United States v. Wayne Fabian

certifying In the question to the New CERTIFICATE Appeals, York of note Court we that the The foregoing hereby is certified to the question prejudice whether is required of New York Court Appeals pursuant of to like that situations of the instant case is § Second Local Circuit Rule 0.27 and New unsettled, only important but is 500.17, York of Appeals Court Rule as Indeed, recurring. also in the few short by ordered the United States Court of decided, months Brandon was since we Appeals for the Second Circuit. See, question have seen the at least twice.

e.g., U.S. Ins. Co. v. Underwriters 203-211 Realty 01-9293, Corp.,

W. St. No. 145th 2002). June WL Cir. with above consider- accordance

ations, respectfully certify we the following question to New York Court Ap- America, UNITED STATES peals: Appellee, already

Where an insured has complied with policy’s notice claim require- Wayne FABIAN, Defendant-Appellant. ment, require New does York the insur- er No. prejudice to 01-1471. demonstrate order to coverage disclaim on the based insured’s Appeals, States Court of comply policy’s failure to with the notice Second Circuit. requirement? of suit Argued: March 2002. question may certified be deemed ex- Decided: Dec. 2002. panded cover pertinent questions to other of New York law that Appeals the Court of appropriate

finds answer connection appeal.

with this And any we welcome

guidance Court Appeals might wish provide respect state law presented appeal.

issues pan- This

el retains to consider all issues

that remain before us once Court of

Appeals provided has either us with its

guidance has declined certification. hereby it

Accordingly, ORDERED

that the of this Clerk Court transmit

the New Court Appeals York a Certifi-

cate, below, together as forth set with a

complete briefs, appendix, set

record parties filed this Court.

The parties are further ORDERED to fees,

bear equally such costs if any, required by be the New York Court

of Appeals. Adler,

Roger York, NY, Bennet New for Appellant-Defendant Wayne Fabian. Holton, Dwight C. Assistant United Attorney for the Eastern District of (Alan New York Vinegrad, United States Attorney for the Eastern District of New York, Navickas, Jo Ann M. Assistant Unit- ed States for Attorney the Eastern Dis- York, brief), trict of New on Brooklyn, NY, for Appellee the United States of America. McLAUGHLIN,

Before: F.I. PARKER, POOLER, Circuit Judges. Judge F.I. PARKER dissents in part separate opinion. POOLER, Judge. Circuit Wayne Fabian appeals from his convic- Act, tions under the primarily argu- government that the failed to an show adequate connection between his crimes and interstate support commerce to feder- al For the given reasons be- low, we find the government proved the nexus to interstate commerce necessary children, and searched the her and her thus affirm jurisdiction, for Hobbs money. pair When could house for the convictions. Fabian’s they expected, cash Fabian not find the off BACKGROUND headed with her kidnaped Gomez and cash, to look her mother’s house sufficiency evi review We stayed with the Taveras children. while light most favor challenge “in the dence police captured after chase. drawing all in government, able trial, At offered into evi- favor and government’s in the ferences of conviction: one dence two certificates jury’s deferring to the assessments Perez. The cer- Montoya and one for credibility.” United States v. witnesses’ were showed Perez tificates (2d Cir.1999), Arena, and of together in 1990 convicted arrested denied, 33, 811, 121 S.Ct. 531 U.S. cert. ob- charges. Defense counsel narcotics (internal (2000) quota L.Ed.2d 13 certificates, the jected the admission of omitted). tions them for permitted but the district court in participated two robberies. Fabian Fabian have purpose showing the of would 11, 2000, first, February involved on The Montoya said Perez when Perez believed Alex Taveras1 co-conspirators and Fabian possessed proceeds. the forced their Luis Ramirez. The trio and Fabian of two counts jury convicted of Emilio Veraz. the Bronx home way into Hobbs rob- conspiracy of to commit Act shark, loan believed Veraz was a The three 1951, § bery of one in violation 18 U.S.C. identified Veraz to Ramirez had because Act in attempted Hobbs count of guy who lends Taveras as “a loan-shark 1951, § one violation of 18 and U.S.C. Veraz, money.” The three beat re- out a weapon during a brandishing count of visiting neigh- and a strained Veraz’s son of in violation 18 U.S.C. crime of violence child, thousand and stole several borhood 924(c). principal- Fabian was sentenced trial, Veraz jewelry. and some At dollars of months on each ly imprisonment driver, a retired taxi cab he was testified to be served con- charges, the Hobbs Act lent to a woman testified he $500 and also imprisonment to 84 months currently; and it repaid in two installments $300 who to be served con- charge, on the firearms and $200. secutively. 7, on 2000 in robbery, The second March Fabian, Taveras, Reynal- Queens, involved Discussion men. The Perez and several other do the Sufficiency evidence Gomez, was common law target Yessenia government the argues Fabian first Montoya. told Taveras wife of Juan Perez inter his crimes affected prove had stolen failed to Montoya Fabian that and commerce, showing necessary $300,000 in deal- state drug proceeds jurisdiction un Miami, federal support was court’s ers Act. precedent permits der the Hobbs Our Queens home or her either Gomez’s jurisdictional requirement Perez was house Manhattan. mother’s showing “a elementary Hobbs Act to be met since friend interstate commerce.” robbery, very slight effect on At the time of the Mon- school. Farrish, 146, 148 v. F.3d prison. Fabian and Taveras United States toya (2d Cir.1997) home, and citation omit- (quotation forcibly restrained entered Gomez’s government February 2001 an’s trial. testified for the Fabi- 1. Taveras ted). argues Supreme Fabian Court’s establish necessary nexus for Hobbs v. holdings Lopez, in United States jurisdiction. jurisdictional “[T]he re 549, 115 S.Ct. 131 L.Ed.2d U.S. 626 quirement Hobbs Act be satis (1995) Morrison, United States by showing fied very slight of a effect on U.S. 120 S.Ct. L.Ed.2d 658 interstate a potential commerce. Even (2000), require now subtle on will effect suffice.” prove a “demonstrable economic nexus” Farrish, (quotation 122 F.3d at 148 with interstate commerce to support omitted). Thus, citation “all that need be Thus, Hobbs Act he con- shown possibility is the or potential of an tends, abduction, local “a attendant to an commerce, effect on interstate not an actu attempted robbery of an individual ... Arena, al effect.” at 390 (quota more, provides without an insufficient ba- “ omitted). tion impossibility’ ‘Factual is sis to appropriately exercise federal crimi- no defense to inchoate offense of con jurisdiction.” nal Fabian seeks to reverse spiracy under Act.” his convictions on the three Hobbs Act Clemente, States v. 480-81 addition, charges. argues his Cir.1994); see also United Shar charge firearms must be also reversed be- (2d Cir.1999) eef, 190 F.3d (proof of predicated cause it on Hobbs Act potential effect on interstate charge in count the three of indictment. suffices for conspiracy both and substan below, given For the reasons we find our offenses); tive Act Hobbs United States v. precedent unchanged by remains either Medina, (2d 413, Cir.1996) 418 Morrison, Lopez or and affirm Fabian’s (“Many pre-existing circumstances convictions. doom a conspiracy, without rendering the very heavy Fabian “bears a in burden” conspirators any culpable less for their challenging sufficiency the of the evidence. acts.”). 993, Scarpa, 913 States F.2d (2d Cir.1990) 1003 (quotation and citation previously rejected We proposition omitted). “We must view evidence in 567-68, Lopez, 514 U.S. at 115 S.Ct. light most the government favorable to 1624, requires us to alter our de minimis possible and all construe inferences in its standard for establishing juris Hobbs Act Badalamenti, favor.” United States v. Farrish, diction. at F.3d 148-49. In 821, Cir.1986). Lopez, Supreme Court held that Con provides: Act Hobbs gress unconstitutionally pow exceeded its [wjhoever in or any way degree ob- er under in the Commerce enacting Clause structs, delays, or affects commerce or Act, School Gun-Free Zones U.S.C. any the movement of article or commod- § 922(q)(1)(A). 561, Lopez, 514 at U.S. commerce, ity in by or extortion 115 S.Ct. 1624. We held in Farrish that do, or attempts conspires or so to or the Lopez distinguished Court between or physical commits threatens violence requiring particularized statutes showing property to or person furtherance jurisdiction, of federal such as the Hobbs plan purpose of a to do anything in Act, and statutes an lacking express such

violation this section shall be fined requirement, such as the Gun-Free School imprisoned under this title or ... or Farrish, Zones Act. 122 F.3d at 149. both. Thus, “Lopez we held did not raise the 1951(a). § 18 U.S.C. jurisdictional hurdle for bring Hobbs Act precedent prosecution,” requires govern Our and reaffirmed the de min- ment make a de showing minimis imis standard. Id. at 148. support Hobbs Act impact on sufficient evidence to analyzing Lopez’s logic

Our in our anal Taveras testified Ramirez applies Act Morrison, told Fabian that Veraz was: loan 529 U.S. had ysis United also testified that Ramirez 658 shark. Taveras 14 L.Ed.2d 120 S.Ct. just Morrison, family Fabian that Ramirez’s had (2000). told Supreme Court In repaying approximately finished cause of action Veraz civil struck down $6,000 family that the had borrowed. Ra- created the Vio violence gender-related (“VAWA”), 42 mother also testified that she had mirez’s Against Women lence 13981(b). Morrison, money Veraz and taken borrowed § U.S. U.S.C. making her a loan 616-17, found Ramirez with when S.Ct. 1740. The Court Gomez,1 regard Taveras payment. Congress’ power under the Commerce he Fabian intended to non- also testified “regulat[ing] not extend Clause did $300,000 they economic, drug proceeds when violent criminal conduct based steal targeted robbery. Taveras tes- solely aggregate' effect Gomez on that conduct’s Montoya pair 120 tified that Perez told the Id. at interstate commerce.” on dealers, however, money from Miami Lopez, As stole S.Ct. 1740. 13981(b) “jur showing Fabian believed lacked a Court noted dealing and the1 of narcotics had establishing that isdictional element Florida to New York. Fur- pursuance is in traveled from federal cause action ther, Moritoya’s both brother regulate Gomez Congress’ power Perez knew Id. at 115 S.Ct. 1624. testified commerce.” noted, childhood. that sec each other since approval, The Court containing jurisdictional tions of VAWA We held that both previously upheld have various elements been illegal, dealing loansharking, while and Id. n. As the Hobbs Appeal. of 5. Courts an on interstate commerce. have effect particularized jurisdictional a requires Act Genao, 1333, v. 79 F.3d See United States find does not affect showing, we Morrison (2d Cir.1996) narcotics); (illegal Unit that Government our “the requirement . (2d Perez, v. 426 F.2d ed States ‘minimal’ effect on inter need show a Cir.1970) (loan sharking), aff'd, 402 U.S. support Hobbs Act state commerce” to 1357, (1971); L.Ed.2d 686 91 S.Ct. Farrish, 122 at 149. F.3d Travisano, v. see also United States Cir.1983) (2d (discussing loan de standard F.2d Applying the minimis then, clear, under trial, sharking).- It is our we presented to the Fabian’s that proof sharking illegal drug and precedent its burden. loan find the met fall, scope within the of the is transactions assuming arguendo Even that Fabian that the not loa Act. We hold here because stating in Veraz was a correct n sharking drug and underlying acts of loan proof no stole shark and there is proceeds affect interstate commerce— drug proceeds, impossi the fact that it was relevant bearing in that what is again out schemes does mind carry planned the ble Clemente, 22 actions what Fabian believed—Fabian’s liability. bar Hobbs Act is not of the the Hobbs relevant is are within legally F.3d at 480-81. What Veraz, crime, Fabian robbery of of Act. As the at the time the Fabian whether shark, and him to be a loan robbing was a loan shark and believed believed he deal, sharking the loan stealing proceeds of proceeds drug not whether the the depleted the available as loan actually crimes involved a shark business the See, e.g., business. There is sets that proceeds drug of a deal. the Jones, 30 F.3d depletion theory, Cir. the assets we do not 1994) (Hobbs applies when assets are believe that this is the exclusive method affecting ability [the] depleted, “thus to proving an interstate commerce nexus commodity that purchase a travels in when drug are involved. commerce.”); Travisano, 724 terstate (“[W]hen Congress passed

at 347 a statute Here, contrary to the dissent’s con making ‘loan-sharking’ activities a federal tention, Fabian and his associates did not offense, Supreme the Court sustained a perceive money merely “robbery under the statute and noted conviction proceeds.” contrary, To the Taveras testi credit transactions extortionate be fied to pattern legal of robberies of still, purely in the judgment intrastate illegal businesses. He noted that ille commerce.”). affect Congress, interstate gal drug businesses included dealers and Gomez, As to Fabian believed loan Id. robbery sharks. of the Mon question proceeds in traveled toya pattern. residence follows this same Florida, Miami, from and thus The jury, instructed that the interstate were in the stream interstate commerce. commerce nexus would met if object be Rosa, See United States v. robbery proceeds, was drug must (2d Cir.1994) (jurisdictional nexus for have believed Fabian and the other prosecution conspiracy federal to re defendants committed this home invasion good provided ceive stolen “if of the they they because believed would find conspiracy members of receive sto large sum of money originally derived goods len goods believed the were travel trafficking there. A state, even if from outside the there that specifically targets large, discreet travel.”). was no such sum of derived from interstate Peterson, United States relied on commerce affects interstate commerce. dissent, is inapposite here. 236 F.3d rely depletion We need on of assets (7th Cir.2001). Peterson, the Sev- theory case. Circuit, enth ruling addition to its Gallo, In United States v. the Fifth Cir- unproven, drugs source of cuit found an interstate commerce nexus rejected government’s alternate at- under federal money the laundering stat- tempt prove to interstate nexus when it ute, which, Act, like the requires money held printed that the fact that was that the criminal conduct affect interstate out-of-state was insufficient establish an or foreign commerce. 927 F.2d 822- nexus, interstate commerce since a con- (5th Cir.1991). Gallo, government trary holding automatically would extend agents had alleged drug observed an federal to robberies of cash in transaction between Gallo’s two Texas, co-defen- every except only place state the transaction, dants. the After one of the Washington, money besides D.C. where is Gallo, co-defendants a printed. turned over box to at Id. 853-55. We do not dis- agree agent whom an later holding. stopped on the high- this sensible Howev- er, way. agent’s differs, our The search of situation since it Gallo’s car involves box, the revealed supposed through transfer the which contained a large money. noted, sum money commerce of distinct sum of The that Fifth Circuit was “[D]rug trafficking itself derived from interstate com- affects interstate com- Although proceeds merce. the court merce. drug Peterson then The trafficking went on to discuss how the traditional have a similar effect.” at Id. 823. The court, method of proving through the nexus was “reserving judgment on a case in District, in the place crime Eastern money the took the connection between which making proper. venue activity is so illegal not drugs and the here, concludefd] [ ] as it is clear disposition State court certificate of the transportation of Gallo’s interstate com- trafficking challenges affected Fabian the district drug next ” We too believe of the 1991 state court .... Id. 823. court’s admission merce and dispositions for Perez interstate com- certificate of affect drug proceeds certifi- Moreover, Montoya. argues admitting He the robbers then would-be merce. reversible error because cates constitutes Montoya resi- such homes target prove the certificates went dence, they will find they because believe residence, and money the Gomez was at not that would exist sums of large connection, con- between a 1991 Here, the connec- drug trafficking. absent too drug robbery is viction and a drug trafficking the original tion between govern- probative. to be attenuated easily robbery is trace- goal and the ment it offered the certificates argues able, of an interstate and the evidence Perez, for show the source of information nexus is sufficient. Montoya well. robbery, the Gomez knew Thus, prior argues, “the challenges his con Fabian also Perez, es- joint conviction firearm viola brandishing for viction testimony pecially coupled when with the 924(c)(1), § arguing first tion U.S.G. of 18 made the friendship, of their long-standing must because the the conviction be vacated allegation tip- Perez had served as charged in predicate Hobbs Act offense ” likely .... ster more is invalid for count three of indictment above, discussed lack of As reviewed Evidentiary issues are proof sufficient government introduced States v. of discretion. United abuse of predicate Hobbs Act support McDermott, Cir. fense, argument fails. so Fabian’s first 2001). enjoy broad dis courts “[District argues in the Eastern next venue evidence.” cretion the admission of over gun improper charge on the District “Morever, Rule 403 reviewing when Id. allegedly pistol he brandished because max review the evidence ruling, we must County, in Bronx within Southern minimizing imizing value probative its However, charged a defendant District. (quotations effect.” Id. prejudicial its 924(c)(1) may be omitted). under 18 U.S.C. pro citations Fed.R.Evid. underly district where charged vides, is which not relevant “[e]vidence place, if he did not states, crime took “even Fed.R.Evid. admissible.” in that district.” carry relevant, the firearm use or ex may be evidence “[although Saavedra, 85, F.3d 223 90 substantially United States if value is probative cluded its denied, 532 (2d 976, Cir.2000), cert. U.S. preju outweighed danger of unfair by the (2001). 1612, dice, issues, misleading L.Ed.2d 121 S.Ct. or confusion of not appro is because venue The court did jury “[w]here That ...” district violence, priate underlying crime the certif admitting abuse its discretion 924(c)(1) are so it is for the offense.” icates of The certificates disposition. too they Perez Rodriguez-Moreno, 526 relevant establish United States because relationship, 275, 282, 1239, standing long 143 L.Ed.2d had a 119 S.Ct. U.S. (1999). shows, credibility at as source enhancing As the evidence Perez’s The district Montoya. continuing predicate information about part of least court admitted the certificates for that when it prevented Fabian recalling purpose. As the certificates’ probative during Taveras his case-in-chief. Fabian outweighed any potential jury value confu- wanted to recall Taveras to solicit testimo- sion, court the district did not abuse its ny that Taveras described Veraz a num- discretion. runner, shark, bers rather than a loan at plea Taveras’ argues allocution. Fabian

Jury charge error, this is reversible because it kept the Fabian next attacks the district jury from learning Veraz’s in- source of jury charge, court’s it arguing failed to come was from something other than loan , require government to prove an ad sharking. government argues the dis- impact verse on interstate commerce. The trict court properly refused to recall Tav- charged district court the jury that “ob eras because the district court did not taining proceeds of narcotics traffick prior believe Taveras’ statement was in- ing, is interstate commerce” and “loan consistent. plea Taveras testified his sharking, is interstate commerce.” The allocution that Veraz was “a loan shark district court also jury: instructed the runner,” and a number but at trial testified satisfy

[T]o the interstate commerce ele- only that Veraz was a loan shark. “The ment, you must beyond find a reason- court is accorded broad discretion con- able that doubt the defendant intended trolling scope and extent cross-ex- (cid:127) to rob trafficking proceeds. You Rivera, amination.” United States v. do not have to find that such (2d 876, Cir.1992). F.2d Taveras’ trial actually existed only but that the defen- testimony, did not contradict the state- they dant believed that Similarly, did. ments plea allocution, thus, he made at his respect to count to satisfy the the district court did not abuse its discre- element, interstate you must tion in refusing to allow Fabian recall beyond find a reasonable doubt that the Taveras. defendant intended to sharking rob loan

proceeds. You do not have to find that Sentencing such proceeds actually only existed but Finally, argues the district court that the defendant believed they failed appreciate power its to down- did. wardly depart at sentencing because Fabi- above, As discussed need an’s conduct fell outside the heartland of prove an impact actual on interstate conduct applicable covered Sentenc- Instead, commerce. it need show ing Guidelines. sentencing, At Fabian ar- possibility “the potential of an effect on gued that because the victims of the rob- commerce,” Jones, activities, beries were illegal involved in is, that Fabian believed he was the robberies fell outside of the heartland stealing from a loan shark and stealing of Hobbs Act activities and merited down- drug proceeds Thus, from Miami. ward departure. The district court stated: jury instruction proper. See United That’s an interesting argument. I Vasquez, States v. 87-90 just don’t think ... sentencing Cir.2001), denied, cert. 534 U.S. commission has indicated intention (2002). S.Ct. L.Ed.2d 1005 in say reason, to effect what previ- what Preclusion a mtness ously clearly would have been within the Fabian argues next the dis light heartland now in of the federalism trict court committed reversible error decisions] should be considered outside. (2d Koczuk, Cir. v. F.3d really question the U.S. That’s 2001). indicating should be There is no case law federal court and whether bring the illegal these cases. activities a case outside prosecuting Jones, 30 F.3d a Hobbs Act heartland. See I’m until there’s far as concerned As (“It no, to is of no moment therefore telling going me I’m at 286 decision clear in traveling prior properly commodity law that is in interstate com follow the law.”). clearly contem- court and this is under As illegal federal merce is federal ar- a nice by guideline. It’s its plated properly the district court exercised accept it. discretion, I am to going but Fabian’s gument we not review sentencing. as to the record is “unclear argues departure of his the Court’s awareness Conclusion for resentenc- requiring remand

power,” argues the district ing. above, given the reasons we affirm For argu- clearly considered Fabian’s court and sentences. both Fabian’s convictions reject- departure for downward ment it. ed PARKER, dissenting F.I. Circuit Judge,

“A district discretion court’s part. depart Sentencing ary refusal from join majority’s I Although most of the appealable,” is of course not but Guidelines suffi- opinion, I do not believe there was may bring if he appeal such an a defendant support evidentiary cient for the court was under “sentencing can show the involving on the Act conviction counts authority it belief lacked the the mistaken the Monto- attempted theft from downward.” depart join- ya prevents which me from residence (2d Matthews, Cir. analysis majority’s One Counts omitted). 1997) A sentence is (quotations I agree that this Court and Two. While in violation of law when a district issued only a de connection requires minimis refuses to exercise discretion court fed- commerce to establish with interstate to down to a defendant’s motion regard Act, I jurisdiction under the Hobbs eral if court is wardly depart, or the district Court, cannot, facts infer on the before in its belief that it lacks such mistaken slight impact commercial even such Ventrilla, 233 authority. United States v. in Monto- involvement the defendant’s (2d Cir.2000); see also Unit F.3d existing our ya extending situation without Tenzer, 42-43 ed States beyond its precedent logical bounds. Cir.2000). colloquy as Taking sentencing I. whole, it clear the district court Act, pro- The Hobbs U.S.C. reject argument Fabian’s considered part: in pertinent vides It therefore cannot be said that ed it. (a) any degree or ob- way discre Whoever court refused to exercise its district Matthews, structs, or delays, or affects commerce 106 F.3d at 1095. tion. See commod- court the movement article or can it be said the district Nor commerce, by ity or extortion in its belief that it lacked mistaken do, or or attempts conspires on the or so to authority downwardly depart or threatens violence physical If a case falls commits grounds asserted Fabian. property or in furtherance any person contemplated the class of cases within anything plan purpose to do it falls within the heartland. guideline, bery violation of this section shall be fined attempt Montoya’s residence was imprisoned title or under this not more to “drug proceeds,” obtain the majority twenty years, or both. than finds that as both drug dealing and loan- (b) sharking in this section— have an effect on As used interstate com-

merce, jurisdiction Act attach all on four counts. I firmly While would (3) The term “commerce” means com- agree with analysis of Counts One and Columbia, merce within the District of if Two there were evidentiary support any Territory or or Possession of the for the notion that goal of the attempt- States; all commerce between robbery ed had pro- been to obtain “drug State, any point Territory, Pos- n ceeds,” I join cannot session, majority good or the District of Columbia conscience thereof; where the evidence at any point trial outside all goal robbery showed the of the points commerce between was not within the through drug proceeds obtain any place same States outside at all. State;

such and all other commerce over jur- which United States has II.

isdiction. 1951. As majority clearly U.S.C. majority explains The that “Taveras ... Court, recognizes, this finding proof while testified he and Fabian intended to steal of an affect on interstate commerce critical $300,000 in drug proceeds when they tar- the establishment of federal geted for robbery.” Gomez The cited tes- case, a Hobbs requires only a de timony, however, reveals no such intent. affect, showing minimis of that recogniz Taveras testified as follows: ing connections to commerce even where Q The ... belief was that indirect, delayed, connections are had been stolen the guy, you didn’t Jamison, slight. United States v. know his name Montoya, but (2d 114, Cir.2002); United States ripped had off some (2d Arena, 380, Cir.1999), 180 F.3d Florida, guys in is that basically the cert. denied 531 U.S. 121 S.Ct. understanding? (2000); Jones, L.Ed.2d 13 United States v. Cir.1994). 30 F.3d gov The A Yes. ernment must demonstrate the possi Q So the going thieves were rip off

bility commerce, of an affect on interstate thief; another is say? that fair to standard, not an actual affect to meet this United States v. A Shareef Yes. (2d Cir.1999), frequently may establish a tie to interstate commerce even when the see,

conduct creating the affect illegal, Q going You were rip off t[o] one thief Jones, e.g., 30 F.3d at 286. thieves, group another that was it? majority finds little to distinguish attempted robbery Montoya’s home Yes, A sir. Queens, the conduct described in Counts Two, shows, One and testimony As the successful the intent of the residence, Bronx Veraz’s the conduct robbers was not to obtain proceeds described in Counts Three and Four. a drug Not- deal as the majority’s label seems that, view, in its goal imply, the rob- but rather to obtain robbery independent- Nor does the second origi- the victims of theft.1 While of a purely interstate ly impact drug Miami deal- may have been nal theft previously of the suc- money through depletion in ers, viewed the defendants illegally gained assets. cessful robber’s “drug proceeds” hands not as Montoya’s this seem- “robbery proceeds.” On as but in- found that Although this Court has distinction, jurisdiction minor ingly in narcot- with interstate trade terference turns. this case ics, interstate illegal, may impact while commerce, made a similar find- it has not robbery that the of has found This Court with interstate rob- that interference depletes drugs of potential purchaser jurisdic- of Hobbs Act bery is itself basis com purchaser prevents of the assets have transaction, The Fifth and Sixth Circuits thereby tion. drug of the pletion on the Jones, jurisdiction Hobbs Act based 30 found affecting interstate commerce. assets robbery of an individual’s that Similarly, it has found F.3d at 285. regular is a individual robbed where the illegally traf robbery of an individual or can be interstate commerce actor in depletes his home ficking cocaine from to use to have intended specifically shown operation the cocaine “working capital” of commerce, the funds stolen individual’s continued thus affects the (albeit robbery the victim where the forces illegal) interstate participation entity 121; an interstate Jamison, the assets of deplete see 299 F.3d commerce. bank) (for for the Parker, compensate F.Supp.2d instance States v. money (W.D.N.Y.2001) crime, the amount of im or where (finding 464-65 large so as to people affected is number of commerce under Jones pact on interstate impact. See an inevitable interstate rob and have conspired to where defendants Turner, v. 272 F.3d they believed United money persons extort Cir.2001) (6th robbery of home (examining dealers); also United States see to be (7th illegal gambling oper- an Peterson, operator of an of Cir. 236 F.3d Collins, ation); 2001) United States Act (rejecting Hobbs Cir.1995) (5th robbery (examining failed to demonstrate government when for an interstate who worked trade of individual marijuana victim’s robbery objective The defendants’ corporation). originated out drugs that involved they Court, believed state). Nevertheless, case—to steal this neither fit stolen—does not court, Montoya had himself that a has found nor other government guidelines. The any of these who robbed a robbery person of a that Mon- successfully demonstrate did not depletion-of- a similar may support dealer in interstate com- regular actor secondary robbery toya was theory. The assets merce, the stolen he intended to use any way deplete the assets does commerce, he or that funds in interstate drug dealer so originally victimized for the loss “compensate” seek to com would impact on interstate to create an finan- or other by turning to a bank funds justifying merce for relief.2 that. cial institution robbery already has done The first robbery be- take action after unable to further that the Notably, Taveras testified 1. wife, po- pretend they were that his planned defendants he was incarcerated cause investigating the Miami Gomez, officers lice less anyone, much not alert would to Gomez. they presented themselves when funds, would because she replace the seek to presence account for be unable to agreed on cross-examination 2. Taveras money. be would defendants believed failed to show that the amount tempted robbery also of an af- alleged robber money targeted sufficiently large fected interstate commerce within the impact have an inevitable on interstate meaning of the Hobbs Act. In the face Furthermore, even if commerce. interfer- failure, majority’s such a attempt robbery, ence with interstate like interfer- dismiss the attempted robbery as an at- drug interstate dealing, ence with were tempt drug to obtain danger- is a considered interference oversimplification ous of the facts and a Act, gov- commerce under the Hobbs dramatic extension of the law. presented ernment no evidence that proceeds Montoya’s

theft of the recent III. robbery deplete would somehow the assets majority The hinges jurisdic- Hobbs Act Montoya’s robbery operation, crippling tion on the pre-attempt defendants’ belief victims, ability his to rob other drug deal- that they were about to otherwise, “drug pro- steal in the future. ers defendants, however, ceeds.” The ex- majority attempts The to avoid these pressed their in quite way: belief another potential citing hurdles this Court’s de Rosa, Q cision in United States v. So the going rip thieves were off (2d Cir.1994) thief; principle another say? is that fair to “jurisdictional that a nexus for federal A Yes. prosecution” conspiracy is established where member of the conspiracy be Q You were going rip off one thief t[o] targeted goods lieves the traveling were thieves, group another that was Rosa, state. Even if out of a case it? concerning conspiracy to receive stolen

goods, jurisdic were determinative of the Yes, A sir. Act, majori tional rules for the Hobbs The attempted robbery in this case did not ty neglects the absence of a “good” from target the proceeds drug of a deal or the which to derive interstate movement in assets of a dealer. target- It instead this case. the belief of Fabian and the money ed the person of a the intended attempting robbery, others robbers Although believed to be a thief. interstate, thing that moved was the mon (Mon- the victim attempted of the ey Montoya supposedly stole from Miami toya) had potentially himself interfered drug dealers. As the Seventh Circuit has with interstate commerce by depleting the stated, however, explicitly the fact that dealers, assets of Miami attempt- involved a crime has traveled ed robbery Montoya did not further across support state lines cannot alone deplete Montoya’s the assets of original finding jurisdiction. of Hobbs See Pe Furthermore, above, victims. explained terson, 236 F.3d at (citing depletion of Montoya’s assets had no Paredes, States v. 844 n. 3 independent impact on interstate com- (11th Cir.1998)). Without evidence that merce. the robbery Montoya’s assets would de plete majority the assets of a money targeted business or individual calls the commerce, attempted involved in interstate robbery “drug proceeds.” the fact money targeted misnomer, that the allegedly originat however, Absent major- ed in Miami cannot support ity’s analysis a finding of of Counts One Two fails. Hobbs Act Simply put, the Uncomfortable skimming over the second- government failed to show ary the at- nature of the attempted defendants’ comment, without unwilling, robbery and a federal robbing robber

to declare

crime, dissent. respectfully I BECHHOEFER,

Arthur S.

Plaintiff-Appellant, JUSTICE, DEPARTMENT OF

U.S. Administration,

Drug Enforcement

Defendant-Appellee, Gelina, Jeffrey Nearing,

Robert

Defendants.

No. 01-6244. Appeals, United States Court Adams, Adams, Jr., & Anthony J. Gates Circuit. Second P.C., Rochester, NY, Plaintiff-Appel- for Argued: 2002. Oct. lant. Lee, At- Tiffany Assistant United States Dec. 2002.

Decided: Battle, Michael A. United torney, District Attorney for the Western States (Brian York, McCarthy, Assistant of New brief), Attorney, on the States United NY, Rochester, DefendanL-Appellee. CALABRESI, LEVAL, Before: PARKER, Judges. B.D. Circuit LEVAL, Judge. Circuit grant from the of sum- appeals Plaintiff by the mary to defendant judgment the Western Dis- District Court for States (Larimer, Judge). trict New York Chief against the United brought Plaintiff suit Justice, Drug En- Department (“DEA”), alleg- forcement Administration of records making that in a disclosure DEA violated plaintiff, relating to

Case Details

Case Name: United States v. Wayne Fabian

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 5, 2002

Citation: 312 F.3d 550

Docket Number: 01-1471

Court Abbreviation: 2d Cir.