct. 131 Court L.Ed.2d 626 (1995), then announced that proper jurisdiction- test the test for the should be the al “substantially element in a federal statute affects” test. Id. is whether The Su- preme the activity “substantially Court jurisdic- affects” inter- also noted that the 559, state commerce. Id. at tional element 115 should be S.Ct. determined on a standard, “case-by-case Under this inquiry.” claims Id. at that there is insufficient sup- evidence S.Ct. 1624. to port his conviction. Id. Act, Under the Hobbs the “substantially
The Government
pre-Lopez
cites
affects”
cases
test focuses on
“activity”
support
that,
to
argument
its
involved,
in this Cir-
the victim
rather than the single
cuit, only a de minimis effect on interstate
performed
defendant,
criminal act
by the
required
commerce is
support
a convic- and
that activity
how
affects interstate
See,
tion under the Hobbs Act.
e.g., United
Smith,
commerce. See United States v.
(6th
States v. Harding,
(6th
563 F.2d
Cir.1999).
182 F.3d
In
Cir.1977).
Lopez,
Prior
Smith,
this Circuit
this Circuit held that “the de min-
held that
there is no requirement
imis standard for the interstate commerce
there
anbe
actual effect on interstate com-
effects of individual Hobbs Act violations
merce,
only
but
a showing that there be a
Lopez.”
survived
Id. at 456. The Court
realistic probability that
activity
adopted
would
the Tenth Circuit’s reasoning re-
have affected interstate commerce.
garding
Unit-
Lopez
that,
decision
“if a stat-
Brown,
ed States v.
959 F.2d
regulates
which,
ute
an activity
through
Cir.1992).
repetition, in aggregate has a substantial
commerce,
effect on interstate
the de
case,
In the Valenzeno
this Circuit had
minimis character of individual instances
opportunity
to address the Hobbs Act
arising under the statute is of no conse-
post-Lopez. The sufficiency of the effect
quence.” Id. (citing United States v. Bol-
on interstate
addressed,
commerce was not
ton,
(10th Cir.1995) (in-
however, because the defendant did not
omitted)).
ternal quotations
appeal.
raise that issue on
only
Valenzeno
addressed the constitutionality
Smith,
the defendant and others
Hobbs Act in light
Lopez.
This
party
Circuit
robbed
stores. The defendant ar-
noted in Valenzeno
Lopez
that “[i]f
indi
gued
appeal
the test under the
cates that
the Commerce Clause gives Hobbs Act was whether the robberies had
Congress
power
less
than
previously
was
a “substantial effect” on interstate com-
case,
thought to be the
the proper remedy merce, instead of the “de minimis” effect
give
would be to
the statute a
previously
narrower
required
this Circuit.
Id. at
interpretation, or
require
a more sub
456. Applying the Tenth Circuit’s reason-
jurisdictional nexus,
stantial
not to
ing
hold
that the single activity
perpetra-
facially invalid an Act
Congress.”
but,
Va
tor is not the test
in the aggregate,
lenzeno,
and tobacco atA. 151-52 Michigan. originate not did products on finding focused court’s The district perpetrator “activity” of the single The Id. money the activity and found Wang’s of individu- character “the de minimis and in the amount the Tsais taken from is of under the statute arising instances al effect on inter- $1,200.00 a de minimis had Bolton, consequence.” no not The court did district state commerce. time of activity at the victims’ focus on the in this court the district In its ruling, be- and did not differentiate robbery the by this bound it was case believed and robbery of individual tween a an de minimis the regarding cases Circuit’s Smith, In the rob- robbery a business. of the the effects determine of how to test The place of business. bery involved under the commerce activity on interstate place of business at their not Tsais were Smith, the district Based on Act. Hobbs robbery The robbed. they were when in its conclusion court was correct private home. the victims’ place at took applicable un- is still standard minimis de the case that in this shows The evidence Howev- in this Circuit. Act the Hobbs der restaurant busi- involved Tsais were distinguish- case er, this are the facts in goods some of ness and that case. from the able Smith state outside the purchased were business finding stated: court its The district from the Tsais’ Stolen of Tennessee. then, of Count question on Now home money brought from was home has Court indictment. This of the One ac- personal business, from their money legal its reserva- expressed previously table, dining room count, was on which tions, reservations philosophical its and vehicle. its unreason- Act the Hobbs and about Collins, the commerce clause stretching of able (5th Cir.1994), delineated Circuit the Fifth recognition. all beyond robbery of a busi- between the difference pre- However, Court is bound govern- individual. of an ness and Supreme the United States cedents from that the rob- was theory Collins ment’s Court, Circuit. This as the Sixth as well personally-owned in his the victim bery of no there is Court effect finds be- commerce vehicle affected an absolute beyond interstate commerce robbery, the consequence as a cause $1,200. minimis de effect of attending from prevented victim was Mrs. Dr. and proof no There is us- prevented and from meeting business restaurant, they Tsai closed to make business telephone ing his cellular goods any further to order were unable held Fifth Circuit at 99. The calls. Id. There is no evidence out of state. not violate did robbery Collins com- upon interstate [sic] an affect Act, “if the stating that the Hobbs merce. inter- to affect found were of an individual is, I However, say, as this Court of the real because merely state I dis- though by precedent, even bound of the individual’s disruption perceived I precedent work, with that agree strongly with his by interfering business change that courts to higher urge 1951(a) ubiqui- would be section reach of apparent- begun have they precedent as closely-inter- robbery, in our tous, any in others. Lopez case to do in- ly would affect economy, arguably woven at 100. Id. commerce.” terstate Nevertheless, finds that the the Court “[hjowever, state, went on Fifth Circuit prov- been have Count One elements of broadly as the $3,000.00 extension the inter- in cash from per- the Tsais’ state commerce requirement spread, has sonal account. The evidence insuffi- federal, we are still a unitary not a govern- cient to show that the total amount taken *12 and, ment neither the constitutional limits significantly depleted personal the Tsais’ power the on of the national government, account, business account or restaurant jurisdictional nor the requirement of some assets or that they likely were to be de- connection interstate may pleted. The district court found that the (internal ignored.” be Id. citations omit- restaurant was not closed as a result of ted) The Fifth Circuit observed that “the the robbery, nor were the Tsais prevented Hobbs Act was intended to only reach any goods ordering from out-of certain activities hamper interstate state. The evidence does not show that business, reflecting the long-recognized the number of individuals victimized or principle that posi- states are best the sum large taken was so that there was tioned equipped to enforce the general any cumulative effect on interstate com- criminal laws.” Id. merce. Based the evidence presented The Fifth Circuit also noted that trial, at there was insufficient evidence to “depletion-of-assets” theory falls in an in- support a finding that robbery of the direct effect category on interstate com- Tsais at their home had even a de minim- merce, opposed direct effect on is affect on interstate commerce. Wang’s interstate commerce. Id. at 99. This “de- conviction on Count I is therefore re- pletion-of-assets” theory usually applied versed. engaged businesses in interstate com- merce because criminal acts against busi- (Count
nesses would have a greater II) effect on in- Charge C. Firearms terstate commerce than criminal acts 924(c) Section makes it unlawful for against individuals. Id. at 99-100. The “any who, person during and in relation to Fifth Circuit noted certain circumstances any crime of violence ... for which criminal where acts may violate section person may prosecuted be in a court 1951(a). The following factors were con- States, United firearm, uses or carries a sidered the Fifth Circuit to determine who, in any crime, furtherance of such whether the criminal acts directed toward possesses firearm.” 18 U.S.C. 1951(a): an individual violate section 924(c)(1)(A) added). § (emphasis Section (1) deplete the acts the assets of an 924(c)(1) is a distinct offense rather than individual who is directly and customari- merely being a sentencing enhancement ly (2) engaged commerce; in interstate provision. Nelson, if States v. the acts cause or create the likelihood (6th Cir.1994); F.3d individual deplete will the assets United States of an entity engaged Ospina, 1335-36 com- Cir. (3) merce; 1994). if number of A individu- defendant need not be convicted als victimized or the sum at stake is or even charged so with the underlying crime large that there will be some cumulative 924(c). § to be Nelson, convicted under effect on interstate commerce. However, it is necessary that (footnotes, Id. at 100 government prove citations and beyond a internal reasonable omitted). quotations doubt all 924(c), § of the elements of one of which is that the defendant committed Applying the Collins factors to the facts case, underlying crime. Id. at 200-201. Be there is insufficient evidence cause there is find violation insufficient evidence to show Hobbs Act. The evidence that Wang shows that committed the underlying Tsais were $1,200.00 their robbed home of crime of Act, under cash the Hobbs from the receipts restaurant day there is insufficient evidence to convict 924(c). Wang’s conviction under reversed. be also II must Count under *13 Plaintiff-Appellant, BURNS,
Melvin INC.; ENTERPRISES,
COCA-COLA Bottling Com- Coca-Cola
Knoxville Defendants-Appellees. Inc.,
pany,
No. 98-6535. Appeals, Court Circuit.
Sixth 25, 2000 April
Submitted: 24, 2000 July Filed:
Decided