UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GREGORY LYNN MILES, and
GERALD JEHORAM GUSTUS,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
September 5, 1997
Before DeMOSS and DENNIS, Circuit Judges, and DUPLANTIER, District
Judge.*
PER CURIAM:
In this appeal of their respective criminal convictions,
Appellants raise three issues. First, they argue that the district
court improperly instructed the jury as to the Hobbs Act; second,
they argue that they were improperly subjected to double jeopardy;
and, third, they argue that, under the Supreme Court’s decision in
United States v. Lopez, 514 U.S. 549 (1995), the Hobbs Act is
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
unconstitutional on its face, or as applied in this case, and that
the evidence is insufficient to support a finding of "substantial
effect" on commerce as they argue is required by Lopez. For the
following reasons, we affirm the judgments of the district court.
FACTUAL BACKGROUND
Appellants/Defendants Gregory Lynn Miles and Gerald Jehoram
Gustus ("Defendants") were indicted for conspiracy, four counts of
interference with interstate commerce by robbery, and four counts
of firearm violations for their participation in a series of
robberies occurring in Tarrant County, Texas over a two month
period. These Tarrant County robberies involved three McDonald's
restaurants, a Taco Bueno restaurant, and a Colters's Barbecue and
Grill. Gustus alone was indicted for the robbery and firearm
violation as to one of the five robberies involved. The following
facts were introduced at trial concerning each of the robberies and
are not disputed on appeal:
On October 18, 1991, shortly after 7:00 a.m., the Defendants
entered a McDonald's Mini-Mac on North Watson Road ("North Watson"
store) in Arlington, Texas. At gunpoint, they removed approxi-
mately $1,500 from the restaurant's safe. The Defendants were
identified at trial as the robbers by the restaurant manager
Jenette Johnson and another employee. Johnson also testified that
the North Watson store is located near Highway 360, a highway which
connects Interstate Highway 20 and Interstate Highway 35. She
further testified that the restaurant is located one-half mile from
2
the Six Flags Over Texas amusement park. According to Johnson, the
store was closed for approximately one hour following the robbery.
On November 7, 1991, Gustus robbed a second McDonald's located
on East Division Street ("East Division" store) in Arlington,
Texas. According to the testimony of a McDonald's employee,
Esmerelda Graciano, the store was robbed upon its opening at 6:00
a.m. by two men fitting the physical descriptions of the
Defendants. Graciano testified that at least one of the assailants
had a gun during the robbery. The government introduced into
evidence a written confession from Gustus regarding all five of the
robberies, including the robbery of the East Division store.1
On December 7, 1991, Defendants entered and robbed a third
McDonald's restaurant located in Euless, Texas ("Euless" store).
The store manager, Regina Woodley, testified that the Defendants,
whom she identified at trial, entered the restaurant shortly after
it opened at 6:00 a.m. and, at gunpoint, took approximately $3,000.
Woodley further testified that the store closed for a period of
time following the robbery2 and that the Euless store is located
approximately five minutes from the Dallas/Fort Worth International
Airport.
In connection with the three McDonald's robberies, the
government introduced the testimony of Richard Matson, the field
1
Defendant Miles was not indicted for this robbery or the
firearm violation connected therewith.
2
Ms. Woodley testified that the store "closed for a while"
following the robbery. In response to the question of how long the
store was closed because of the robbery, Woodley replied, "I don't
recall how long."
3
purchasing manager for the Dallas and Oklahoma regions of
McDonald's. Matson testified that, at the time of the robberies,
the North Watson and Euless stores were company-owned stores that
purchased many of their ingredients and supplies from out-of-state
locations. He also stated that the employee paychecks for the
company stores are received from the McDonald's headquarters in
Chicago, Illinois, and that the stores send their money and
receipts to the Chicago office.
Matson testified that the East Division store was a franchise
store at the time of its robbery and that franchise stores obtain
their food from the same out-of-state vendors as the company
stores. He also testified that the franchise stores send rent
payments and service fees to the McDonald's headquarters in
Chicago.
On cross-examination, Matson stated that, to his knowledge,
the robberies of the three McDonald's restaurants in Tarrant County
did not affect the shipment of goods from out of state to the
distribution centers in Texas. He further admitted that the
employee paychecks, which originated out of state, were not, to his
knowledge, disrupted because of the robberies.
On November 22, 1991, Defendants entered a Colter's Barbecue
and Grill ("Arlington Colter's") shortly after 7:30 a.m. and
removed approximately $1,300 at gunpoint from the restaurant safe.
The robbery occurred during a food delivery prior to the
restaurant's opening. According to the testimony of the restaurant
manager, Susan Brenner, the delivery driver and employees were
4
detained in the restaurant cooler during the robbery. Brenner and
another employee identified the Defendants as the perpetrators.
Brenner also testified that the restaurant is located in Arlington,
Texas, and that it is approximately one-half block from Interstate
Highway 20.
Payton Cullum, a regional vice-president of Colter's,
testified that, at the time of the robbery, the Arlington Colter's
purchased many of its products from out-of-state suppliers in
accordance with the company purchasing policy. Cullum also stated
that Colter's has catered at least one event out of state (in New
York), even though its restaurants are located solely in Texas. He
further testified that money received from sales at the Colter's
restaurants is used, in part, to purchase food and supplies from
out-of-state vendors. Cullum testified that the money taken during
the robbery of the Arlington Colter's would have been used for such
purchases.
On cross-examination, Cullum stated that the robbery of the
Arlington Colter's did not stop the company from purchasing its
products from out-of-state suppliers. Further, Cullum admitted
that, because the restaurant opened on time, the robbery did not
stop travelers on nearby Interstate Highway 20 from being able to
eat at the Arlington Colter’s.
On November 26, 1991, Defendants entered a Taco Bueno
("Arlington Taco Bueno") at 6:00 a.m. during a food delivery. At
gunpoint, the Defendants removed approximately $1,200 from the
restaurant's safe. The store manager, Jon Brdecka, identified the
5
Defendants as the robbers. Brdecka also testified that the
restaurant was not yet open for business at the time of the
robbery. According to Brdecka, he and the delivery driver were
detained in the restaurant cooler for a short period of time during
the robbery. Brdecka also testified that the restaurant is located
on South Cooper in Arlington, Texas, approximately two miles from
Interstate Highway 20. He also stated that the Arlington Taco
Bueno serves people from out of state, that he has occasionally
noticed out-of-state license plates in the parking lot, and that
his paycheck is received from out of state.
John Dunion, the vice-president in charge of purchasing for
the Black Eyed Pea restaurants, which owns Taco Bueno, testified
that Taco Bueno restaurants are located in Texas and Oklahoma and
that the restaurants purchase many of their food products from out-
of-state vendors. Dunion testified that the Arlington Taco Bueno
purchases its food from out-of-state vendors in accordance with the
company guidelines. Additionally, he testified that the money from
the Arlington Taco Bueno is deposited in a local bank and later
wired to a New York bank and held in commercial paper. Dunion
stated that money stolen from the Arlington Taco Bueno affected the
amount wired from Texas to New York for that deposit. On cross-
examination, Dunion testified that the robbery of the Taco Bueno
did not change the out-of-state purchasing habits of the company.
6
PROCEDURAL BACKGROUND
The Defendants were first charged in an eleven-count
indictment filed on April 7, 1992.3 At the time of the first
federal indictment, Defendants were in the custody of the State of
Texas awaiting trial on state charges for other robberies.4 The
federal indictment charged them with conspiracy to interfere with
commerce by robbery in violation of 18 U.S.C. § 1951, four counts
of interference with commerce by robbery in violation of 18 U.S.C.
§ 1951, and four counts of using and carrying a firearm during and
in relation to the commission of a crime of violence in violation
of 18 U.S.C. § 924(c).5 The Defendants each initially agreed to
plead guilty to three of the eleven counts in the indictment in
exchange for dismissal of the remaining counts.6 The plea
agreements, however, were subsequently rejected by United States
District Judge John McBryde as undermining the statutory purpose of
3
On July 1, 1992, the government filed a one-count information
in addition to the original indictment as to Miles only. The count
charged Miles with a felon in possession of a firearm violation (18
U.S.C. § 922(g)) for a separate offense which occurred on November
26, 1991. This information count was later dismissed pursuant to
Miles's second plea arrangement.
4
See infra notes 11-12 (discussing the information available
from the record on appeal regarding the Defendants' state
convictions.
5
Gustus was charged with an additional robbery count and
firearm count.
6
Miles agreed to plead guilty to the conspiracy to commit
robbery count, one firearm violation count, and a charge of
possession of a firearm by a felon in violation of 18 U.S.C. §
922(g). Gustus agreed to plead guilty to the conspiracy count and
two firearm violation counts.
7
sentencing,7 and the Defendants' case was set for trial. On the
day the trial was to begin, the Defendants entered into a second
plea agreement in which they each pleaded guilty to four of the
eleven counts.8 This plea agreement was accepted by Judge McBryde
and the Defendants were sentenced accordingly.9 On appeal, this
Court reversed and remanded, finding that the district court had
improperly participated in the plea negotiations. See United
States v. Miles, 10 F.3d 1135 (5th Cir. 1993).
Upon remand, the case was reassigned to United States District
Judge Terry Means who quashed the original indictment without
prejudice on May 24, 1994. Judge Means noted that the government
failed to allege the requisite effect on interstate commerce, an
essential element of a Hobbs Act violation under 18 U.S.C. § 1951.
The Defendants were reindicted on June 14, 1994, by a federal
grand jury. At the time of this second indictment, Defendants were
serving time in the state prison pursuant to state convictions for
robbery and other offenses. Miles’s state sentence was fifty
7
Under the plea agreement, Miles would have been sentenced to
approximately 204 months (17 years) and Gustus to approximately 480
months (40 years).
8
Miles pleaded guilty to the conspiracy count and three firearm
violation counts in exchange for dismissal of the remaining counts
against him, including the one-count information added to the
indictment. Gustus also pleaded guilty to the conspiracy and three
firearm counts in exchange for dismissal of the remaining counts
against him.
9
Miles was sentenced to a total of 700 months (approximately 58
years) with a three-year term of supervised release on each count.
Gustus was sentenced to a total of 750 months (approximately 63
years) with a three-year term of supervised release on each count.
8
years.10 Defendant Gustus’s state sentence subjected him to life
imprisonment after serving a sentence of fifteen years.11
The second federal indictment charged Defendants with the same
counts and violations as the original indictment, with the
exception that this later indictment included the wording
"interstate commerce."12 The Defendants pleaded not guilty and were
tried by a jury in the court of United States District Judge Eldon
10
Miles was sentenced to 50 years for his participation in the
December 18, 1991, aggravated robbery of a McDonald’s in Cooke
County, Texas. Also, when the presentence investigation report was
prepared for federal sentencing, Miles was under indictment for
aggravated robbery in Rockwall, Texas. Further, a motion to revoke
Miles’s 10-year probation sentence, previously received for another
aggravated robbery conviction, was pending.
11
Gustus was sentenced to 15 years for aggravated robbery and 35
years for aggravated sexual assault in connection with the January
16, 1991, robbery of a Dallas Burger King. Gustus was also
sentenced to 50 years for aggravated robbery and 50 years for
aggravated sexual assault in connection with the October 7, 1991
robbery of a second Burger King restaurant in Dallas. From the
record it is unclear if the above convictions were to run
concurrently or consecutively. Gustus was further sentenced to 35
years, to run concurrently with the previous convictions in Dallas,
for the December 18, 1991, aggravated robbery of a Cooke County
McDonald’s. During the commission of the above mentioned offenses,
Gustus was on probation for another aggravated robbery. Following
the above convictions, Gustus’s 10-year probation sentence was
revoked and he was sentenced to life imprisonment. His life
imprisonment was to run consecutively to his 15-year sentence which
he received previously for the January robbery of the Dallas Burger
King.
12
Defendants were charged with conspiracy to affect interstate
commerce by robbery (count 1), four counts of affecting interstate
commerce by robbery (counts 2, 6, 8, and 10) and four counts of
knowingly carrying and using a firearm in relation to the
commission of a crime of violence (counts 3, 7, 9, and 11). Gustus
was also charged with an additional robbery (count 4) and firearm
count (count 5). All of these counts used the same charging
language. We note that in these counts the government did not use
the statutory phrase "in any way or degree" in describing the
effect on interstate commerce.
9
Mahon. During their trial, Defendants timely moved for dismissal
of their charges on the grounds that the use of a de minimis
standard for determining an effect on commerce was unconstitutional
and that the government failed to show a substantial effect on
interstate commerce as required by the Hobbs Act and the Fifth
Circuit’s decision in United States v. Lopez, 2 F.3d 1342 (5th Cir.
1993), aff’d, 514 U.S. 549 (1995).13 Defendants’ motions were
denied. The Defendants were convicted on all counts and sentenced
as follows:
Miles was sentenced on the federal convictions to a total of
858 months (approximately seventy-two years). Of the total
sentence, seventy-eight months are to run concurrently to the state
sentence that Miles is currently serving in Texas, and the
remaining 780 months are to run consecutively to the state
sentence. Gustus was sentenced to a total of 1,140 months
(approximately ninety-five years). Of Gustus’s total sentence, 120
months are to run concurrently with the state sentences that Gustus
is currently serving in Texas, and the remaining 1,020 months are
to run consecutively to Gustus’s state sentences.
The Defendants filed timely notices of appeal.
DISCUSSION
13
The Defendants relied upon the Fifth Circuit’s decision in
Lopez because at the time of the trial, in late 1994, the U.S.
Supreme Court’s decision affirming the Fifth Circuit’s ruling had
not yet been handed down.
10
Miles and Gustus raise three issues on appeal. We will
address each issue in turn.
I.
Gaudin Error
Miles and Gustus first argue that the district court erred by
instructing the jury incorrectly on the elements of a Hobbs Act
offense, 18 U.S.C. § 1951.14 Holding that Defendants’ argument is
foreclosed by United States v. Parker, 104 F.3d 72 (5th Cir. 1996)
(en banc), cert. denied, 117 S. Ct. 1720 (1997), we find no error.
In relevant part, the district court instructed the jury as
follows:
If you believe beyond a reasonable doubt the
government’s evidence regarding interstate
commerce, to wit, that McDonald’s, Colters, and
Taco Bueno bought and sold merchandise that had
traveled from another state to Texas, or that the
robberies affected sales by the stores of such
merchandise, or that the money proceeds from these
stores moved in interstate commerce, or that these
stores served customers who travel in interstate
commerce, then you are instructed as a matter of
law that there was an effect on interstate
commerce....
14
The Hobbs Act states, in relevant part:
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.
18 U.S.C. § 1951(a).
11
Miles and Gustus argue that the district court’s instruction
impermissibly reserved for itself the question of whether the
alleged acts of the Defendants affected interstate commerce.
Specifically, Miles and Gustus argue that the district court’s
instruction does not comport with the Supreme Court’s holding in
United States v. Gaudin, 515 U.S. 506 (1995), which held that the
Constitution gives a criminal defendant the right to demand that a
jury find him guilty of all the elements of the crime with which he
is charged.
Subsequent to the submission of Defendants’ briefs, this Court
decided United States v. Parker, a case which is, as to the form of
the jury instruction, virtually indistinguishable from the case at
bar. In the Parker case, this Court considered, under the Supreme
Court’s ruling in Gaudin, whether the district court had erred by
reserving for itself the question of whether Parker's alleged acts
affected interstate commerce. In affirming the district court’s
instruction, we held that "the trial court committed no Gaudin-type
error." Parker, 104 F.3d at 73.
The complaint of Miles and Gustus in the instant case is
identical to the complaint of the defendant in Parker. Under the
doctrine of stare decisis, we are bound to adhere to Parker’s
earlier holding. See, e.g., United States v. Arce, 118 F.3d 335,
338 (5th Cir. 1997). In so doing, we hold that the district court
committed no Gaudin-type error.
12
II.
Double Jeopardy
Miles and Gustus argue that they were unconstitutionally
subjected to double jeopardy when they were tried and convicted
under both the Hobbs Act and 18 U.S.C. § 924(c) (using or carrying
a firearm in relation to a crime of violence). They contend that
under the test set forth in Blockburger v. United States, 284 U.S.
299 (1932), these two convictions violate the double jeopardy
prohibition.15 Like the preceding issue, however, the law is
settled in this Circuit. Defendants have no double jeopardy claim.
In United States v. Parker, 73 F.3d 48, 55 (5th Cir.), aff’d,
104 F.3d 72 (5th Cir. 1996), cert. denied, 117 S. Ct. 1720 (1997),
we also examined this same issue and held as follows:
This Circuit has acknowledged that the "same
elements" test [of Blockburger] still controls.
United States v. Martinez, 28 F.3d 444, 446 (5th
Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 281,
130 L.Ed.2d 197 (1994). Martinez case held that §§
1951 and 924(c)(1) passed the Blockburger test
because § 1951 requires proof of threats or force
but not possession of a weapon, while § 924
requires proof that the defendant used or carried a
weapon but not that the weapon was used for threat
or force. Additionally, subsequent to Martinez
this court again addressed the issue in United
States v. Gonzales, 40 F.3d 735 (5th Cir. 1994),
cert. denied, ___ U.S. ____, 115 S. Ct. 1716, 131
L.Ed.2d 575 (1995), holding that cumulative
sentences imposed pursuant to § 924 are permissible
because the legislature intended to authorize such
punishments.
15
Under Blockburger, each conviction must require proof of
a fact or element that the other does not. Blockburger, 284 U.S.
at 304.
13
Parker, 73 F.3d at 55 (footnote omitted).16 Finding that
Defendants’ argument is foreclosed by Parker, we hold that the
district court committed no error on this issue.
III.
Constitutionality of Hobbs Act and Sufficiency of Evidence in Light
of Lopez
Finally, Miles and Gustus argue that, under the Supreme
Court’s decision in Lopez, the Hobbs Act is both unconstitutional
on its face and as applied in this case. They also argue that the
evidence in this case is insufficient to support the finding of
"substantial effect" on commerce, which the Defendants argue is
required by Lopez.
During the pendency of this appeal another panel of this Court
decided United States v. Robinson, No. 96-11165 (5th Cir. Aug. 8,
1997). In Robinson, this Court relied upon United States v.
Bolton, 68 F.3d 396 (10th Cir. 1995), cert. denied, 116 S. Ct. 966
(1996), which reasons that Lopez permits the application of federal
law based on a de minimis nexus to interstate commerce, provided
that the "statute regulates an activity which, through repetition,
in aggregate has a substantial effect on interstate commerce."
Bolton, 68 F.3d at 399. Finding this reasoning unassailable, the
panel in Robinson held:
under the third category of the commerce power
described in Lopez, the particular conduct at issue
16
As to the double jeopardy issue, the original Parker panel’s
holding was affirmed and reinstated by the en banc panel. Parker,
104 F.3d at 73.
14
in any given case need not have a substantial
effect upon interstate commerce. Congress is free
to act -- and the government to apply the law -- so
long as the regulated activity, in the aggregate,
could reasonably be sought to substantially effect
interstate commerce.
Robinson, No. 96-11165, slip op. at 5009.
The argument of Miles and Gustus in the instant case as to the
effect of Lopez upon the Hobbs Act is almost identical to the
contentions of the defendant in Robinson. Under the doctrine of
stare decisis, we are bound by Robinson’s earlier holding.
Accordingly, we AFFIRM the judgments of conviction and sentences of
Gregory Lynn Miles and Gerald Jehoram Gustus.
15
16
DeMOSS, Circuit Judge, specially concurring.
I concur fully with the per curiam disposition of the alleged
Gaudin error in Part I of the foregoing opinion and with the
disposition of the double jeopardy issue in Part II. As to the
issues pertaining to the constitutionality of the Hobbs Act and the
sufficiency of the evidence, I also recognize that our decision is
controlled by the prior decision of this Court in United States v.
Robinson, No. 96-11165 (5th Cir. Aug. 8, 1996); however, I find
myself in such fundamental disagreement with the conclusions in
Robinson as to the effect of United States v. Lopez, 514 U.S. 549
(1995), on Hobbs Act prosecutions that I must register these
contrary viewpoints.
I. United States v. Lopez
In its Lopez decision, the Supreme Court restated certain
"first principles" as the foundation upon which it based its
analysis of the Commerce Clause. The first of these principles is
that the federal government is one of "enumerated powers." Lopez,
514 U.S. at 552; see U.S. CONST., art. I, § 8. These enumerated
powers are few and defined, while the powers which are to remain in
state governments are "numerous and indefinite." Id. (citing THE
FEDERALIST NO. 45, at 292-93 (James Madison) (Clinton Ressiter ed.,
1961)). "Just as the separation and independence of the coordinate
branches of the federal government serve to prevent the
accumulation of excessive power in any one branch, a healthy
balance of power between the States and the Federal Government will
reduce the risk of tyranny and abuse from either front." Id.
(citing Gregory v. Ashcroft, 504 U.S. 452, 458 (1991)). This theme
of the unique contribution of federalism in our system of
government was the key reason for the concurrences of Justices
Kennedy and O’Connor in the Lopez majority decision. In his
concurring opinion, Justice Kennedy, joined by Justice O’Connor,
stated:
The theory that two governments accord more
liberty than one requires for its realization
two distinct and discernable lines of
political accountability: one between the
citizens and the Federal Government; the
second between the citizens and the States.
Id. at 576 (Kennedy, J., concurring).
The next first principle which the Lopez court cited is that
limitations on the commerce power are inherent in the very language
of the Commerce Clause itself. Id. at 553. "The enumeration
presupposes something not enumerated; and that something, if we
regard the language or the subject of the sentence, must be the
exclusively internal commerce of a State." Gibbons v. Ogden, 22
U.S. (9 Wheat.) 1, 195 (1824).
The third principle which the Lopez court referred to was that
the power of the Commerce Clause "is subject to outer limits."
Lopez, 514 U.S. at 557. Quoting from its decision in NLRB v. Jones
& Laughlin Steel Corp., 301 U.S. 1 (1937), the Court warned that
the scope of interstate commerce power, "must be considered in
light of our dual system of government and may not be extended so
as to embrace effects upon interstate commerce so indirect and
18
remote that to embrace them, in view of our complex society, would
effectually obliterate the distinction between what is national and
what is local and create a completely centralized government."
Lopez, 514 U.S. at 557 (quoting Jones & Laughlin, 391 U.S. at 37).
Finally, the Court in Lopez clearly reaffirmed the principle
that the federal government does not have a general police power.
Id. at 566.
Using these first principles, the Supreme Court in Lopez then
identified "three broad categories of activity that Congress may
regulate under its commerce power." Id. at 558. First, Congress
may regulate the use of the channels of interstate commerce
(hereinafter "Lopez Part I"). Id. (citing United States v. Darby,
312 U.S. 100, 114 (1941) and Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241, 256 (1964)). Second, Congress is empowered
to regulate and protect the instrumentalities of interstate
commerce or persons or things in interstate commerce, even though
the threat may come only from intrastate activities ("Lopez Part
II"). Id. (citing Shreveport Rate Cases, 234 U.S. 342 (1914);
Southern Ry. Co. v. United States, 222 U.S. 20 (1911); and Perez v.
United States, 402 U.S. 146, 150 (1971)). And finally, Congress
may regulate those intrastate economic activities having a
substantial relation to interstate commerce or those activities
that substantially affect interstate commerce ("Lopez Part III").
Id. at 558-59 (citing Jones & Laughlin, 301 U.S. at 37 and Maryland
v. Wirtz, 392 U.S. 183, 196 n.27 (1968)).
Under this last category, the Court recognized in Lopez that
19
its case law had not always been clear as to whether an activity
must "affect" or "substantially affect" interstate commerce.
Nevertheless, the Court clearly concluded that, "consistent with
the great weight of our case law . . . the proper test requires an
analysis of whether the regulated activity ‘substantially affects’
interstate commerce." Id. at 559. In reviewing the history of its
own decisions relating to the exercise by Congress of the Commerce
Clause power, the Court in Lopez twice expressly pointed out that
it has never said that "Congress may use a relatively trivial
impact on commerce as an excuse for broad general regulation of
state or private activities." Id. at 558, 559 (quoting Wirtz, 392
U.S. at 197 n.27).
Accordingly, in measuring the constitutionality of a statute
under the Part III "substantial effects" test, I read Lopez to
establish the following subordinate tests, each of which must be
satisfied to uphold the constitutionality of a statute under Lopez
Part III:
1. Does the regulation control a commercial or economic
activity necessary to the regulation of some interstate
commercial activity;
2. Does the statute include a "jurisdictional nexus"
requirement to ensure that each regulated instance of the
activity substantially affects interstate commerce; and
3. Does the rationale offered in support of the
constitutionality of the statute (i.e., statutory findings,
legislative history, arguments of counsel, findings of a trial
20
court, or a reviewing court’s determination of the purposes of
the statute being challenged) have a logical stopping point
which preserves the distinction between what is national and
what is local in the activities of commerce.
These three subordinate tests must guide a reviewing court’s
determination of a statute’s constitutionality under Lopez Part
III.
In the instant case, the government argues that the Lopez
decision should be confined to its facts. It is obvious that the
statute involved in Lopez, the Gun Free School Zone Act, 18 U.S.C.
§ 922(q)(1)(A), is not the same statute as the Hobbs Act. Based
upon this distinction, the government contends that "United States
v. Robertson, [514 U.S. 669] (1995), decided five days after Lopez,
clearly demonstrates that Lopez is limited to the specific facts of
that case and that statutes such as the Hobbs Act are
constitutional." I see nothing in Robertson to support the
government’s contention.
First, Robertson involved a prosecution under the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961
et seq., and the critical issue was whether the defendant had
invested drug proceeds in an enterprise which was "engaged in or
affecting interstate commerce" as defined in RICO. In its
Robertson opinion, the Court held that the defendant had invested
in an "enterprise engaged in interstate or foreign commerce."
Robertson, 514 U.S. at 671. The Court did not mention Lopez at all
and declined to address whether or not that enterprise "affected
21
interstate commerce." Id. Furthermore, my research indicates that
the Supreme Court has never addressed the constitutionality of the
Hobbs Act as it applies to robberies, nor has the government cited
any Supreme Court case that upholds the constitutionality of the
Hobbs Act in situations involving robberies. In fact, the Lopez
court, in making its historical review of decisions interpreting
the Commerce Clause, did not cite any of its decisions involving
the Hobbs Act.
Consequently, I would decline the government’s invitation to
limit the language and analysis of the majority opinion in Lopez to
a determination of nothing more than the constitutionality of the
Gun Free School Zone Act. I suggest that it is our function as an
intermediate federal court to carefully examine the language,
reasoning, and analysis of the Supreme Court’s Lopez decision, and
to follow and apply that decision as best we can in this case.
II. The Hobbs Act
The present text of the Hobbs Act was adopted more than fifty
years ago in 1946. It amended an Act "to protect trade and
commerce against interference by violence, threats, coercion and
intimidation," which had previously been adopted in 1934. In 1942,
the United States Supreme Court in United States v. Local 807 of
International Brotherhood of Teamsters, 315 U.S. 521 (1942),
reversed a conviction, under the 1934 Act, of a labor union and
some of its members. The Court held the instructions given by the
trial court did not properly explain the language in the Act which
22
excepted "the payment of wages by a bona fide employer to a bona
fide employee" from the prohibitions of the Act. Local 807, 315
U.S. at 537. This decision precipitated the filing of the bill
which ultimately became the Hobbs Act. The decision caused such a
stir in Congress that its entire text was printed in full in the
report of the House Committee on the Judiciary which recommended
favorable passage of the Hobbs Act. The text of the Hobbs Act
itself does not contain any statutory findings. The report of the
House Judiciary Committee does not contain any legislative
findings; it simply states:
1. "The objective of title I is to prevent anyone from
obstructing, delaying, or affecting commerce, or the movement of
any article or commodity in commerce by robbery or extortion as
defined in the bill." H.R. REP. NO. 79-238, at 1369 (1945).
2. "In the light of the testimony and admissions contained
in the hearings and of the above-quoted provisions of the
Constitution, there must be agreement that those persons who have
been impeding interstate commerce and levying tribute from free-
born American citizens engaged in interstate commerce shall not be
permitted to continue such practices without a sincere attempt on
the part of Congress to do its duty of protecting interstate
commerce." Id. at 1370.
The portions of the Constitution quoted in the committee
report were:
1. "the citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States," id.
23
(quoting U.S. CONST., art. I, § 9, cl. 2); and,
2. "No tax or duty shall be laid on articles exported from
any State," id. (quoting U.S. CONST., art. I, § 9, cl. 5); and,
3. "No state shall, without the consent of the Congress, lay
any impost or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws...." Id.
(quoting U.S. CONST., art. 1, § 10, cl. 2).
A careful review of the floor debates and dialogues of members
of the House on the subject of the Hobbs Act clearly indicates that
Congress sought to address a particular evil by the passage of the
Hobbs Act: the practice of certain unions and union members in
major cities along the East Coast of the United States,
particularly New York City, who would stop trucks which were
inbound to those cities carrying loads of produce from neighboring
states and force the driver of the truck to either pay in cash a
day’s wage for a New York City union truck driver or to hire a
union truck driver to drive the truck to its destination in New
York City. In these congressional debates, the conduct most
frequently was labeled "extortion" or "paying of tribute." The
term "robbery" was used occasionally, but, more often, the term was
"highway robbery," reflecting the speaker’s focus on both the
location where the stop and "robbery" would occur, and the fact
that the individual victims were the drivers of the inbound
trucks.1 In these legislative debates there is absolutely no
1
See 91 CONG. REC. 11,899-922 (1945); see also Sam Hobbs,
The Hobbs Anti-Racketeering Bill, 13 JBA DIST. COLUM. 101-11 (1946).
The following are two quotations from the Congressional Record of
24
discussion which would indicate an intention on the part of
the House debates, describing the circumstances typically discussed
as justifications for the Hobbs Act:
Here comes a farmer with a load of
produce -- milk, butter, eggs, vegetables,
potatoes, things he has raised and produced
upon his farm. He owns that property. Into
it has gone his toil and his sweat, and that
of his wife and children, some of whom may
accompany him. As they near a State line in
going to market to sell the produce a thug
they never saw before or a coterie of thugs
comes up to the truck and says, "Here, stop
your truck." The farmer says, "Why, I do not
want to stop my truck. I am going to market."
The thug says, "Yes; but you stop your truck
now." The farmer asks, "Well, what do you
want?" The thug, "I want $9.42 if it is a big
truck or $8.41 [if] it is a little truck."
The farmer says, "I don’t want to pay it.
I don’t need your help." The thug says, "Yes;
but if you do not pay me I will knock you in
the head and knock your child or your wife in
the head." Maybe it is the man’s wife who is
with him. Then, in fear, not wishing to be
mutilated or perhaps killed, and not desiring
to see his wife and child killed, the farmer
pays the money.
91 CONG. REC. 11,911 (1945) (statement of Rep. Jennings).
Hon. Joe Eastman, then head of the Office
of Defense Transportation, told me that his
examiners reported 1,000 trucks a night being
held up and robbed in various cities of this
Union from Los Angeles to Seattle, across
through Milwaukee, Chicago, and through
Scraton, Pa., which was another hot spot,
Philadelphia, New York, and over 100 a day at
the New York end of the Holland Tunnel. He
was there begging as a witness in 1943,
pleading the cause of defense transportation,
and called attention to the numbers and
numbers of trucks loaded with shells and guns
for our Army and Navy which were held up and
robbed by those goons at the mouth of the Holland Tunnel.
Id. at 11,912 (statement of Rep. Hobbs).
25
Congress to reach robberies which might occur at the retail
locations where the produce might ultimately be delivered.
Likewise, there is no discussion in these legislative debates as to
what significance, if any, Congress attached to the words "in any
way or degree" (which were included in the Hobbs Act, just as they
had previously been included in the 1934 Act).
I turn now to the text of the Hobbs Act itself. For purposes
relevant to this case, the Hobbs Act states:
(a) Whoever in any way or degree
obstructs, delays, or affects commerce or the
movement of any article or commodity in
commerce, by robbery ... or conspires so to do
... shall be fined under this title or
imprisoned not more than twenty years or both.
(b) As used in this section --
(1) The term "robbery" means the
unlawful taking or obtaining of personal
property from the person or in the
presence of another, against his will, by
means of actual or threatened force, or
violence, or fear of injury, immediate or
future, to his person or property, or
property in his custody or possession
....
****
(3) The term "commerce" means ...
all commerce between any point in a
State, Territory, Possession, or the
District of Columbia and any point
outside thereof....
18 U.S.C. § 1951. Giving the words used in the statute their
common, ordinary meaning, Moskal v. United States, 498 U.S. 103,
108 (1990), I construe the statute as follows:
26
The gravamen of the offense proscribed by the Hobbs Act is the
obstructing, delaying, or affecting of interstate commerce. The
words "by robbery" define the cause or method by which the delay,
obstruction, or effect on interstate commerce is produced.
The elements of the crime which must be proved beyond a
reasonable doubt by the government are (i) the delay, obstruction,
or effect on interstate commerce and (ii) that such delay,
obstruction, or effect was caused by robbery. The phrase "in any
way or degree" modifies the verbs "obstructs, delays, or affects."
The phrase "commerce or the movement of any article or
commodity in commerce" is the object of the verbs "obstructs,
delays, or affects."
The prepositional phrase "between any point in a State,
Territory, Possession or the District of Columbia and any point
outside thereof" is the essential element of the definition of
"commerce" in subparagraph (b)(3); if that prepositional phrase is
inserted after the word "commerce" (where it appears in two places
in the opening sentence of subparagraph (a)), a clearer sense of
the prohibited conduct is apparent.
The dictionary definition of "commerce" is "an interchange of
goods or commodities between different countries or between areas
of the same country; trade." WEBSTER’S COLLEGE DICTIONARY 272 (1991).
The definition of the term "trade" is "the act or process of
buying, selling, or exchanging commodities at either wholesale or
retail, within a country or between countries." Id. at 1413.
"Affect" primarily means "to produce an effect or change in." Id.
27
at 23. The dictionary definition of the noun "effect" is
"something that is produced by an agency or cause; result;
consequence." Id. at 426. Applying these common, everyday
definitions, I conclude that the word "commerce," as used in the
Hobbs Act, clearly means an activity or process between a point in
one state and a point in another state. The verbs "delay,
obstruct, or affect" make good sense if the word "commerce" is read
to mean such an activity or process. Neither the verb "delay" nor
the verb "obstruct" makes good sense if the word "commerce" is
construed to mean "an entity engaged in commerce."
Finally, I note that there is nothing in the language of the
Hobbs Act that purports to define "who" might be the victim of the
robbery as defined therein. Nor is there any language that
purports to define "who" might be engaging in the interstate
commerce defined therein.
III. Constitutionality of the Hobbs Act Under Lopez Part I
Taking into consideration the plain language of the Hobbs Act
itself, the insights given by its legislative history, and the
language of the Supreme Court in Lopez, I pass quickly over Lopez
Part I because I can see no basis in law or fact for finding that
the food outlets where the robberies occurred in this case were
channels of interstate commerce. The meaning of the term "channel
of interstate commerce," Lopez, 514 U.S. at 558, must refer to the
navigable rivers, lakes, and canals of the United States; the
interstate railroad track system; the interstate highway system;
28
the interstate pipeline systems; interstate telephone and telegraph
lines; air traffic routes; television and radio broadcast
frequencies; and satellite communication frequencies on, over, and
through which flow the goods, commodities, and information which
constitute commerce between places in different states. There is
no evidence or testimony whatsoever in this case that would permit
a conclusion that any of the retail food outlets in this case
constituted "a channel of interstate commerce." Under Part I of
Lopez, therefore, the Hobbs Act is facially constitutional, but
nothing supports the constitutionality of the Hobbs Act as applied
to the facts in this case.
IV. Constitutionality of the Hobbs Act Under Lopez Part II
Under Part II of Lopez, the Supreme Court recognized that
Congress is empowered "to regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities." Lopez, 514 U.S. at 558. As indicated by
the cases cited by the Supreme Court in identifying Part II powers,
I read the term "instrumentalities of interstate commerce" to refer
to trains, planes, cars, trucks, boats, and other vehicles by which
people or commodities move in a channel of commerce; I read the
term "persons in commerce" to mean passengers, travelers,
operators, or crew members on the instrumentalities of interstate
commerce; and I read the term "things in interstate commerce" to
mean the goods or commodities being transported as cargo in
29
interstate commerce. I note that the Supreme Court used the verb
"protect" as well as the verb "regulate" in defining Part II.
Clearly under Part II of Lopez, the Hobbs Act is facially
constitutional as an exercise of congressional power to regulate
and protect the instrumentalities, people, and goods actually
moving in interstate commerce from robberies. Yet there is no
evidence or testimony in this case which could support a conclusion
that any "instrumentality of commerce," any "persons . . . in
interstate commerce," or any "things in interstate commerce" were
"obstruct[ed], delay[ed], or affect[ed]" by the subject robberies.
In the Hobbs Act, the term "robbery" is defined as "[t]he
unlawful taking or obtaining of personal property from the person
against his will by force, or violence." 18 U.S.C. § 1951(b)(1).
How can a robbery delay, obstruct, or affect commerce or the
movement of any article or commodity in commerce? Obviously, if
the "personal property" which is taken as part of the robbery is
itself a commodity "in interstate commerce," then there could be an
obstruction of the movement in interstate commerce of that
commodity, regardless of the quantity or value of that commodity
which was taken. Likewise, if the person who is robbed is,
himself, "in interstate commerce" (either as a passenger or a
traveler, or as an operator or crew member of an instrumentality of
interstate commerce operating in interstate commerce), then
whatever is taken from that person (whether it be cash money,
watches, jewelry, or credit cards, regardless of the quantity,
number, or value, thereof) could constitute an effect on commerce
30
because Congress intended that such passenger, traveler, operator,
or crew member would be protected while in interstate commerce.
These are the very circumstances and events which the legislative
history shows that Congress clearly had in mind when it passed the
Hobbs Act. These are also the circumstances which are compelled by
the plain, common-sense reading of the words of the Hobbs Act.
Thus, under Part II of Lopez, what was taken in the robbery,
and the person from whom such property was taken, determine whether
the robbery "delay[ed], obstruct[ed], or affect[ed] interstate
commerce." In each of the robberies involved in this appeal, what
was taken was cash from the cash register or safe of a retail fast
food outlet. From where did this cash come? It came from
customers as the proceeds from sales conducted on the premises of
the fast food outlets after these customers paid cash money over
the counter for the food products available. These customers were
the final retail consumers of these food products. These sales
transactions were exclusively local and intrastate in nature and
were taxable by the State of Texas under its general sales tax.
Both seller and buyer were in the same place and the transfer of
possession took the form of hand-to-hand and person-to-person
exchange, both as to the food product being sold and bought and as
to the money being given therefor as consideration. I would
conclude, then, that as a matter of law, the money taken from the
cash register was not a commodity or product moving in interstate
commerce.
31
Likewise, the persons from whom this cash was taken do not
qualify as persons "in interstate commerce." In this case, there
is absolutely no evidence that any interstate passenger or traveler
was even present on the occasion of any robbery, much less that any
such passenger or traveler was actually robbed of any of his
personal property. In one instance, there is testimony that the
driver of a delivery truck was present during one of the robberies.
Yet, as to this occasion, there is no testimony (i) that this
driver was making any kind of interstate delivery, nor (ii) that
any of the product which he was delivering was taken in the
robbery, nor (iii) that any of his personal property was taken.
Because the employees of the fast food outlet were obviously
present during the robberies, the critical question becomes whether
these employees can be considered operators or crew members of any
instrumentality of interstate commerce. I think not. An instru-
mentality of interstate commerce is something which effectuates the
movements of goods, commodities, or information from a place in one
state to a place in another state. In the case of goods and
commodities, the essential features of an instrumentality are its
abilities to move and to transport such commodities. The fast food
outlets in this case have neither essential feature. Consequently,
because neither the cash which was taken, nor the persons from whom
the cash was taken, meet the test of being "in interstate
commerce," I conclude that the evidence in this case is wholly
32
insufficient to support a finding under Lopez Part II that the
robberies at issue "delay[ed], obstruct[ed], or affect[ed]"
interstate commerce.
V. Constitutionality of the Hobbs Act Under Lopez Part III
With respect to Lopez Part III, the Supreme Court recognized
in Lopez that its case law had not always been clear as to whether
an activity must merely "affect" or "substantially affect"
interstate commerce to be within Congress’s regulatory power.
Lopez, 514 U.S. at 559. However, the Court clearly concluded that
"consistent with the great weight of our case law . . . the proper
test requires an analysis of whether the regulated activity
‘substantially affects’ interstate commerce." Id. In reviewing
the history of its own decisions relating to the exercise by
Congress of its Commerce Clause power, the Court in Lopez stressed
that it "has never declared that ‘Congress may use a relatively
trivial impact on commerce as an excuse for broad general
regulation of state or private activities.’" Id. (quoting Wirtz,
392 U.S. at 196 n.27).
Prior to the decision in Robinson, our Circuit tested two
other criminal statutes against Lopez’s requirement of a
substantial effect on interstate commerce. In United States v.
Kirk, 105 F.3d 997 (5th Cir. 1997) (en banc), petition for cert.
filed, 65 U.S.L.W. 3756 (U.S. May 5, 1997) (No. 96-1759), an
equally divided en banc court affirmed a conviction for intrastate
possession of a machine gun, 18 U.S.C. § 992(o). Three opinions
33
were filed by various judges of this Court, two opinions (endorsed
by a combination of eight judges) upholding the constitutionality
of § 922(o), and one opinion (endorsed by eight other judges)
holding that § 922(o) did not satisfy the test of Lopez Part III.
It is important to note, however, that each and every opinion in
Kirk recognized that Lopez required the use of the adverb
"substantially" in testing whether an effect on commerce passed
constitutional muster. See Kirk, 105 F.3d at 978 (opinion of
Parker, J.), 999-1000 (opinion of Higginbotham, J.), 1008 (opinion
of Jones, J.).
Subsequently, in United States v. Corona, 108 F.3d 565 (5th
Cir. 1997), we upheld the constitutionality of a federal criminal
statute involving purely intrastate activity under the third Lopez
category by reading into the statute a requirement that the
intrastate activity involved must substantially affect interstate
commerce. The Corona decision affirmed an arson conviction
involving the burning of a building rented by a taxi company. In
addition to its customary purely local trips, the taxi company
offered transportation to interstate travelers arriving at an
airport. We reasoned that Congress could criminalize the specific
activity involved, i.e., the burning of a taxi company warehouse,
because destruction of such a building could have a substantial
effect upon interstate commerce. Corona, 108 F.3d at 571.
We also concluded that under Lopez, Congress cannot
constitutionally make all arsons federal crimes; only those arsons
which substantially affect interstate commerce are subject to
34
federal regulation. The prosecution of other arsons is solely a
state concern. Thus an element of the crime of federal arson is
that the defendant’s actions had a substantial effect upon
interstate commerce. This of course requires a case-by-case
analysis. We analyzed the evidence in Corona and concluded that
the burning of a taxi-cab warehouse had such an effect and was
therefore a federal crime. 18 U.S.C. § 844(i).
Corona is important to our consideration of the Hobbs Act
because, like the Hobbs Act, the arson statute does not expressly
require that the activity regulated must have a "substantial"
effect upon interstate commerce.2 Lopez imposes the same
requirement for a constitutional prosecution of robbery under the
Hobbs Act: the robbery must have a substantial effect upon
interstate commerce to constitute a federal crime.
I would apply the same reasoning in testing the facial
constitutionality of the Hobbs Act under the third category of
Lopez. I would hold that the Hobbs Act is constitutional as
applied to a robbery or a robbery conspiracy only if the robbery
substantially affects interstate commerce. To the extent that the
Hobbs Act is read to make it a federal crime to commit a robbery
which affects interstate commerce "in any [insubstantial or de
minimis] way or degree," it is unconstitutional under Lopez.
2
Under the arson statute, the property involved must be
"used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce." 18 U.S.C. § 844(i).
35
I recognize that my conclusion conflicts with our Circuit’s
decision in Robinson and with the decisions of other circuits which
have also rejected the "substantial effect" test with respect to
the Hobbs Act.3 Respectfully, I think that our application of the
"substantial effect" test to the arson statute in Corona and to §
922(o) in Kirk mandates our application of the "substantial effect"
test to the Hobbs Act. The decision in Robinson is in conflict
with our prior holdings.
VI. Sufficiency of the Evidence
The district court denied Defendants’ motion for judgment of
acquittal, which was made at the end of the government’s case-in-
chief and renewed at the close of evidence. The court relied upon
then-Circuit precedent that a de minimis effect upon interstate
commerce was sufficient to sustain a conviction under the Hobbs
Act. See United States v. Collins, 40 F.3d 95, 99 (5th Cir. 1994),
cert. denied, 514 U.S. 1121 (1995); United States v. Stephens, 964
F.2d 424, 429 (5th Cir. 1992); United States v. Wright, 804 F.2d
843, 844 (5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987).
However, in my view, Lopez controls, and the "substantial effects"
standard applies.
3
On the other hand, I am not alone in the belief that
Lopez calls for genuine review under the substantial-effect
standard. See, e.g., United States v. Wall, 92 F.3d 1444 (6th Cir.
1996) (Boggs, J., dissenting). Cf. United States v. Nguyen, 117
F.3d 796, 798-800 (5th Cir. 1997) (Jones, J., dissenting)
(advocating the application of the substantial effects standard to
review of a conviction under the federal arson/explosion statute,
18 U.S.C. § 844(i)).
36
The dictionary gives two primary meanings for "substantial":
1. "of ample or considerable amount, quantity, size, etc.,"
and
2. "of a corporeal or material nature; real or actual."
WEBSTER’S COLLEGE DICTIONARY, supra, at 1332. One meaning is quantita-
tive, the other is qualitative. Both meanings are necessary to
fulfill the function which the Supreme Court must have intended
under Lopez III.
The quantitative meaning (i.e., ample amount) harmonizes with
the Supreme Court’s statement in Lopez that "a relatively trivial
impact on commerce" cannot be used "as an excuse for broad general
regulation of state or private activities." Lopez, 514 U.S. 558
(quoting Wirtz, 392 U.S. at 196 n.27). The qualitative meaning
(i.e., real or actual) is necessary to fix the "outer limits" of
the Commerce Clause. Id. at 557. If an effect on commerce need
only be hypothetical or conjectural or speculative or assumable,
then for all practical purposes, the requirement of an effect on
commerce is unlimited -- it extends to the broadest reach of the
human imagination.
Imaginative prosecutors and judges have produced the concepts
of "de minimis effect" and "depletion of assets," both of which
rest upon a speculative and conjectural assumption of an effect on
interstate commerce. I cannot reconcile these concepts, which our
Court in Robinson reaffirmed, with the new rule of Lopez; the
effect of the regulated activity on interstate commerce must be
substantial, that is, considerable in amount and real or actual in
37
nature. In Lopez, the Supreme Court expressly rejected the "cost
of crime" and "national productivity" theories which the government
offered in support of the constitutionality of the Gun Free School
Zones Act. See id. at 564-67. I would hold that the "de minimis
effect" and the "depletion of assets" theories should be similarly
rejected.
The evidence in this case, even when viewed in a light most
favorable to the verdict, is not sufficient to establish that the
Defendants’ activities in any of the robberies had a substantial
effect upon interstate commerce.
There is testimony in this record from which a jury could
reasonably conclude that each of these fast food outlets bought
ingredients from out-of-state suppliers; however, there is no
testimony, whatsoever, in this record upon which a jury could
reasonably conclude (or a judge determine as a matter of law) that
any of those purchases of ingredients were affected by the
robberies. There is testimony in this record upon which a jury
could reasonably conclude that these fast food outlets occasionally
served customers who travel in interstate commerce; however, there
is no testimony, whatsoever, in this record upon which a jury could
reasonably conclude (or a judge determine as a matter of law) that
the service of such interstate customers was substantially affected
by the robberies. There is evidence in this record upon which a
jury could reasonably conclude that, for relatively short periods
of time (thirty minutes to two hours), these fast food outlets were
closed following the occurrence of these robberies; however, there
38
is absolutely no testimony in this record upon which a jury could
reasonably conclude (or a judge determine as a matter of law) that
such closures substantially affected interstate commerce.4 There
is testimony in this record upon which the jury could have
reasonably concluded that the McDonald’s franchise outlet would
send rent payments and service fees to the McDonald’s headquarters
in Chicago; however, there is absolutely no evidence in this record
upon which the jury could reasonably conclude (or a judge determine
as a matter of law) that such payments were obstructed, delayed, or
affected by the robberies. There is evidence in this record upon
which the jury could reasonably conclude that the employees at the
company-owned McDonald’s outlets received their paychecks from out
of state; however, there is absolutely no testimony in this record
upon which the jury could reasonably conclude (or a judge determine
as a matter of law) that the receipt of such paychecks was
obstructed, delayed, or affected by the robberies.
The government tried these Defendants on the theory that the
Hobbs Act required the government to prove only that (i) the
Defendants committed a robbery, and (ii) the fast food outlets
where the robberies occurred had some de minimis connection with
interstate commerce. Under the government’s theory, the second
element could be proven by establishing that: the fast food outlets
received, from out-of-state sources, ingredients which they used in
4
This is true for two reasons. First, there is not a
shred of testimony that identifies the sales that might have been
lost. Second, and more critically, any sales that might have been
lost would have been local in nature.
39
their fast food products; employees in these fast food outlets were
paid with checks that were sent from out-of-state sources; proceeds
from sales of fast food products at these outlets would be sent to
a local bank for forwarding to a home office outside of the State
of Texas; these fast food outlets were located on major
thoroughfares and highways; and these fast food outlets sometimes
served customers who traveled in interstate commerce. Under the
government’s theory, proof of these factual circumstances would be
sufficient because under Circuit Court precedents, these
circumstances would permit the district judge to infer or assume,
as a matter of law, that there was a de minimis effect on commerce.
Under this theory, such an inference would not require proof that
any actual effect had in fact occurred. In my view, the facts and
circumstances proven by the government, i.e., that the fast food
outlets involved "bought and sold merchandise that had traveled
from another state to Texas," do not constitute direct evidence
that the robbery caused any obstruction, delay, or effect on
commerce. Nor do these facts permit a reasonable inference to that
effect. As a matter of fact, the witness tendered by the
government in this case to establish these out-of-state purchases
admitted on cross-examination that the robbery did not affect those
purchases. If the purchase of ingredients from out-of-state
sources was not affected by the robbery, then proof that out-of-
state purchases were made cannot have any logical bearing on
whether there was an effect on commerce. The same is true for each
of the other circumstances referred to by the government in its
40
brief and relied upon by the district court in its instruction to
the jury.
In reality, what the de minimis concept does is permit the
Hobbs Act to be read as if it said "whoever robs a business engaged
in interstate commerce shall be fined hereunder or imprisoned for
twenty years or both." This interpretation permits conviction upon
proof that goods were bought or sold in interstate commerce,
customers traveled between states, or sales proceeds were
transferred from one state to another. Obviously, this is not what
the Hobbs Act states.
Furthermore, if the Hobbs Act is construed to prohibit
robberies of any business engaged in interstate commerce, and if
"being engaged in interstate commerce" means no more than that a
business buys something from an interstate supplier or sells
something to an interstate traveler, then such judicial
interpretation extends the Hobbs Act to robberies of almost every
business establishment in this land. If the de-minimis-effect-on-
commerce test is still good law after Lopez, then Robinson and the
instant case mean that the Hobbs Act will be similarly applicable
to drug stores, grocery stores, ice cream shops, barber shops,
beauty shops, jewelry stores, video stores, auto parts stores,
liquor stores, pawn shops, and cleaners and pressers. All of these
are frequent targets of robbers. Almost every one of these
businesses will have some inventory from out of state and customers
who could be traveling between states.
41
The de-minimis-effect-on-commerce concept, therefore, violates
two of the first principles articulated by the Supreme Court in
Lopez:
1. that the federal government does not have a general
police power, Lopez, 514 U.S. at 561 n.3; and,
2. that "[t]he scope of the interstate commerce power ‘must
be considered in the light of our dual system of government and may
not be extended so as to embrace effects upon interstate commerce
so indirect and remote that to embrace them, in view of our complex
society, would effectually obliterate the distinction between what
is national and what is local.’" Id. at 557 (quoting Jones &
Laughlin, 301 U.S. at 37).
The prosecution of local crimes is generally considered to be
a state function. This is borne out by the circumstances of the
way the robberies in this case were investigated. There is no
evidence that the Federal Bureau of Investigation, the Drug
Enforcement Agency, the Bureau of Alcohol, Tobacco, and Firearms,
or any other federal agency had anything to do with the initial
investigation of any of these robberies. Nor were they involved
with the initial identification and apprehension of the Defendants.
Detectives from the local police department in the county where
these robberies occurred obtained statements from the victim
witnesses, took fingerprints at the scene, and ultimately secured
a written confession from one of the Defendants. All indications
pointed toward a speedy and successful prosecution of these
Defendants under Texas law, and Texas statutes provide for the
42
enhancement of sentences for repeat offenders and career criminals.
Indeed, prior to the federal trial, both Defendants had been
convicted in state proceedings for other similar robberies and were
in state prison serving sentences of fifty years or life without
parole. The State of Texas did all of the initial investigatory
work and was prepared to go forward with state prosecutions as to
the particular robberies in this case.
For the foregoing reasons, I conclude that the Hobbs Act is
constitutional as applied to three types of robberies: those which
occur in or involve the use of a channel of interstate commerce,
those which involve persons or things in interstate commerce, and
those robberies which have a substantial effect upon interstate
commerce. But the Hobbs Act can no longer be constitutionally
applied to robberies which produce only a de minimis effect upon
interstate commerce, such as those for which the Defendants were
convicted in this case. The evidence, when viewed in the light
most favorable to the government, falls short of establishing that
these Defendants substantially obstructed, delayed, or affected
interstate commerce or the movement of any article or commodity in
commerce, by robbery or conspiracy to commit robbery.
Accordingly, were I free of the precedent of this Circuit as
announced in United States v. Robinson, I would reverse the
judgments of conviction and sentences of Defendants and remand the
case to the district court with instructions to dismiss the
indictments.
43