UNITED STATES of America, Appellee, v. Derrilyn NEEDHAM, Javier Robles, Corey Thompson, Defendants-Appellants, Joey Figueroa, Christian Quinones, Defendants.
Nos. 06-5652-cr (L), 07-0112-cr (CON), 07-0196-cr (CON), 07-0294-cr (CON)
United States Court of Appeals, Second Circuit
Argued: May 22, 2008. Decided: May 14, 2010.
604 F.3d 673
[n]o experienced criminal defense attorney would want his client to plead guilty and then mount a full blown evidentiary challenge to the drug quantities without being aware of the limited probability of success, given the burden of proof at a sentencing hearing. The risk of losing acceptance of responsibility credit existed and counsel had the obligation to inform Parsley of that fact.
Counsel acted reasonably.
Parsley argues a red herring: that counsel had adopted a per se approach that he would never advise a client to enter an open plea and challenge drug quantity at sentencing. That per se approach, he says, is inherently unreasonable and so establishes ineffective assistance. The record does not support his argument. Counsel‘s statement was, “I don‘t know that I would ever recommend for somebody to [enter an open guilty plea and then contest drug quantity at sentencing].” He did not say that he had a categorical rule against entering such pleas. Counsel made clear that he always discussed an open plea as an option with his clients, and in this case counsel advised Parsley based on the particular evidence at the government‘s disposal. Counsel‘s advice in this case, which the district court found to be reasonable, was not based on a per se view that defendants will always lose their sentencing reduction for acceptance of responsibility if they plead and then challenge the drug quantity at sentencing.
That Parsley may wish in hindsight that he had given greater consideration to the option he rejected does not mean that he was not properly advised on it.
The district court‘s judgment is affirmed.
Elizabeth E. Macedonio, Bayside, NY, for Defendant-Appellant Derrilyn Needham.
David L. Lewis, Lewis & Fiore, New York, NY, for Defendant-Appellant Javier Robles.
David S. Leibowitz, Assistant United States Attorney, for Michael J. Garcia, United States Attorney, Southern District of New York (Katherine Polk Failla, Assistant United States Attorney, on the brief), New York, NY, for Appellee United States of America.
Before: CABRANES, KATZMANN, and B.D. PARKER, Circuit Judges.
B.D. PARKER, JR., Circuit Judge:
Defendants-appellants Derrilyn Needham, Javier Robles, and Corey Thompson appeal from judgments of conviction in the United States District Court for the Southern District of New York (Lynch, J.) for Hobbs Act robbery and related offenses. See
This case presents a situation that is highly unlikely to recur, as it arises from Hobbs Act convictions obtained while the law of this Circuit was in flux. After defendants’ trial, our Court held in United States v. Parkes, 497 F.3d 220 (2d Cir. 2007), that the jurisdictional element of the Hobbs Act must be found by a jury beyond a reasonable doubt, even where the underlying robbery involved illegal narcotics. Under this supervening rule, the district court‘s jury instructions were erroneous. But this error affects only those counts of conviction for which we are unable to identify evidence in the record satisfying the
The dissent contends, in effect, that every robbery involving marijuana satisfies the Hobbs Act‘s jurisdictional element as a matter of law. We rejected that proposition in Parkes itself.1 Yet our colleague‘s reasoning would reinstate this presumption, in the face of clear precedent to the contrary, by effectively putting words in the jury‘s mouth. In this effort, the dissent draws a false equivalence between Congress‘s broad power to regulate activities affecting interstate commerce, and the specific jury finding that a particular offense affected interstate commerce, which is required by the Hobbs Act. In so doing, our colleague would turn nearly every robbery into a federal offense. While the dissent concedes that its approach would transform the jury right into a mere “formalism,” we believe that the government must prove an effect on interstate commerce, however slight, in every Hobbs Act prosecution. Absent proof beyond a reasonable doubt, this Court cannot substitute its own speculation for the jury finding required by our precedent.
We emphasize that with the law firmly established after Parkes, 497 F.3d 220, district courts have clear guidance about how they should instruct juries in Hobbs Act prosecutions going forward, and the situation presented here is unlikely to recur. Nonetheless, in this case the government did not offer any proof that would demonstrate an interstate nexus, however slight or subtle, for the marijuana robberies. As a result, the defendants’ robbery convictions must be reversed. The district court‘s judgments are affirmed in all other respects.2
I. BACKGROUND
The appellants were prosecuted for their roles in a series of violent robberies targeting narcotics dealers in the New York City area. They belonged to a conspiracy involving approximately ten individuals who, in various combinations, committed more than a dozen robberies and attempted robberies over a two-year period. These robberies ordinarily involved home invasions of suspected drug dealers in which the participants, acting on inside information, gained entry by impersonating police officers and then robbed the inhabitants of drugs and the proceeds of drug sales. In addition to the conspiracy charge, the indictment contained substantive counts charging the appellants for the various roles they played in several of the underlying robberies. Ultimately, the jury
Defendants Needham and Robles were convicted for a December 13, 2001 robbery at 4434 Baychester Avenue in Bronx, New York. The trial testimony showed that Robles helped to organize the robbery, offering his house as a staging location and supplying four other co-conspirators with guns, police badges, bullet-proof vests, and a police scanner. Needham provided information as to the location of drug proceeds in the house, though she did not participate in the robbery itself. Pretending to be police officers, the crew gained access to the house, subdued the occupants at gunpoint, searched the premises, and ultimately left with a bag containing $600,000 from marijuana sales.
Needham was also convicted of an attempted robbery at 22 Short Street in Mount Vernon, New York, in late 2003. There, she provided information about a marijuana dealer operating out of the location, including details about how to get inside and who to expect there. Two of her counterparts, again equipped with police weapons, badges, and vests, gained entry and handcuffed one of the occupants before searching the apartment. Finding no drugs or money, however, the crew left the scene empty-handed. Importantly, no testimony in the record indicated what amount of drugs or money the robbery crew expected to take from the premises.
Finally, Thompson was convicted of a robbery at 2615 Grand Concourse in Bronx, New York, committed in December 2003. Neither Needham nor Robles were implicated in this robbery, however several other members of the same crew participated and Thompson provided inside information about the marijuana dealing conducted from the targeted address. After knocking at the door, the four armed men stormed in and questioned a female occupant at gunpoint. Ultimately, they stole $15,000 to $30,000 found in a shoe box in one of the bedrooms.3 This appeal followed.
II. DISCUSSION
Offenses under the Hobbs Act require the government to prove, as an element, that a defendant‘s conduct affected interstate commerce. See
Under the law, all illegal drug activity, even if it is purely local in nature, has an effect on interstate commerce. Therefore, if you find that the object of the robbery at issue was to obtain illegal drugs or money earned from the sale of illegal drugs, this element is satisfied.
The law, however, has since changed. Proof of drug trafficking is no longer regarded as automatically affecting interstate commerce; instead, even in drug cases, the jury must find such an effect as part of its verdict. See Parkes, 497 F.3d at 229-30; United States v. Gomez, 580 F.3d 94, 100 (2d Cir. 2009). The appellants correctly contend that the jury never had an opportunity to make this crucial jurisdictional finding because of the district court‘s instructions.
A. Standard of Review
Normally, we would review the failure to charge an element of a crime for harmless error. See Neder v. United States, 527 U.S. 1, 9-10 (1999) (applying harmless-error analysis where an element of the offense was withheld from the jury over defendant‘s objection); Monsanto v. United States, 348 F.3d 345, 349-51 (2d Cir. 2003). But where, as in this case, a defendant has failed to timely object, we generally review for plain error. This analysis requires “(1) error, (2) that is plain, and (3) that affects the defendant‘s substantial rights. If all three conditions are met, we may exercise our discretion to notice the error, provided that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Carter, 489 F.3d 528, 537 (2d Cir. 2007) (internal citation omitted).
In a further twist, however, we have traditionally applied a “modified” plain error analysis in cases “where, as here, the source of plain error is a supervening decision.” United States v. Henry, 325 F.3d 93, 100 (2d Cir. 2003) (internal quotation marks omitted). In these instances, the government, not the defendant, “bears the burden to demonstrate that the error ... was harmless.” Id. (internal quotation marks omitted). Yet, as a number of panels have noted, it is unclear whether this standard remains in force following the Supreme Court‘s decision in Johnson v. United States, 520 U.S. 461, 466 (1997), which applied a plain error standard despite a supervening change in law. Nonetheless, these panels have often found it unnecessary to squarely address the issue, because it did not affect the outcome, and we reach the same conclusion here. See, e.g., United States v. Lee, 549 F.3d 84, 89 n. 2 (2d Cir. 2008); United States v. Thomas, 274 F.3d 655, 668 (2d Cir. 2001). The Court need not resolve this open question because, whether plain error or some modified approach is applied, our conclusions would be the same.
In determining whether error occurred, this Court examines the jury instructions based on “the law existing at the time of the appeal.” See United States v. Ballistrea, 101 F.3d 827, 835 (2d Cir. 1996). Thus, while the district court‘s instructions were consistent with the law of this circuit
B. Analysis
Since the defendants’ trial, we have rejected the view that an interstate effect can be presumed wherever the object of a robbery was to obtain illegal drugs or drug proceeds. Instead, we have held that this element must be found by a jury beyond a reasonable doubt, even where the robbery targets a drug trafficking operation. See Parkes, 497 F.3d at 230. More recently, in United States v. Gomez, 580 F.3d 94 (2d Cir. 2009), we again recognized that the interstate element of Hobbs Act robbery requires a jury finding, and that this element cannot be presumed in narcotics robberies. See id. at 100 (identifying error in instructions’ reference to congressional findings, which may have misled the jury into believing that those findings were binding upon it as a trier of fact).
In this case, the interstate instruction provided by the district court foreclosed any jury determination on the jurisdictional element. The district court charged the jury, and later repeated in a post-trial order, that if the object of the robbery “was to obtain illegal drugs or money earnings from the sale of illegal drugs,” the interstate element was established as a matter of law. Under our intervening decisions in Parkes and Gomez, this instruction improperly supplanted the required jury finding.
The remaining question, then, is whether this error affected substantial rights. “An error affects a defendant‘s substantial rights if it is prejudicial and it affected the outcome of the district court proceedings.” United States v. Thomas, 274 F.3d 655, 668 (2d Cir. 2001) (internal quotation marks omitted). Because the instruction in question involved an element on which federal jurisdiction depends, we conclude that it had the potential to affect the district court proceedings. Without an interstate nexus, the district court would have been deprived of criminal jurisdiction over these offenses altogether. See United States v. Arena, 180 F.3d 380, 389 (2d Cir. 1999); United States v. Leslie, 103 F.3d 1093, 1103 (2d Cir. 1997) (“There is nothing more crucial, yet so strikingly obvious, as the need to prove the jurisdictional element of a crime.“). Only this “jurisdictional nexus transforms the quintessential state crimes of robbery and extortion into federal crimes.” United States v. Perrotta, 313 F.3d 33, 37 (2d Cir. 2002).
The ultimate issue in this case, then, is whether the error was prejudicial. See Gomez, 580 F.3d at 102 (concluding that instruction was not prejudicial even if given in error); cf. Neder v. United States, 527 U.S. 1, 10 (1999) (applying harmless-error analysis). In United States v. Jackson, 196 F.3d 383, 386-87 (2d Cir. 1999), we interpreted the Supreme Court‘s decision in Neder, describing the analysis a reviewing court must undertake to determine whether the omission of an element was harmless. In so doing, we held that “if the evidence supporting the omitted element was controverted, harmless error analysis requires the appellate court to conduct a two-part inquiry, searching the record in order to determine (a) whether there was sufficient evidence to permit a jury to find in favor of the defendant on the omitted element, and, if there was, (b) whether the jury would nonetheless have returned the same verdict of guilty.” Jackson, 196 F.3d at 386. But see Monsanto v. United States, 348 F.3d 345, 350 (2d Cir. 2003) (expressing concern that Jackson is inconsistent with Neder); United States v. Brown, 202 F.3d 691, 701 n. 19 (4th Cir. 2000) (same). Although we review for
In this case, the government offered little or no direct evidence supporting the jurisdictional element—apart from the mere fact that the robberies targeted drug trafficking proceeds. As a result, the defendants had nothing to controvert. In short, neither side presented evidence directly addressing the jurisdictional issue we now consider. But, of course “it is axiomatic that, in a criminal case, the government must prove each and every element of the crime beyond a reasonable doubt.” United States v. Macklin, 671 F.2d 60, 65 (2d Cir. 1982). Under these circumstances, which include a supervening change in the law, we closely examine the record to determine whether the jury, had it been properly instructed, would have found the jurisdictional element satisfied, or whether the government failed to prove this element beyond a reasonable doubt.
1. Hobbs Act Conspiracy
Because the government proved a single conspiracy encompassing robberies of various drugs and drug proceeds, including cocaine and heroin, we find the interstate element satisfied for each defendant‘s conspiracy conviction. The indictment charged—and the jury found—a single Hobbs Act conspiracy in which each of the defendants participated. In support of this charge, the government presented evidence of multiple robberies targeting cocaine and heroin, including one netting eight kilograms of cocaine outside John F. Kennedy International Airport, an attempted robbery at an apartment at 139th Street and Amsterdam Avenue in Manhattan, and two separate attempts at an address on Webb Avenue in the Bronx. Robles himself participated in at least three of these robberies, though neither Needham nor Thompson was directly implicated. Because this evidence suggested the possibility of multiple conspiracies, the district court properly instructed the jury that, in order to convict, it was required to find the single conspiracy alleged in the indictment. The jury did so, crediting the government‘s allegation that the defendants commonly belonged to a conspiracy to steal drugs and drug proceeds. See United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990) (“[A] single conspiracy is not transformed into multiple conspiracies merely by virtue of the fact that it may involve two or more phases or spheres of operation, so long as there is sufficient proof of mutual dependence and assistance.“). Thus, if the overall conspiracy targeted products moving in interstate commerce, as the cocaine and heroin robberies suggest, all three defendants are liable.
To establish the jurisdictional element for Hobbs Act conspiracy, “all that need be shown is the possibility or potential of an effect on interstate commerce, not an actual effect.” United States v. Jones, 30 F.3d 276, 285 (2d Cir. 1994); see United States v. Arena, 180 F.3d 380, 390 (2d Cir. 1999). A conspiracy that targets cocaine and heroin, and the proceeds from their sale, undoubtedly meets this standard. These narcotics cannot be produced in New York, and thus necessarily travel in interstate commerce. Defendants do not suggest otherwise. While the government did not produce any expert testimony on this subject, our Court has held as recently as Gomez that a jury is capable of concluding, based on its lay knowledge, that cocaine is imported into the United States. See 580 F.3d at 102 (citing Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004)). We have no reason to take
2. Hobbs Act Robbery and Attempted Robbery
We reach a different conclusion with respect to the defendants’ substantive robbery and attempted robbery convictions: we conclude that the district court‘s error was prejudicial and thus affected the defendants’ substantial rights. While Hobbs Act jurisdiction must be proven beyond a reasonable doubt, just as any other element, we recognize that the effect on interstate commerce need only be slight or subtle. See United States v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981); United States v. Jamison, 299 F.3d 114, 118 (2d Cir. 2002) (“We have long recognized that the requirement of showing an effect on commerce involves only a minimal burden of proving a connection to interstate commerce, and is satisfied by conduct that affects commerce in any way or degree.“) (internal quotation marks omitted). Nonetheless, the evidence relating to these individual robberies did not meet even this modest threshold beyond a reasonable doubt.
Each of the substantive robberies charged involved only marijuana and the proceeds from its sale. The robbery at 4434 Baychester Avenue netted approximately $600,000 in marijuana trafficking proceeds, Thompson‘s robbery at 2615 Grand Concourse brought in $15,000 to $30,000 of the same, and no estimate was ever offered for Needham‘s attempted robbery at 22 Short Street.
Apart from the simple amount of money obtained, the government offered no evidence to support an interstate nexus for the completed robberies. It presented no proof that the marijuana sold by the victims had originated out of state, that it was sold to out-of-state customers, that the victims themselves crossed state lines in conducting their business, or that the robbery depleted assets that would have purchased goods in interstate commerce. Similarly, in the case of Needham‘s attempted robbery, the government offered no proof as to the amount of money she expected to seize on Short Street, the origin of the marijuana, whether customers hailed from out of state, or how the robbery, if successful, might have affected the business enterprise.
Finally, the government did not provide testimony of any kind about marijuana production and trafficking in New York. Yet unlike cocaine or heroin—but like many legal products—marijuana may be grown, processed, and sold entirely within New York. See Gomez, 580 F.3d at 102 n. 5 (recognizing that marijuana can be grown in-state, whereas cocaine is exclusively foreign in origin); cf. United States v. Peterson, 236 F.3d 848, 855 (7th Cir. 2001) (finding that the government failed to demonstrate victim‘s marijuana trade involved drugs originating out of state and vacating Hobbs Act conviction). Reports documenting the frequency and scale of in-state marijuana production, often implicating tens or hundreds of thousands of dollars, are abundant.4
But while an interstate effect may be “subtle” or “slight,” it must still be proven to a jury beyond a reasonable doubt. Here, there was no proof whatsoever on the interstate issue. Moreover, the jury‘s acquittals on a variety of other counts suggest that it had reason to doubt aspects of the government‘s case. For the Court, as opposed to a jury, to find that the government‘s limited evidence constitutes proof of interstate effect beyond a reasonable doubt would create an unacceptably broad presumption, one that is inconsistent with the Sixth and Fourteenth Amendments.5 In essence, it would treat any robbery involving $600,000 or more as a sufficient basis for federal jurisdiction as a matter of law. We recognize, of course, that $600,000 is a substantial sum of money. But the sheer amount of money, standing alone, does not demonstrate an interstate effect. Like the other circuits that have considered this type of bright-line rule, we decline to adopt such a presumption. See United States v. Turner, 272 F.3d 380, 387-89 (6th Cir. 2001) (holding that the mere fact a robbery targeted illegal gambling proceeds of one to two million dollars did not prove interstate nexus); United States v. McCormack, 371 F.3d 22, 28 (1st Cir. 2004), overturned on other grounds, 543 U.S. 1098, 125 S.Ct. 992, 160 L.Ed.2d 998 (2005) (“We decline to adopt any bright-line rule that an extortionate demand of a certain sum from an individual can automatically satisfy the commerce element of the Hobbs Act.“). The fact that the robberies here targeted the proceeds of marijuana sales, as opposed to some other product, does not alter this analysis—despite our colleague‘s views to the contrary.
In particular, the dissent attempts to bootstrap our Hobbs Act jurisprudence to the Supreme Court‘s interpretation of the Controlled Substances Act (CSA),
Yet Congress has chosen to require exactly this kind of precision in prosecutions under the Hobbs Act. In every case, the government must prove that the alleged offense had some effect on interstate commerce—not simply that the general activity, taken in toto, has such an effect. See
The dissent argues that its rule is consistent with our decision in Parkes because the jury would still be called upon to make a finding, albeit one with a predetermined result. Our colleague concedes that this approach may seem “formalistic,” because the outcome is “virtually certain.” Dissent at 691. But the dissent‘s rule is not a formalism, it is a fiction. In effect, the
Marijuana, as noted, may be entirely grown, processed, and sold in-state. Under these circumstances, finding jurisdiction simply because the robberies involved a substance regulated by Congress would effectively undo the jury right recognized in Parkes. See 497 F.3d at 226-30; see also Peterson, 236 F.3d at 855 (vacating Hobbs Act robbery conviction involving marijuana where the government failed to adduce any satisfactory proof of an interstate nexus). Although this interstate nexus need be only slight, it cannot be reduced to the point of vanishing altogether, as the government and the dissent would do here.
IV. CONCLUSION
For the foregoing reasons, we hereby REVERSE Robles‘s and Needham‘s convictions for Hobbs Act robbery (Count 2), Thompson‘s conviction for Hobbs Act robbery (Count 7), and Needham‘s conviction for Hobbs Act attempted robbery (Count 6), and we VACATE the judgments of the district court. The defendants’ convictions are AFFIRMED in all other respects. We REMAND the case to the district court for further proceedings consistent with this opinion.
JOSE A. CABRANES
Circuit Judge
JOSÉ A. CABRANES, Circuit Judge, dissenting in part and concurring in part:
Through reasoning that can only be described as remarkable, the majority vacates those Hobbs Act convictions in this case that involved marijuana proceeds even though it affirms those Hobbs Act convictions in this case that involved cocaine and heroin proceeds. The basis for this distinction is the majority‘s claim that “unlike cocaine or heroin ... marijuana [can] be grown, processed, and sold entirely within New York.” Majority Op. 681. From that claim the majority reasons that a properly instructed jury in this case could have concluded that the alleged robberies—netting over $600,000 in marijuana proceeds—did not “affect ... commerce” and thus did not violate the Hobbs Act. See
To be clear, I agree with the majority that this case involved an erroneous jury instruction. In 2006, then-District Judge Gerard E. Lynch applied the law of our Circuit as it stood at the time and gave the following instruction regarding the “commerce” element of the Hobbs Act,
Unlike the majority, however, I would not, as result of the error, vacate any of the Hobbs Act convictions presented for our review. For each conviction, I have no trouble concluding “beyond a reasonable doubt that the jury would have returned the guilty verdict even absent the instruction that was given.” Gomez, 580 F.3d at 102. “For that reason,” I would “hold that the error in the jury instruction was harmless.” Id. Respectfully, therefore, I dissent insofar as the majority vacates the so-called substantive robbery and attempted robbery Hobbs Act convictions (i.e., Counts Two, Six, and Seven).2
I.
I disagree with the majority‘s reasoning on two grounds. First, I reject the majority‘s premise that there was any possibility that the jury in this case could have concluded that the robberies at issue involved marijuana that was “grown, processed, and sold entirely within New York.” Majority Op. 681. In Gomez we faced a similar situation and determined that a “reasonable juror,” relying on his or her lay knowledge and common sense, was “surely capable of drawing the conclusion that a robbery undertaken with the object of stealing from a drug dealer three kilos of cocaine ... would have the required de minimis effect on interstate commerce.” 580 F.3d at 102. It is no different in this case, where the robberies targeted marijuana. Even if marijuana can be grown in New York, the marijuana sold in New York is “almost exclusively” imported from abroad. Parkes, 497 F.3d at 231 (quoting an expert witness‘s testimony).3 Thus it would take nothing short of divine intervention for a robbery involving hundreds of thousands of dollars of marijuana proceeds to fail to recover at least some money derived from the interstate or foreign drug trade. I am confident, moreover, that jurors could—and without question would—reach that conclusion based on their lay knowledge and common sense. Gomez, 580 F.3d at 102. Thus I reject the majority‘s premise that a reasonable jury could have concluded that the robberies in this case involved proceeds from exclusively “homegrown” marijuana.
Second, I disagree with the majority‘s conclusion even accepting its premise, for I am confident that a properly instructed jury in this case would have found the required effect on commerce even if the jury had assumed that the marijuana in question was “grown, processed, and sold entirely within New York.” Majority Op. 681 (emphasis added). To understand my view, one must examine our Hobbs Act jurisprudence and consider exactly what the jury, “had it been properly instructed,” Majority Op. 680, would have been told about the “commerce” element of the Hobbs Act.
The Hobbs Act provides as follows:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
The term “commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.
A properly instructed jury, therefore, would be told that, to convict on a Hobbs Act robbery count, it must find that the robbery in question had an effect on “commerce over which the United States has jurisdiction.”
To explain the meaning of “[e]ffect,” the jury would be told, under our precedents, that “only ‘a very slight effect on interstate commerce’ need be shown.” Gomez, 580 F.3d at 101 (quoting United States v. Wilkerson, 361 F.3d 717, 726 (2d Cir. 2004)); accord Parkes, 497 F.3d at 230 (“[T]he required showing of an effect on interstate commerce is de minimis.“). The jury would also be instructed that, in order to convict, it need not find an actual effect on commerce, for “[e]ven a potential ... effect on commerce will suffice.” Gomez, 580 F.3d at 101 (emphasis added) (quoting United States v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981)). Finally, the jury would be told that the government can establish the required “effect” through any kind of proof—not only could direct or indirect evidence be used to establish an effect on commerce, but “circumstantial evidence could [also] suffice.” Id. (quoting Parkes, 497 F.3d at 231 n. 11).
To explain the meaning of “commerce,” the presiding judge would be mindful that we have repeatedly held that the Hobbs Act‘s definition of “commerce” is “coextensive with the full reach of Congressional power over commerce.” Id. (emphasis added); see also
That would be particularly apt in a case like this one, where, following Parkes and Gomez, the jury is required to make an independent finding about whether a robbery targeting marijuana proceeds affects “commerce over which the United States has jurisdiction.”
I recognize, of course, that Raich addressed the Controlled Substances Act (CSA),
In sum, under Parkes and Gomez, a properly instructed jury in this case would not have been told, as the jury was erroneously told here, that “if [it] found that the object of the robbery at issue was to obtain illegal drugs or money earnings from the sale of illegal drugs, [the ‘commerce‘] element is satisfied.” Robles App. 265-66. Instead, the government could have requested—and Judge Lynch could and should have given—additional jury instructions that painted a fuller picture of the law regarding the Hobbs Act “commerce” element. Thus Judge Lynch would have told the jury, among other things, the following:
(1) In order to convict on a substantive Hobbs Act robbery count, you, the jury, must make an independent finding that the robberies at issue had an “effect” on “commerce.”
18 U.S.C. § 1951(a) ; Gomez, 580 F.3d at 100; Parkes, 497 F.3d at 230.(2) The required “effect” on commerce need only be “very slight” and can be “potential” rather than actual. Gomez, 580 F.3d at 101; Parkes, 497 F.3d at 230.
(3) “Commerce” for these purposes includes “all commerce over which
the United States has jurisdiction.” 18 U.S.C. § 1951(b) .(4) The United States’ jurisdiction over commerce encompasses marijuana that is grown, processed, and sold entirely within a single state. Raich, 545 U.S. at 5, 22.5
If the jury in this case had been given those instructions6—which are, after all, no more than a summary of well established law—I have no doubt that it would have found that the robberies alleged in Counts Two, Six, and Seven had the required effect on commerce. That is, contrary to the majority‘s analysis, I am confident that the jury would have found an effect on commerce simply by virtue of the fact that each of the robberies targeted the proceeds of marijuana sales.
Even accepting the majority‘s premise that the marijuana at issue could have been “grown, processed, and sold entirely within New York,” Majority Op. 681, “the local cultivation and use of marijuana” falls within “the scope of Congress’ authority under the Commerce Clause,” Raich, 545 U.S. at 5, 22, and thus qualifies as “commerce” for purposes of the Hobbs Act, Parkes, 497 F.3d at 230 n. 8 (“[T]he reach of the Hobbs Act is coextensive with that of the Commerce Clause of the United States Constitution.” (internal quotation marks omitted)). If the jury had been properly instructed about that law, there can be no question that it would have found the “commerce” element satisfied, even if it had determined that the marijuana in question was exclusively homegrown.
Accordingly, I have no trouble concluding “beyond a reasonable doubt that the jury would have returned the guilty verdict even absent the instruction that was given.” Gomez, 580 F.3d at 102. “For that reason,” I would “hold that the error in the jury instruction was harmless,” id., and I would affirm the convictions on Counts Two, Six, and Seven.7
I hasten to add that I am not arguing that our Court should overturn Parkes or Gomez, for I do not think that we should “dispense with the need for a jury finding that each element of the Hobbs Act has been proven beyond a reasonable doubt.” Parkes, 497 F.3d at 229. Rather, I agree with Parkes and Gomez that a jury in a Hobbs Act prosecution must make an independent finding of an effect on commerce. My point is only that the jury would almost certainly make such a finding even if it determined that the marijuana in question had been grown, processed, and sold in a single state.
Again, following Parkes and Gomez, a jury will no longer be instructed that the “commerce” element of the Hobbs Act is automatically satisfied if the jury finds that the robberies at issue targeted drugs or drug proceeds. Absent that instruction, however, it will become necessary for the jury to have a fuller account of the meaning of “commerce” under the Hobbs Act. In this case, for example, because the government had introduced no evidence that the marijuana at issue had traveled outside New York, the government could have requested—and Judge Lynch should have given—an instruction explaining that the “commerce over which the United States has jurisdiction,”
I acknowledge, furthermore, that my reasoning does imply that in cases like this one—where there was an erroneous jury instruction of the type identified in Parkes and Gomez—the erroneous instruction will almost always be found to be harmless error. But I do not think that this result is inconsistent with Parkes or Gomez. The central holding of Parkes and Gomez is that juries should not be instructed that the “commerce” element is automatically established if the alleged robberies targeted drugs. That holding remains intact even if the erroneous instruction will be found to be harmless in the vast majority of cases, and I am confident that district judges will follow Parkes and Gomez even if it is unlikely that a Parkes-type error would ever lead to a conviction being vacated on appeal.
Moreover, nothing in Parkes or Gomez is inconsistent with the idea that the erroneous instruction identified in those cases will be found to be harmless in nearly all cases. Parkes, after all, suggested in dicta that “a rational jury could conclude that the interstate commerce element is satisfied by proof that a robbery targeted drugs or proceeds of a drug business that is purely intrastate.”9 Parkes, 497 F.3d at 231 n. 10. Gomez, moreover, concluded that “even the commercial effect of homegrown drugs ... has been described by the Supreme Court as ‘visible to the naked eye,’ such that we would infer an effect on interstate commerce from purely domestic production.” 580 F.3d at 102 (quoting Raich, 545 U.S. at 28-29). And even under the majority‘s reasoning, we would find harmless error in all Hobbs Act cases involving cocaine or heroin, as the majority reasons that those drugs must, by their nature, travel in interstate commerce. Majority Op. 680.
Finally, I recognize that my reasoning makes the jury‘s independent finding of commerce seem formalistic. Under Parkes and Gomez, the jury may not be told that the “commerce” element is automatically established if the robberies at issue involved illegal drugs. But under my reasoning, after the jury is told to make an independent finding on the “commerce” element, the jury should also be instructed on the law of “commerce,” including that the United States’ jurisdiction over commerce encompasses marijuana that is grown, processed, and sold solely within a single state. Those additional instructions on the law of “commerce” make the jury‘s independent finding appear to be a formalism, as the instructions make it virtually certain that a rational jury will find the “commerce” element established in every Hobbs Act case involving drugs.
But insofar as my reasoning makes the jury‘s independent finding of commerce somewhat formalistic, such formalism is no more than a familiar and long-established feature of our jury system. Parkes changed the law of our Circuit in part because the Supreme Court‘s decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), “undid Second Circuit precedent that treated the interstate commerce element of the Hobbs Act as a matter of law for the judge.” Parkes, 497 F.3d at 227. Gaudin held that the jury—not the judge—is required to make a finding on each element of a crime, including those elements, like the “commerce” element of the Hobbs Act, that involve a “‘mixed question of law and fact.‘” 515 U.S. at 512. Nothing in Gaudin, however, implied that the judge should not instruct the jury on the law. Indeed, Gaudin repeatedly emphasized that, for mixed questions of law and fact, “the judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions.” Id. at 513; see also id. at 514,
A jury‘s independent finding, therefore, appears formalistic in cases like this, where one element of a crime is a mixed question of law and fact, and the law that the judge must explain to the jury makes it virtually certain that the jury—if it follows the law—will find the element satisfied, given a certain factual predicate. Here, for instance, the “commerce” element of the Hobbs Act is a mixed question of law and fact, and the law that the judge must explain to the jury makes it virtually certain that the jury will find the “commerce” element satisfied, given a finding that the robberies in question involved drugs. That does not mean, of course, that the judge may take the required finding away from the jury, for criminal defendants in our system have a “historical and constitutionally guaranteed right ... to demand that the jury decide guilt or innocence on every issue.” Id. at 513. But it also does not mean that the judge should refrain from fully instructing the jury about the law.
Thus, in future Hobbs Act cases, the jury may not be told that the “commerce” element is automatically established if the robberies at issue targeted drugs. That would infringe on a defendant‘s right to have the jury “decide guilt or innocence” with respect to the “commerce” element. But the jury can and should be fully instructed about the law of “commerce,” and thus the jury can and should be told that the United States’ jurisdiction over commerce,
To summarize: If the jury in this case had been properly instructed regarding the law of the “commerce” element of the Hobbs Act, I have no doubt that it would have found the “commerce” element satisfied, even if it assumed that the marijuana in question was exclusively homegrown. The erroneous instruction, therefore, was harmless, and we should affirm the substantive robbery and attempted robbery Hobbs Act convictions (i.e., Counts Two, Six, and Seven).
For those reasons, I respectfully dissent.
Notes
But which of my “model jury instructions” is not the law? It is the law that (1) the jury must make an independent finding of “commerce” and that (2) the required “effect” on commerce need only be “very slight” or “potential.” Gomez, 580 F.3d at 100-01. It is also the law that (3) “commerce” includes “all ... commerce over which the United States has jurisdiction.”
In any event, I am not arguing that “a robbery targeting $100 from the sale of wheat, gravel, or prescription drugs would all but automatically meet the Hobbs Act‘s jurisdictional requirement.” Majority Op. 689 n. 7 (emphasis added). I am arguing that, if a jury were properly instructed about Congress‘s authority to regulate even a certain type of intra-state commerce, then we could be confident that the jury would make the required “independent finding” of “commerce” simply by virtue of the fact that the robbery targeted this type of commerce.