UNITED STATES OF AMERICA, Appellee, – v. – FLOYD ROSE, Defendant-Appellant, JAMES ARBERRY, AKA STANLEY WOODS, Defendant.
No. 17-689
United States Court of Appeals for the Second Circuit
May 30, 2018
August Term, 2017 (Argued: March 28, 2018)
KATZMANN, Chief Judge, WALKER, Circuit Judge, and Bolden, District Judge.
B e f o r e:
KATZMANN, Chief Judge, WALKER, Circuit Judge, and Bolden,
Defendant-appellant Floyd Rose appeals the order of the United States District Court for the Southern District of New York (Oetken, J.) denying Rose‘s motion tо withdraw his plea of guilty to one count of Hobbs Act robbery,
FRANK J. BALSAMELLO (Anna M. Skotko, on the brief), Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
DEVIN MCLAUGHLIN, Langrock Sperry & Wool, LLP, Middlebury, VT, for Defendant-Appellant.
KATZMANN, Chief Judge:
Defendant-appellant Floyd Rose appeals the order of the United States District Court for the Southern District of New York (Oetken, J.) denying Rose‘s motion to withdraw his plea of guilty to one count of Hobbs Act robbery,
BACKGROUND1
At around 9:20pm on June 10, 2015, a soon-to-be robbery victim deposited money into his account at a Citibank located on West 32nd Street in Manhattan. A short time lаter, defendant Floyd Rose asked the victim for directions to a church. James Arberry (Rose‘s codefendant) approached and said he could help them find the church. As they were walking, Arberry placed a hard object against the victim‘s back and told him that he was being robbed. Arberry and Rose, however, did not take any money or property from the victim‘s person. Instead, with Rose waiting on a bench, Arberry and the victim went to the Citibank, where the victim used an ATM to withdraw $900 from his account. Arbеrry and the victim returned to the bench, where the victim gave Rose the $900. The victim was then released.
At a hearing on June 24, 2016, Rose pled guilty, pursuant to a plea agreement, to one count of Hobbs Act robbery. As Rose concedes on appeal, the district court held a “thorough” plea colloquy that “address[ed] all the required aspects of Rule 11.” Br. of Appellant at 3. During the hearing, Rose stated that “[o]n June 10, 2015, [he], with another, took a person‘s property by force and made them withdraw money from an ATM machine.” App. 32. The government agreed that that was a sufficient factual basis for the plea and “proffer[ed] that the withdrawal from the ATM machine was from a bank that does business in interstate commerсe.” Id. The court accepted the plea.
On August 4, 2016, Rose, acting pro se, sent a letter to the district court claiming that his attorney, Robert Soloway, had coerced him into pleading guilty and seeking to withdraw his guilty plea. On August 23, 2016, Rose submitted a pro se motion and affidavit to the same effect. The affidavit asserted in passing that Rоse was legally innocent because he did not use
DISCUSSION
On appeal, as below, Rose argues that the district court erred in refusing to allow him to withdraw his guilty plea. “[A] defendant may withdraw a plea of guilty after it is accepted, but beforе sentencing, only if the defendant can show a ‘fair and just reason for requesting the withdrawal.‘” United States v. Rivernider, 828 F.3d 91, 104 (2d Cir. 2016) (quoting
Rose takes a different tack on appeal than he did in the district court, and no longer disputes that his plea was knowing and voluntary. He insteаd argues that he is legally innocent of Hobbs Act robbery because the robbery had an insufficient effect on interstate commerce.
Ordinarily, “[w]e review a district court‘s denial of a motion to withdraw a guilty plea for abuse of discretion аnd any findings of fact in connection with that decision for clear error.” Rivernider, 828 F.3d at 104. However, because Rose‘s legal innocence argument is raised for the first time on appeal, we review for plain error. See United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). To prevail, Rose must “еstablish the existence of (1) an error; (2) that is plain; (3) that affects substantial rights; (4) and that seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Jones, 878 F.3d 10, 15 (2d Cir. 2017) (internal quotation marks omitted).
We find that the district court committed no error, let alone an error that was plain and affected Rose‘s substantial rights. 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 оr 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.
We have found the jurisdictional element satisfied when the victim of a robbery is an individual, as opposed to a business, in the following circumstances:
(i) where the victim directly participated in interstate commerce; (ii) where the defendant targeted the viсtim “because of her status as an employee at a company participating in interstate commerce“; (iii) where the assets of a company engaged in interstate commerce were, or would have been, depleted as a result of the harm or potential harm, respectively, to the individual victim; or (iv) where the defendant targeted the assets of a business engaged in interstate commerce rather than an individual.
United States v. Wilkerson, 361 F.3d 717, 729 (2d Cir. 2004) (quoting Perrotta, 313 F.3d at 37–38). But “where the only connection tо interstate commerce is that the victim works for a company engaged in interstate commerce, the link between the crime and interstate commerce is simply too attenuated to support federal Hobbs Act jurisdiction.” Perrotta, 313 F.3d at 36.
Rosе argues that his robbery of an individual victim lacked even a de minimis effect on interstate commerce. According to Rose, the victim was not himself engaged in interstate commerce, nor was the victim targeted because of his status as an еmployee of a firm engaged in interstate commerce. The money belonged to the victim, not Citibank, and thus no assets of a firm engaged in interstate commerce were depleted. Similarly, Rose argues that he was not targeting a firm‘s assets, but the individual victim‘s. Accordingly, although Rose concedes that he committed a state-law crime, he contends that did not commit a federal robbery.
We conclude that Rose‘s robbery falls within the scope of the Hobbs Act because Rоse “targeted the assets of a business engaged in interstate commerce rather than an individual.” Wilkerson, 361 F.3d at 729.2 Rose did not rob the victim of property on his person. Rose instead targeted the funds held in the victim‘s account at Citibank. These assets were thе property of Citibank at the time that Rose initiated the robbery. See Shaw v. United States, 137 S. Ct. 462, 466 (2016) (“When a customer deposits funds, the bank ordinarily becomes the owner of the funds and consequently has the right to use the funds as a source of loans that help the bank eаrn profits (though the customer retains the right, for example, to withdraw funds).“). Accordingly, although the victim withdrew the funds from an ATM and physically handed them to Rose (under implicit threat of violence), the target of the robbery remained the same—Citibank. Indeed,
Rose admitted as much in his plea
We are further unpersuaded by the Fifth Circuit‘s decision in United States v. Burton, upon which Rose heavily relies. 425 F.3d 1008 (5th Cir. 2005). In Burton, the Fifth Circuit held that where a robber forсes someone to withdraw money from an ATM and then steals the money, the robber has not taken anything “belonging to, or in the care, custody, control, management, or possession of” a bank for the purposes of the federal bank fraud stаtute. Id. at 1011–12 (quoting
We decline to follow Burton to the extent that it concluded that a forced ATM withdrawal, by itself, cannot support Hobbs Act jurisdiction. The mere fact that the bank did not have “custody” over the funds at the precise moment that the robber stole the victim‘s money (the key question for bank robbery, under the Burton framing) does not mean that the crime lacked a de minimis effect on interstate commerce (the key question for Hobbs Act robbery). For the reasons set forth above, we find that Rose‘s robbеry had a sufficient impact on interstate commerce to establish Hobbs Act jurisdiction.4 Rose accordingly has failed to assert his legal innocence, and the district court committed no error by denying his motion to withdraw his guilty plea. See Carreto, 583 F.3d at 157.
CONCLUSION
We hаve considered Rose‘s remaining arguments and conclude they are without merit. Accordingly, the judgment of the district court is AFFIRMED.