Lead Opinion
Defendani/Appellant Daniel Rutherford appeals his conviction under the Hobbs Act, 18 U.S.C. § 1951. The Hobbs Act makes robbery a federal crime where the robbery affects interstate commerce. Because the Government presented sufficient evidence for a reasonable jury to conclude that Rutherford’s robberies affected interstate commerce, we will affirm.
I.
On July 7, 2003 and again four days later on July 11, Defendant Daniel Rutherford robbed the DePativo Chiropractor Center (“DCC”) at 6100 Spruce Street in Philadelphia. DCC was operated by Drs. Carl and Anthony DiPativo, father and son. At the time of the robberies, DCC had three officеs: 6100 Spruce Street in Philadelphia (“Spruce Street office”), another on North Broad Street in Philadelphia (“North Broad Street office”), and one on West White Horse Pike in Berlin, New Jersey (“New Jersey office”). The Spruce Street office was on the ground floor of a residential apartment building. The two chiropractors worked at the offices along with- various receptionists and nurses. Each chiropractor often worked in more than one office per day. Among its services, DCC provided its patients with cervical collars and pillows, back supports, rib braces, neck braces, and cold packs. DCC purchased most of these items from Plymouth Bell Laboratories in Pennsylvania, which in turn purchased the goods from manufacturers around the country. DCC also obtained some medical items directly from out-of-state providers. The supplies for both Philadelphia offices were shipped to the North Broad Street office.
Rutherford’s first robbery of the Spruce Street office occurred at approximately 1:30 p.m. on July 7, while the office was open and treating patients. Rutherford entered DCC and pretended to be a potential patient. After sending an elderly patient into a treatment room, Dr. Carl De-Pativo spoke to Rutherford. Rutherford drew a handgun, pointed it at the doctor, and demanded money. Rutherford then forced Dr. Carl DePativo into a rear office, closed the door, and demanded a watch from the doctor’s desk. The doctor gave Rutherford the cash from his pocket— approximately $390 — and the watch. After ordering the doctor to stay in the room until he was gone, Rutherford left the office. The doctor then informed the police.
The second robbery, on July 11, 2003, took place at approximately 4:00 p.m. at the Spruce Street office. Rutherford was accompanied by Elijah Smith. Dr. Anthony DePativo was on duty, along with receptionist/medical assistant Leida Perez. Rutherford and Smith pretended to be potential patients. Smith asked for water, and Rutherford asked if the doctor was available. Perez answered that he was, and Rutherford identified himself to her as a new patient named Mike Westcott. When Perez turned away, Rutherford walked into Dr. Anthony DePativo’s office, drew a gun on him, and demanded money. Smith remained in the reception area, drew a gun on Perez, grabbed her by the arm, and forced her into Dr. Anthony De-Pativo’s office. The two robbers demanded money and drugs, but were told that there were no drugs in the office. Rutherford searched the drawers in the office for drugs, but found none. Rutherford then demanded the money from the doctor’s pockets. Rutherford and Smith stole $10 from the doctor and $5 from Perez, as well as jewelry from both victims, the doctor’s credit card, and Perez’s duffle bag, which contained her wallet, cell phone, and identification. The total value of the stolen cash and items was approximately $900.
On the evening of the second robbery, Dr. Anthony DePativo cancelled his appointments for patients he had scheduled to see in the New Jersey office that evening, and reported the robbery to the police. No evidence at trial suggested that the patient appointments were not successfully rescheduled, i.e. no evidence indicated that patient hours or income were lost.
After these two armed robberies in four days in July 2003, the doctors and staff became frightened. According to testimony by Dr. Carl DePativo, DCC cancelled all of its patient appointments at the Spruce Street office “[t]he week after” the robberies and had a new security door system installed. (J.A. 87.) No testimony suggested that these appointments were not rescheduled or that any patient hours were ultimately lost. Approximately eight months later, in March 2004, DCC closed the Spruce Street office, apparently because the doctors and staff were still too frightened to continue working at that location. Dr. Carl DePativo testified that “nobody wanted to work” in the office because employees were “all ... skittish about what had happened.” (J.A. 88.) The North Broad Street and New Jersey offices remain open. No testimony at trial suggested that DCC’s use of medical supplies manufactured out-of-state declined from the time of the robbery until the closing of the Spruce Street office.
On March 8, 2005, a grand jury in the Eastern District of Pennsylvania returned an indictment against Rutherford, charging him with: two counts of interference with interstate commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a); one count of conspiracy to interfere with interstate commerce by robbery, in violation of the Hobbs Act and 18 U.S.C. § 2; and two counts of knowingly using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).
Rutherford pled not guilty. After a two-day trial, the jury returned a guilty verdict on all counts in September 2005. On January 30, 2006, the District Court sentenced Rutherford to 509 months’ imprisonment: 125 months on the robbery counts and 384 months on the firearm counts, to run consecutively. The court also sentenced Rutherford to five years’ supervised release and imposed restitution of $1,290. Rutherford filed a timely appeal with this Court. Rutherford only appeals his conviction and does not appeal his sentence.
II.
Rutherford argues that there was insufficient evidence presented at trial to support the jury’s guilty verdict under the Hobbs Act. While this Court’s review of a challenge to the sufficiency of the evidence is plenary, United States v. Mussare,
Rutherford also appeals the District Court’s denial of his motion for judgment of acquittal under Federal Rule of Criminal Procedure 29. As with review of the jury verdict for insufficient evidence, our review of a motion for judgment of acquittal “is plenary and, in exercising that review, we must interpret the evidence in the light most favorable to the government as the verdict winner.” United States v. Taftsiou,
The Hobbs Act makes robbery a federаl crime where the defendant “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” 18 U.S.C. § 1951(a). “The question of whether a defendant’s acts satisfy the jurisdictional predicate of the Hobbs Act is one of law,” United States v. Buffey,
The Government contends that the interstate commerce requirement of the Hobbs Act was met here by the following evidence: 1) DCC was an open and active business engaging in and affecting interstate commerce at the time of the robberies; 2) DCC used medical items that traveled in interstate commerce; 3) after the second robbery, Dr. Anthony DePativo cancelled patient appointments at the New Jersey office because the doctor was at the police station; 4) the week following the robberies, DCC closed the Spruce Street office for a day to install a new security door; and 5) approximately eight months later, DCC closed the Spruce Street office because “they just weren’t willing to work there anymore because of the fear that these robberies began.” (J.A. 462).
Rutherford claims on appeal that the Government did not offer sufficient proof of the interstate commerce nexus to sup-port his cоnviction under the Hobbs Act. He stresses that no money or property of the DCC business was stolen in the two robberies; rather, only personal property and personal cash were stolen from the Drs. DePativo and Ms. Perez. He also notes that the Government presented no evidence that DCC lost any patients or patient hours, or purchased fewer supplies from out-of-state manufacturers after the robberies. Rutherford argues that installation of the new security door and eventual closing of the Spruce Street office should not be considered as effects of the robberies, as these events were too remote in time and were future-oriented, preventative measures. Such measures “to try to enhance their security” “might just as well have been taken if [the DePativos] had
III.
At first blush, one could reasonably question, under our federalist system, whether an otherwise “garden-variety” armed robbery of individuals in a chiropractic office could constitute a federal crime. Indeed, Rutherford’s argument on appeal boils down to the contention that the “offenses here were of a quintessentially local variety and as suсh they were for the [Commonwealth] of Pennsylvania to prosecute, not the federal government.” (Rutherford Br. at 10, 13.) As we discuss below, prosecution of these crimes by the Commonwealth of Pennsylvania might have been a more prudent course of action. However, federal courts — including our Court — have repeatedly and almost uniformly construed the Hobbs Act’s interstate commerce requirement extremely broadly. We have required only a “potential” or “de minimis ” effect on interstate commerce to support a Hobbs Act conviction. See, e.g., United States v. Urban,
Urban involved extortion by Philadelphia plumbing inspectors and specifically considered the “depletion of assets” theory, “whereby proof that a Hobbs Act violation depletes the assets of a business engaged in interstate commerce conclusively establishes the effect on commerce requirement.” Urban,
Rutherford first argues that, as a constitutional matter, the Supreme Court’s opinion in United States v. Lopez,
Turning to the statutory standard, Rutherford primarily argues that even under the de minimis, potential effects test, “the effect still must be more than a speculative, attenuated ‘one step removed’ kind of effect.” United States v. Mattson,
With regard to the latter theory, courts have indeed been hesitant to find the requisite interstate commerce nexus in cases involving robberies of individuals that have some connection with interstate commerce, and especially involving robberies of individuals in the home. See United States v. Jimenez-Torres,
Despite this disclaimer, his argument boils down to just such an inapt characterization. Rutherford stresses that he and his accomplice only stole personal cash and assets of employees at DCC, and no evidence suggests that property of the business was taken. He therefore contends that the DePativos “might well have” decided to take their subsequent actions— cancelling patient appointments, installing
Rutherford’s argument is akin to that rejected by the First Circuit in United States v. Vega Molina,
The same reasoning applies here. Rutherford’s robberies had a clear effect on morale and productivity at DCC, as demonstrated by the DePativos’ trial testimony, the installation of a new security door, and the subsequent closing of the office. Rutherford relies on the notion that the Government failed to offer any proof that the robberies resulted in any depletion of assets, reduction in purchases of interstate supplies, or loss of patient hours. However, even though the can-celled pаtient appointments apparently were rescheduled, these cancellations constitute, at minimum, a potential effect on interstate commerce and an obstruction of interstate commerce. The Hobbs Act requires no more. Based on the facts of this case, for the Government to meet its burden, it simply did not need to present proof that DCC suffered any actual loss of patient hours or other depletion of assets.
In addition, Rutherford attempted to steal drugs from the doctors’ offices; this attempt constituted a potential effect on interstate commerce in that Rutherford sought to steal business property and thereby disrupt commerce. In Perrotta, the Second Circuit outlined several instances “where a robbery or extortion of an employee of a business engaged in interstate commerce would likely support Hobbs Act jurisdiction.”
Rutherford further contends that DCC’s installation of a new security door approximately one week after the robberies was not an effect of the robbery because the old door was not damaged in the robbery, and was installed as an attempt “to ensure that no additional robberies would occur in the future.” (Rutherford Br. at 18.) It
Finally, Rutherford challenges the sufficiency of proof of the interstate commerce nexus by focusing on the length of time between the robberies and the closing of the Spruce Street office. He relies on Perrotta, in which the Second Circuit suggested that, in assessing jurisdiction under the Hobbs Act, a court should examine the “time frame charged in the indictment.” Perrotta, 313 F.3d at 3SM0.
IV.
At oral argument, counsel for the Government represented that this case was prosecuted in federal court because of information received from Elijah Smith, Rutherford’s accomplice in the second robbery, and Saeed Washington, Rutherford’s friend who worked at times for DCC. Smith and Washington pled guilty to a series of federal crimes unrelated to the offenses before us, and during the course of their cooperation with the United States Attorney’s Office for the Eastern District of Pennsylvania provided information about Rutherford and the DCC robberies.
As discussed above, sufficient evidence supported Rutherford’s conviction under the Hobbs Act. However, the prosecution of Rutherford in federal court for these robberies nonetheless implicates federalism concerns of fundamental importance. “[T]he Hobbs Act was intended to reach only certain activities that hamper interstate business, reflecting the long-recognized principle that the states are best positioned and equipped to enforce the general criminal laws.” United States v. Collins,
V.
The Government offered sufficient proof that Rutherford’s robberies affected interstate commerce such that federal jurisdiction and conviction under the Hobbs Act were proper. A rational jury could easily find that his robberies had at least a de minimis, potential effect on interstate commerce. Rutherford’s convictions under § 924(c) for carrying a firearm in connection with a crime of violence also depend on his robberies being federal crimes. We will affirm Rutherford’s convictions in their entirety.
Notes
. At oral argument, we asked counsel for Rutherford if he had cited Urban in his briefs, and if not, why. Counsel responded that "we do cite Urban in our reply brief." After a close review of both Rutherford’s initial and reply briefs, we could not locate any citation to, let alone discussion of, Urban. We suggest that counsel be more careful in the future.
. It should be noted that Jones, while addressing Congress’s authority under the Commerce Clause, ultimately avoided the constitutional question and held that the statute under review did not reach to the fullest extent of Congress’s сommerce power. Jones,
. In Perrotta, the Second Circuit declined to rely on evidence that the private dispute between the victim and the defendant affected the business where both worked because the alleged effects on the business occurred outside the range of time charged in the indictment. Perrotta,
. Rutherford argues that the District Court should not have admitted evidence regarding the new security door and closing of the Spruce Street office because they were too distant in time from the robberies and therefore not relevant to proving the requisite effect on interstate commerce. We review the District Court’s admission of evidence for abuse of discretion. United States v. Frazier,
Concurrence Opinion
concurring.
I join Judge Ackerman’s fine opinion. I write separately, however, to add to the comments made about prosecuting Rutherford at the federal level. As our opinion
What we see here, though, is a relatively new use of the Hobbs Act that deserves comment. At the age of only 25, Daniel Rutherford is already a career criminal— enough so to exceed the criminal history points necessary to reach a criminal history of VI (the maximum) under the Sentencing Guidelines. As numerous commentators have written, federal sentences are typically much longer than their state counterparts. See, e.g., Ronald F. Wright, Federal or State? Sorting as a Sentencing Choice, 21 Grim. Just., Summer 2006, at 16, 17-19; John S. Baker, Jurisdictional and Separation of Powers Strategies To Limit the Expansion of Federal Crimes, 54 Am. Univ. L.Rev. 545, 575-76 (2005); Task Force on the Federalization of Criminal Law, Am. Bar Ass’n, The Federalization of Criminal Law 14-15 (1998). In particular, brandishing a firearm while committing a crime brings a mandatory consecutive seven-year sentence, and a second such offense brings a mandatory consecutive 25-year sentence. 18 U.S.C. § 924(c)(1). The catch, of course, is that the predicate offense must be a fedеral crime. Thus, by prosecuting Daniel Rutherford for two Hobbs Act violations in which he brandished firearms, the Government achieved a mandatory 32-year sentence for the gun crimes, and a Guidelines-recommended range of 10-12 additional years for the Hobbs Act violations. Thus, we have Rutherford’s 42-year sentence — a length that would be unthinkable in many state systems for these underlying facts.
What has this wrought? By prosecuting Rutherford at the federal level, the Federal Government has effectively incapacitated a career criminal for the remainder of his adult life. To do so, however, it has overridden the default state criminal system in what looks like а classic state-law crime.
. The House Judiciary Committee’s Minority Report lambasted the nascent Hobbs Act for federalizing traditional state crimes. H.R.Rep. No. 78-66, at 14 (1944). The Majority Report did not deny it; rather, it emphasized Congress's “exclusive and unlimited power to regulate interstate commerce.” Id. at 9. Similarly, in floor debate Representative Hobbs responded to criticism that the Act was aimed exclusively at organized labor by noting that it applied to all robberies and extortions with some effect on interstate commerce. 91 Cong. Rec. 11912 (1945) (statement of Rep. Hobbs).
. For a comprehensive overview of how federal gun-related enhancements have spurred federal prosecutors to involve themselves with traditionally state crimes, see generally Sara Sun Beale, The Unintended Consequences of Enhancing Gun Penalties: Shooting Down the Commerce Clause and Arming Federal Prosecutors, 51 Duke L.J. 1641 (2002).
. As Judges McKee and Smith noted in United States v. Bonner,