United States v. Hebert

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 96-41240
____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SCYRUS DION HEBERT,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
December 15, 1997

Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL*,

District Judge.

PER CURIAM:

Defendant-appellant Scyrus Dion Hebert was convicted in

the Eastern District of Texas on four counts of bank robbery,

eleven counts of use of a firearm during the course of a violent

crime, and seven counts of interference with commerce by committing

robbery, in violation of the Hobbs Act.2

*
District Judge of the Southern District of Texas, sitting by designation.
2
The Hobbs Act reads in pertinent 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
 Hebert appeals his convictions on the following grounds:

(1) the Hobbs Act is unconstitutional under United States v. Lopez,

115 S. Ct. 1624 (1995); (2) the district court improperly

instructed the jury as to the Hobbs Act; (3) there was insufficient

evidence that Hebert knowingly affected interstate commerce or that

Hebert’s robberies had a substantial effect on interstate commerce,

necessary to support a conviction under the Hobbs Act, and

insufficient evidence that Hebert committed the robberies alleged

in the indictment, or used a firearm in connection with any of the

robberies; (4) Hebert’s arrest was without probable cause, in

violation of the Fourth Amendment; and (5) the district court erred

by imposing consecutive sentences for each firearm count.

We affirm the district court on all of Hebert’s points of

appeal, for the reasons stated below.

I. Factual Background

A. The Bank of America Robbery

On March 21, 1996, a branch of the Bank of America in

Port Arthur, Texas, was robbed at approximately 1:55 p.m. At

trial, witnesses described the robber as a black male, with a short

beard, wearing dark clothing and gloves. The robber had what

appeared to be a black nylon stocking and a red bandanna over his

head. The robber was armed with a chrome-plated handgun. The

witnesses testified that the robber burst into the bank, jumped on

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).

2
and over a teller counter, and took cash from several teller

drawers. The robber then ran out the front door.

Another witness, Jim Shoffner, testified at trial that

during the afternoon of March 21, 1996, he was in his delivery

truck parked a block from the bank. At about 2:00 p.m., Shoffner

saw a man running toward him from the direction of the bank.

Shoffner noticed that the man was carrying something that appeared

to be spraying red paint. Shoffner testified that he remembered

that banks often use dye-emitting devices to mark stolen items.

Shoffner heard a car travelling in his direction at a high rate of

speed. Shoffner noted the rear license plate number of the car,

which he later told police was FRK 93M. Shoffner also noticed that

the car was blue, had a vinyl top, had no front license plate, and

that the trunk was held shut with what appeared to be a black cord.

Shoffner thought that the car was probably a Buick, perhaps a Buick

Regal.

Shoffner testified that he noticed cash lying in the

street near where the blue car had been parked. He got out of his

truck to pick up the cash and noticed something that looked like a

“battery pack” that might emit dye. Shoffner left the “battery

pack” in the street and brought the cash to the bank. At the bank,

Shoffner telephoned the Port Arthur police. Gene Christian, a Port

Arthur police officer, went to the place where Shoffner picked up

the money and found an exploded dye-pack and a piece of a twenty-

dollar bill.

3
 Patsy Byers testified at trial that she heard reports of

the robbery and a description of the “getaway” car on her police

scanner radio. As Byers drove by Alford’s Supermarket, located

about seven or eight miles from the bank, she noticed a car parked

at a nearby gas station that matched the description of the car

given on the radio. Byers stopped at Alford’s and called the

police. Byers testified that she saw a man, whom she identified at

trial as Hebert, leave the gas station, get into the car, and drive

to Alford's Supermarket. Byers again called the police, using a

telephone at the gas station. From the gas station, Byers watched

Hebert open his trunk, “dig[] around in” it, and enter the market.

Police officer Al Gillen testified that after he heard a

radio report that the “getaway” car had been sighted at Alford's,

he drove to the supermarket. Gillen saw a car matching the

description of the getaway car parked in the parking lot. No one

was in the car. Gillen looked into the car through an open window

and saw a "reddish tint" on the inside of the driver's-side door.

Officer Mark Holmes also drove to Alford’s after hearing

the dispatcher’s report of the robbery and the witnesses’

description of the robber and the car.3 Holmes testified that at

Alford’s, he saw a car matching the description of the car

broadcast over the radio. Holmes looked through the car window and

3
The dispatcher stated that the robbery suspect was driving an early
1980s dark blue two-door Buick, with a rope hanging out of the trunk, and no
front license plate. The dispatcher read the back license number, FRK 93M. The
dispatcher described the robber as a black male, wearing a black cloth shirt,
dark blue cloth pants, black and white athletic shoes, gloves, and carrying a
small chrome pistol. The dispatcher also reported that a red dye-pack concealed
in the stolen money had exploded on the robber shortly after he fled the bank.

4
noticed a red paint-like material on the inside of the

driver’s-side door. Holmes saw a man, later identified as Hebert,

leave the store and head for the car. Holmes stopped Hebert and

asked his name. The suspect stated that his name was “Scyrus.”

Holmes asked Hebert if one of the vehicles in the parking lot was

his. Hebert hesitated, then indicated the Buick. Holmes asked

Hebert where he was coming from. Hebert volunteered that he lived

in Beaumont, had become lost, and had had a flat tire on a nearby

road. During the conversation, Holmes noticed that Hebert had a

red substance on his pants and hands and was wearing black and

white athletic shoes. As Hebert was talking to Holmes, officer

Gillen, standing nearby, also noticed a red color on Hebert's pants

leg. These details matched the dispatcher’s description of the

robbery suspect. Holmes detained and handcuffed Hebert.

The police officers took Jim Shoffner to the Alford’s

parking lot, where Shoffner identified the Buick as the vehicle he

had seen driving toward him earlier that day. The police officers

towed the Buick to the station, obtained a search warrant, and

searched the car. Holmes testified that in the search, he saw

and/or recovered a nylon woman’s stocking; a sweatshirt and socks

with a red dye-like substance on them; and an inflated tire.

At trial, the government presented evidence that the red

substance found on Hebert, his clothes, and his car was the dye

emitted during the Bank of America robbery.4

4
An employee of the company that manufactured the dye-packs taken in
the robbery testified that the red substance on the recovered money, the clothing
from Hebert’s car, and Hebert’s car itself appeared to be the dye emitted from

5
 B. The Other Robberies

A series of bank, restaurant, and liquor store robberies

had taken place in the Beaumont, Texas area between November 1995

and March 1996. The businesses robbed were a Texas Commerce Bank

branch, a Hardee’s restaurant, a Piccadilly Cafeteria, A.J.’s

Discount Liquor Store, a Lucky Liquor, Inc. Store, Debb’s Liquor

Store, a Mr. Gatti’s restaurant, and two robberies each of the

Southeast Affiliated Federal Employees Credit Union and a Popeye’s

Chicken restaurant. Witnesses to most of these robberies described

the robber as wearing a red bandanna. The Port Arthur Bank of

America robber also wore a red bandanna.

At trial, the manager of the Hardee’s restaurant robbed

on November 9, 1995 testified that the robber was a black male

carrying a chrome-plated gun, wearing a red bandanna. The manager

positively identified Hebert as the robber at trial.

An employee of the Popeye’s restaurant robbed on November

8 and 12, 1995, described the robber as a black male carrying a

chrome semi-automatic handgun, wearing a red bandanna. The

assistant manager testified that she saw the robber during the

the Bank of America dye-packs. The employee testified that the dye, known as
“1MAAQ,” is unique to his company and is registered with the FBI. The employee
also testified that the only way a person can be marked by the dye is by handling
a dye-pack. The director of the Jefferson County Sheriff’s Department Regional
Crime Lab testified that he and his staff gathered evidence from Hebert’s car,
including car parts and clothing stained with red dye, and took swabbings from
red stains on Hebert’s hands. An examiner in the chemistry toxicology unit at
the FBI lab testified that he was familiar with 1MAAQ. The examiner testified
that the gloves used by the Regional Crime Lab technicians to swab Hebert’s hands
tested positive for 1MAAQ, as did the swabbings of Hebert’s hands, the dye-pack
remnant and money recovered from Fifteenth Street, clothing from Hebert’s car,
parts of the car’s driver’s-side door, money found in the car, and Hebert’s left
tennis shoe.

6
second robbery. She also described the robber as a black male,

wearing a red bandanna, carrying a silver gun.

An employee with the Piccadilly’s Cafeteria that was

robbed on November 9, 1995 testified that the robber was a black

male wearing a red bandanna. The employee testified that the

robber held a chrome-plated semi-automatic pistol, turned to the

side.

The Southeast Affiliated Federal Employees Credit Union

was robbed twice, on November 14, 1995, and January 2, 1996. A

teller testified that the first robbery was committed by a black

male carrying a small silver-chromed gun, and that the second

robbery was committed by the same person carrying a similar gun and

wearing a red bandanna and black and white tennis shoes. The

teller also observed from a videotape and photographs of the

robbery that the robber held the gun turned to the side. Another

witness present at the first credit union robbery testified that

the robber was a black male, carrying a small, silver, shiny

pistol, and wearing a nylon stocking over his head and a red scarf

or bandanna. The president of the credit union testified that

Hebert had been a customer of the credit union from March 9, 1992

to July 16, 1993.

A teller at the Texas Commerce Bank that was robbed on

November 29, 1995 testified that the robber was a black male

carrying a chrome semi-automatic pistol. Another teller testified

that the robber was a black male, carrying a silver gun, and

wearing a red bandanna. The manager of a business located next to

7
the Texas Commerce Bank saw a black male wearing black and white

shoes, holding a chrome-plated handgun turned sideways, running

away after the robbery.

An identification technician specialist with the Port

Arthur Police Department also testified that a shoe print from the

Bank of America teller counter that the robber jumped on was

similar to the print of the bottom of the shoes Hebert was wearing

when he was arrested. An examiner from the FBI lab compared

footprints taken from the Bank of America teller counter and the

teller counter of the Texas Commerce Bank that was robbed, with

Hebert’s shoes. The examiner concluded that the shoes corresponded

in design and physical size to the latent prints.

The manager of A.J.’s Liquor Store, robbed on February

16, 1996, testified that the robber was a male carrying a chrome-

plated, automatic gun, wearing a bandanna. Earlier that day,

Hebert’s payroll check was cashed at A.J.’s. Hebert’s other

payroll checks were cashed at other locations.

The owner of Debb’s Liquor Store, which was robbed on

March 5, 1996, testified that the robber was a black male, carrying

a silver semi-automatic pistol, wearing a stocking and a red

bandanna.

An employee of the Mr. Gatti’s restaurant robbed on March

20, 1996 testified that the robber was a black male carrying a

silver pistol, wearing a black nylon stocking over his face and

black and white athletic shoes. The employee identified the shoes

as the same shoes that Hebert wore when he was arrested. The

8
assistant manager of Mr. Gatti’s identified clothing found in

Hebert’s car, and Hebert’s shoes, as similar to the clothing and

shoes that the robber wore during the Mr. Gatti’s robbery. She

also testified that he used a silver handgun.

The superintendant at the Industrial Metal Company in

Beaumont testified that Hebert worked for Industrial Metal as a

structural steel fitter until he was laid off on March 20, 1996,

the day of the Mr. Gatti’s robbery and the day before the Texas

Commerce Bank robbery. The superintendant testified that Hebert

often wore a red bandanna at work.

An individual named Kevin Stewart testified that he

bought a chrome .38 caliber semi-automatic pistol for Hebert’s wife

in August 1995. Stewart last saw the gun in the possession of

Hebert’s wife in September 1995.

An FBI agent who reviewed the bank accounts of Hebert’s

wife (Hebert did not have any bank accounts) testified that

deposits were made to those accounts that were inconsistent with

the income of Hebert and his wife. Several “suspicious” deposits

were made near the time of some of the robberies. One day before

the A.J.’s Liquor Store robbery, Hebert’s wife had $2,374.21 in her

checking and savings accounts; four days later, Hebert and his wife

bought a used car with $6,000 cash. The agent was unable to locate

any source of income for Hebert or his wife that would explain this

and other large cash purchases.

The agent also testified that the Popeye’s restaurant and

A.J.’s Liquor Store that were robbed are located only one or two

9
blocks from Hebert’s residence; Debb’s Liquor Store is located near

Hebert’s parents’ residence. Hebert’s superintendent testified

that the Texas Commerce Bank that was robbed is located two to

three minutes away from Hebert’s jobsite.

C. The Evidence of the Effect of the “Hobbs Act” Robberies
on Interstate Commerce

The government presented evidence that each of the stores

and restaurants robbed had lost money that would have been used to

buy supplies and goods from out of state. The Hardee’s manager

testified that the restaurant bought many of its supplies from

Ardmore, Oklahoma, and that the $117 taken in the robbery would

have been used to buy supplies and pay employees. The Popeye’s

manager testified that the restaurant bought its chicken from

Arkansas and other supplies from Louisiana. She testified that the

$500 taken in the two Popeye’s robberies would have been used to

purchase chicken and supplies from out of state. The cashier of

the Picadilly Cafeteria testified that fifty to sixty percent of

the cafeteria’s food items came from out of state. The cashier

testified that $600 was taken in the robbery. The Picadilly chain,

consisting of 130 restaurants located in the south and southeast

United States, is headquartered in Louisiana. The manager of

A.J.’s Liquor Store testified that seventy to eighty percent of the

liquor it sells comes from out of state; its customers include

people travelling out of Texas. He testified that some of the

$12,000 taken in the A.J.’s robbery would have been used to buy

food and inventory from out of state.

10
 None of these witnesses testified that the robberies

caused them to forego, reduce, or delay specific purchases from out

of state.

II. Procedural Background

On April 18, 1996, a grand jury in the Eastern District

of Texas returned a two-count indictment against Hebert for bank

robbery,5 and use of a firearm during the course of a violent

crime,6 based on the Bank of America robbery.

On May 16, 1996, the grand jury returned a superseding

twenty-four count indictment, adding three counts of bank robbery,

eleven counts of use of a firearm during the course of a violent

crime, and eight counts of interference with commerce by committing

robbery in violation of the Hobbs Act.

The jury convicted Hebert of twenty-two of the twenty-

four counts in the superseding indictment. The jury found Hebert

not guilty of the count alleging use of a firearm and the Hobbs Act

count relating to the robbery of the Lucky Liquor Store. Hebert

received a sentence of 60 months for the use of a firearm count

relating to the first Popeye’s robbery, 121 months each for the

bank robbery and Hobbs Act counts, to run concurrently, and 240

months for each of the subsequent ten convictions for use of a

firearm, each to run consecutively. Hebert was sentenced to a

total of 2581 months of imprisonment, or approximately 215 years.

Hebert was also ordered to pay $36,475 in restitution.

5
18 U.S.C. § 2113.
6
18 U.S.C. § 924(c).

11
 This timely appeal followed.

III. Discussion

A. The Challenge to the Hobbs Act

Hebert argues that the district court erred in denying

his motion to dismiss the indictment based on the facial

unconstitutionality of the Hobbs Act. Hebert moved to dismiss the

indictment on the ground that United States v. Lopez requires a

“substantial effect” on interstate commerce for federal regulation.

115 S. Ct. at 1629-30. Hebert argues that the Hobbs Act conflicts

with Lopez in permitting conviction for acts that, by themselves,

have no more than a minimal effect on interstate commerce.

During this appeal, this court rejected the same

argument. In United States v. Robinson, 119 F.3d 1205 (5th Cir.

1997), this court held:

[U]nder the third category of the commerce
power described in Lopez, the particular
conduct at issue in any given case need not
have a substantial effect upon interstate
commerce. . . . so long as the regulated
activity, in the aggregate, could reasonably
be thought to substantially affect interstate
commerce. . . . [T]he cumulative result of
many Hobbs Act violations is a substantial
effect upon interstate commerce.

Id. at 1215. Since Robinson, this court reached the same result in

United States v. Miles, 122 F.3d 235, 241 (5th Cir. 1997). These

precedents preclude Hebert’s challenge.

B. The Challenge to the Jury Instructions

Hebert argues that the district erred in: (1) refusing

his instruction that a violation of the Hobbs Act occurs if a

robbery had a “substantial,” rather than “minimal,” effect on

12
interstate commerce; (2) instructing the jury that a “potential”

effect on interstate commerce was a sufficient basis for a Hobbs

Act violation; (3) removing an element of a Hobbs Act violation

from the jury’s consideration, contrary to United States v. Gaudin,

115 S. Ct. 2310 (1995); and (4) failing to instruct the jury that

Hebert must have “knowingly” committed a robbery.

A district court’s refusal to submit a proposed jury

instruction is reviewed for abuse of discretion. United States v.

Greig, 967 F.2d 1018, 1027 (5th Cir. 1992). “A trial court’s

refusal to give a requested instruction constitutes reversible

error when (1) the requested instruction is substantially correct,

(2) the actual charge given to the jury did not substantially cover

the content of the proposed instruction, and (3) the omission of

the instruction would seriously impair a defendant’s ability to

present a given defense.” United States v. Daniel, 957 F.2d 162,

170 (5th Cir. 1992). We review an included jury instruction

objected to as inaccurate for abuse of discretion and will reverse

only if the instruction fails correctly to state the law. United

States v. Gray, 96 F.3d 769, 775 (5th Cir. 1996), cert. denied, 117

S. Ct. 1275 (1997).

Hebert’s first argument is foreclosed by this court’s

decision in Robinson. Hebert’s second argument is foreclosed by

the charge itself.

The district court instructed the jury in relevant part

as follows:

For you to find the defendant guilty of [a
Hobbs Act violation] . . . you must be

13
 convinced that the government has proved each
of the following beyond a reasonable doubt:

. . . .

That the robberies obstructed, delayed or
affected commerce. The effect on commerce
need only be minimal. Both direct and
indirect effects on interstate commerce may
violate Section 1951. The government must
prove that the defendant knew that his conduct
would obstruct, delay, or affect commerce. In
this case, the government argues that the
entities cited in [the Hobbs Act counts]
actively engaged in interstate commerce, and
their assets were depleted by defendant’s acts
of robbery, thereby curtailing their potential
as purchasers of goods in the stream of
interstate commerce. If you find that the
government had proved this beyond a reasonable
doubt, then the necessary effect on interstate
commerce has been shown.

The district court did not instruct the jury that a “potential”

effect on interstate commerce was sufficient to find a Hobbs Act

violation. The district court’s instruction stated that Hebert’s

alleged robberies must have curtailed the victims’ “potential as

purchasers of goods in the stream of interstate commerce.”

(emphasis added). This instruction is consistent with this court’s

holdings in Miles and Robinson, defining a de minimis effect on

interstate commerce as a depletion of the assets of a business that

purchases out-of-state goods and supplies. Miles, 122 F.3d at 236-

37, 241; Robinson, 119 F.3d at 1212.

Hebert’s third argument is that the charge violated the

holding of United States v. Gaudin, 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.” 115

S. Ct. at 2314. Hebert’s Gaudin argument is that, by equating a

14
reduction in a store’s ability to purchase out-of-state goods with

an effect on commerce, the district court improperly reserved for

itself the question of whether the alleged robberies affected

interstate commerce. This argument is foreclosed by this court’s

en banc decision in United States v. Parker, 104 F.3d 72 (5th Cir.)

(en banc), cert. denied, 117 S. Ct. 1720 (1997), approving a

substantially similar charge in a Hobbs Act case, against a similar

challenge. Id. at 73; see also Miles, 122 F.3d at 239-40 (citing

Parker in upholding a similar charge against a Gaudin challenge).7

Hebert’s fourth argument, that the district court failed

to instruct the jury that Hebert must have “knowingly” committed a

7
The jury instruction approved in Parker stated, in pertinent part:

If you believe beyond a reasonable doubt the
government’s evidence regarding the handling of cash
proceeds from the Payless Shoe Store referred to in
Count 1 of the indictment, that is, that monies obtained
from the operations of such store were routinely wired
or electronically transferred from the State of Texas
for deposit in a bank in another state, then you are
instructed that the interstate commerce element . . .
has been satisfied.

United States v. Parker, 73 F.3d 48, 50 (5th Cir. 1996), aff’d in part and rev’d
in part, 104 F.3d 72 (5th Cir.) (en banc), cert. denied, 117 S. Ct. 1720 (1997).
The instruction approved in Miles read:
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.
Miles, 122 F.3d at 239.

In the Parker and Miles instructions, as here, the district courts
equated the loss of money that is routinely transferred out of state with an
effect on interstate commerce.

15
robbery, is foreclosed by the charge itself. In the charge, the

court instructed the jury that the third element of a Hobbs Act

violation is that “[t]he defendant knew the entities described in

[the Hobbs Act counts] parted with the property because of

robbery.”8 Hebert did not object to this portion of the jury

charge at trial; we therefore review the instruction for plain

error. United States v. Willis, 38 F.3d 170, 179 (5th Cir. 1994).

Under the plain error standard, this court “may only

reverse appellant[’s] convictions if (1) there was an error, (2)

the error was clear and obvious, and (3) the error affected a

defendant’s substantial rights.” United States v. Jobe, 101 F.3d

1046, 1062 (5th Cir. 1996). The instruction states that the

defendant must have known that he was committing a robbery; no

“clear and obvious” error occurred.

C. The Challenge to the Sufficiency of the Evidence to
Sustain the Hobbs Act Convictions

“[A]n attack on the sufficiency of the evidence to

sustain a criminal conviction is judged from the standpoint of

whether, after viewing all evidence presented and all inferences

that may reasonably be drawn from the evidence in the light most

favorable to the prosecution, any reasonable jury could have found

that the defendant was guilty beyond a reasonable doubt.” United

8
The charge defined “robbery” as

the unlawful taking or obtaining of personal property
from the person or in the presence of another, against
his or her will, by means of actual or threatened force,
or violence, or fear of injury, immediate or future, to
his or her person or property, or property in his or her
custody or possession.

16
States v. Harris, 104 F.3d 1465, 1470 (5th Cir.) (citations

omitted), cert. denied, 118 S. Ct. 103 (1997); see also Jackson v.

Virginia, 99 S. Ct. 2781, 2789 (1979).

Hebert’s first insufficiency argument is based on the

district court’s instruction as to one of the elements of a Hobbs

Act violation. The district court instructed the jury that to

prove a Hobbs Act violation, “[t]he government must prove that the

defendant knew that his conduct would obstruct, delay, or affect

commerce.” Hebert asserts that no evidence presented at trial

showed that he “knew” his alleged acts would affect interstate

commerce.

It is well settled that the word “knowingly,” as used in

18 U.S.C. § 1951(a), does not modify the term “affect interstate

commerce.” See, e.g., United States v. Castleberry, 116 F.3d 1384,

1389 (11th Cir.), cert. denied, 1997 WL 611777 (U.S. Oct. 20,

1997); United States v. Arambasich, 597 F.2d 609, 611 (7th Cir.

1979); United States v. Spagnolo, 546 F.2d 1117, 1119 n.5 (4th Cir.

1976); United States v. Nakaladski, 481 F.2d 289, 299 (5th Cir.

1973). By including such an instruction, the charge in this case

effectively imposed a higher burden of proof on the government than

is necessary under the statute. A jury instruction that unduly

favors the defendant cannot be basis of an insufficiency claim.

See Gladden v. Roach, 864 F.2d 1196, 1200 (5th Cir. 1989); United

States v. Thomas, 567 F.2d 638, 641 (5th Cir. 1978); United States

v. Rosa, 17 F.3d 1531, 1546 (2d Cir. 1994); cf. Harris, 104 F.3d at

1473 n.9 (finding no error in a district court’s instruction on the

17
affirmative defense of duress when the instruction omitted one of

the elements of the defense, and therefore “if anything, the

instruction favored the [defendant]”).

Hebert’s second insufficiency argument is that the

government presented insufficient evidence to prove beyond a

reasonable doubt that Hebert’s robberies of the restaurants and

liquor stores had a substantial effect on interstate commerce.

Hebert relies on the argument that the Hobbs Act must be

interpreted to require a substantial, rather than de minimis,

effect on commerce. This argument is foreclosed by Robinson and

subsequent cases.

In his brief, Hebert did not explicitly argue that the

evidence at trial was insufficient to prove even a de minimis

effect on interstate commerce. Recent Fifth Circuit cases have

made it clear that evidence similar in both quality and quantity to

that introduced against Hebert is sufficient to support Hobbs Act

convictions. In Robinson, the government showed the required

effect on commerce under the Hobbs Act by presenting evidence that

the stores lost thousands of dollars in the robberies and that

those robberies impaired the stores’ ability to cash out-of-state

checks and to re-stock goods from other states. Robinson, 119 F.3d

at 1215. The Fifth Circuit affirmed this evidence as sufficient

under the “aggregation principal”: the disruptions to interstate

commerce caused by the robberies, “if repeated at retail stores

across the nation, would amount to a substantial effect upon

interstate commerce.” Id.

18
 In Miles, the court upheld Hobbs Act convictions on

evidence strikingly similar to that presented here. The evidence

in Miles was that the restaurants and stores lost money in the

robberies; the businesses routinely purchased supplies and goods

from out of state; and the money taken in the robbery would have

been used, at least in part, for such purchases. See Miles, 122

F.3d at 236-37, 241. The evidence did not show that the robberies

caused the businesses to forego, reduce, or delay their purchases

from out of state.9

The evidence as to the effect of Hebert’s robberies of

the restaurants and liquor stores is very similar. The government

elicited testimony from managers or owners of each of the robbed

establishments that each robbery depleted cash assets of the store

or restaurant, and it was the regular course of business of that

store or restaurant to buy products from out of state. Under

binding Fifth Circuit precedent, such evidence is sufficient for

the jury to conclude that each of the restaurant and liquor store

9
Under the “depletion of assets” theory, see, e.g., Robinson, 119 F.3d
at 1212; United States v. Collins, 40 F.3d 95, 99 (5th Cir. 1994), cert. denied,
115 S. Ct. 1986 (1995), the government need not “‘show that any particular
shipment of merchandise’” was obstructed or delayed by the robbery, United States
v. Zeigler, 19 F.3d 486, 493 (10th Cir. 1994) (quoting Esperti v. United States,
406 F.2d 148, 150 (5th Cir. 1969)), or that the business “actually purchased
fewer goods because of the [robbery].” Id. Rather, a showing that the business
regularly buys goods from out of state allows an inference that the robbery will
impair a future purchase. See id. at 490-92; United States v. Blakey, 607 F.2d
779, 784 (7th Cir. 1979) (“‘[C]ommerce is affected when an enterprise, which
either is actively engaged in interstate commerce or customarily purchases items
in interstate commerce, has its assets depleted through [robbery], thereby
curtailing the victim's potential as a purchaser of such goods.’” (quoting United
States v. Elders, 569 F.2d 1020, 1025 (7th Cir. 1978))), overruled on other
grounds by United States v. Harty, 930 F.2d 1257, 1263 (7th Cir. 1991).

19
robberies for which Hebert was convicted had the necessary impact

on interstate commerce.10

Hebert’s third insufficiency argument is that the

government presented insufficient evidence to prove beyond a

reasonable doubt that Hebert committed the robberies of the banks

or the stores, or that he used a firearm in relation to any of

these robberies. The record clearly forecloses this argument.

Viewing the considerable evidence in the record in the light most

favorable to the government, we cannot say that no rational jury

could have found Hebert guilty of any of the counts of conviction.

D. The Challenge Under the Fourth Amendment

Hebert argues that his warrantless arrest at Alford's

supermarket was without probable cause. This court reviews de novo

the "ultimate determination of Fourth Amendment reasonableness.”

10
The evidence as to the amount each of the businesses lost in this
case is similar to the evidence of amounts lost in the robberies analyzed in two
other Hobbs Act cases in which convictions were upheld: the Fifth Circuit's
decision in Miles with the Tenth Circuit's decision in Zeigler.

Hebert Miles Zeigler
Hardee’s McDonald’s Lucky Stop
$117 $1500 $800
Popeye’s (2) McDonald’s Vickers gas
$500 total $3000 $650
Picadilly’s Colter’s Apco Hudson
$600 $1300 $160
A.J.’s Liquor Taco Bueno Mazzio’s Pizza
$12,000 $1200 $300
Debb’s Liquor Keith’s Food
$3500 $350-$500
Mr. Gatti’s Rex’s Chicken
$900 $1500

Miles, 122 F.3d at 236-37; Zeigler, 19 F.3d at 488.

20
United States v. Sinisterra, 77 F.3d 101, 104 (5th Cir.) (quoting

United States v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993)), cert.

denied, 117 S. Ct. 82 (1996).

Probable cause for a warrantless arrest exists when the

totality of facts and circumstances within an officer's knowledge

at the moment of arrest are sufficient for a reasonable person to

conclude that the suspect had committed an offense. United States

v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995), cert. denied, 117 S.

Ct. 240 (1996). Hebert argues that the police had no probable

cause to arrest him when he walked out of the grocery store. After

holding a hearing on Hebert's motion to suppress, the district

court found, in pertinent part, the following facts supporting

probable cause to arrest Hebert:

First, [officer Holmes] knew that the robbery
suspect had been exposed to red dye and that a
red substance was on Hebert’s hands. Second,
he saw that Hebert, like the robbery suspect,
was wearing black and white sneakers. Third,
Hebert identified himself to them as the owner
of the automobile matching general description
of the robbery suspect’s vehicle. Fourth, he
had seen a red paint-like substance on
portions of the car’s interior. Fifth, Hebert
had failed to respond forthrightly to some of
his questions. Finally, the presence of an
inflated tire behind the driver’s seat of the
car contradicted Hebert’s claim the vehicle
had a flat tire.

The testimony at trial supported these findings. The

totality of facts and circumstances shows that the officers

reasonably believed that Hebert had committed an offense. This

court finds no error.

21
 E. The Challenge to the Sentence

The district court imposed the sentences for the second

and subsequent convictions for use of a firearm in relation to a

crime of violence under 18 U.S.C. § 924(c)(1)11 consecutively to the

sentences imposed for the other counts. At sentencing, Hebert

argued that this was an incorrect interpretation of 18

U.S.C. § 924(c)(1). The district court overruled Hebert's

objection. Hebert was convicted of eleven counts of violation of

section 924(c)(1); he received five years' imprisonment for the

first conviction, and twenty years' imprisonment for each of the

remaining ten convictions, to be served consecutively. The

district court's interpretation of a federal statute is a question

of law that we review de novo. United States v. Mathena, 23 F.3d

87, 89 (5th Cir. 1994).

Hebert admits that second or subsequent sentences under

section 924(c)(1) are to be served consecutively to any other

sentence imposed. However, Hebert contends that the imposition of

these subsequent consecutive sentences in his case is excessive

because the enhancement results in an overall sentence of 215

years, despite the fact that Hebert is not a repeat offender, has

11
In pertinent part, section 924(c)(1) states:
Whoever, during and in relation to any crime of violence
. . . uses or carries a firearm, shall, in addition to
the punishment provided for such crime of violence . .
., be sentenced to imprisonment for five years . . . .
In the case of his second or subsequent conviction under
this subsection, such person shall be sentenced to
imprisonment for twenty years . . . . [N]or shall the
term of imprisonment imposed under this subsection run
concurrently with any other term of imprisonment.
18 U.S.C. § 924(c)(1).

22
never injured anyone, never discharged his firearm, and stole only

$36,000. Hebert argues that the word “conviction” in section

924(c)(1) is ambiguous and under the rule of lenity should be read

to mean a “final judgment,” so that consecutive sentences for

second or subsequent convictions can be imposed only when a

defendant’s first section 924(c)(1) conviction becomes final.

Hebert cites the dissent in Deal v. United States12 to support of

his reading of the statute.

The majority opinion in Deal does not help Hebert’s

argument. Deal held that the word “conviction” in section

924(c)(1) unambiguously “refers to the finding of guilt by a judge

or jury that necessarily precedes the entry of a final judgment of

conviction.” Deal v. United States, 113 S. Ct. 1993, 1996 (1993).

The majority did not accept the defendant’s argument that such an

interpretation would be unjust. See id. at 1999; see also United

States v. Miles, 10 F.3d 1135, 1141 n.7 (5th Cir. 1993). The

district court did not err in imposing consecutive sentences for

the convictions under 18 U.S.C. § 924(c)(1).

IV. Conclusion

The judgment of conviction and the sentence are affirmed.

ENDRECORD

12
113 S. Ct. 1993, 1999-2004 (1993) (Stevens, J., dissenting).

23
DeMOSS, Circuit Judge, dissenting in part:

Hebert was sentenced to 2,581 months (215 years) in federal

prison. Two-thirds of that term is attributable to Hebert’s

conviction under the seven counts of violation of the Hobbs Act, 18

U.S.C. § 1951(a), and the companion counts for use of a firearm

under 18 U.S.C. § 924(c). Because I continue to believe that the

Hobbs Act is being unconstitutionally applied by the federal

government in cases like this one where cash is robbed from local

retail merchants, my conscience requires that I write now again to

set forth the reasons particular to this case for my continuing

dissent.13

I.

First of all, I have to register my fundamental disagreement

with the strategy adopted by the Department of Justice and the

federal prosecutors which has produced this conviction. Following

passage of the Hobbs Act in 1945, there is no published opinion

from the Supreme Court or any United States Circuit Court for

twenty-three years which addresses the circumstance of interference

with commerce by robbery under the Hobbs Act. This period of utter

13
This dissent is limited to Hebert’s convictions under the Hobbs Act counts
and the companion use of a gun counts. I concur as to his convictions under the
bank robbery statutes and the use of a gun counts companion to the bank robbery
counts.
silence as to the applicability of the Hobbs Act to any type of

robbery certainly undercuts any argument that Congress intended to

reach the type of robberies involved in this case. The first case

to reach the Courts of Appeal using the Hobbs Act as a basis for

prosecution of a robbery was United States v. Caci, 401 F.2d 664

(2d Cir. 1968) (prosecution for conspiracy to commit robbery of

hotel guest and armored car messenger), vacated, Giordano v. United

States, 394 U.S. 310 (1969). The first case in the Fifth Circuit

to use the Hobbs Act as the basis for a robbery prosecution was

United States v. Pearson, 508 F.2d 595 (5th Cir.) (prosecution of

a conspiracy to rob the safety deposit boxes of a hotel in which

valuables of interstate travelers had been deposited), cert.

denied, 423 U.S. 845 (1975). Thereafter, another nineteen years

elapsed until United States v. Martinez, 28 F.3d 444 (5th Cir.),

cert. denied, 513 U.S. 910 (1994), started a run of cases, all

originating in the Northern District of Texas, in which armed

robberies of local retail stores were prosecuted under the Hobbs

Act and § 924(c). These later cases are: United States v. Davis,

30 F.3d 613 (5th Cir. 1994), cert. denied, 513 U.S. 1098 (1995);

United States v. Collins, 40 F.3d 95 (5th Cir. 1994), cert. denied,

514 U.S. 1121 (1995); United States v. Gipson, 46 F.3d 472 (5th

Cir. 1995); United States v. Laury, 49 F.3d 145 (5th Cir.), cert.

denied, 116 S. Ct. 162 (1995); United States v. Parker, 62 F.3d 714

(5th Cir. 1995), opinion withdrawn and superseded on rehearing, 73

F.3d 48 (5th Cir.), rehearing en banc granted, 80 F.3d 1042 (5th

Cir. 1996), opinion reinstated in part, 104 F.3d 72 (5th Cir.),

25
cert. denied, 117 S. Ct. 1720 (1997); United States v. Robinson,

119 F.3d 1205 (5th Cir. 1997); and United States v. Miles, 122 F.3d

235 (5th Cir. 1997). Martinez, Davis, Collins, Gipson, and Laury

were all decided prior to the Supreme Court’s decision in United

States v. Lopez, 514 U.S. 549 (1995). The defendants in these

cases have been hit with humongous sentences as a result of

converting what has traditionally and legally been recognized as

garden variety robberies under state law into violations of the

Hobbs Act in order to bring to bear the draconian impacts on

sentencing required by 18 U.S.C. § 924(c).14 If the Hobbs Act can

14
Martinez was convicted of five Hobbs Act counts and five companion use of
a firearm counts. The opinion does not disclose his total sentence nor the
amounts taken from each local retail store involved; but under § 924(c) he would
have been sentenced to 1,020 months (85 years) on the firearm counts alone. See
Martinez, 28 F.3d at 445.

Davis was convicted of four Hobbs Act counts and two companion use of
firearm counts. The opinion does not disclose the amounts taken in each retail
store involved but he was sentenced to a total of 457 months (38 years) on all
counts. See Davis, 30 F.3d at 615.
Collins was convicted of two Hobbs Act counts and two companion use of
firearm counts. The opinion does not disclose the amounts taken in each robbery
but he was sentenced to a total of 550 months (46 years) on all counts. See
Collins, 40 F.3d at 98. On appeal, his conviction on one robbery count and its
companion firearm count was reversed requiring resentencing.
Gipson was convicted of a conspiracy count, three Hobbs Act counts and
three companion firearm counts. The opinion does not disclose the amounts taken
in each robbery but he was sentenced to a total of 750 months (62 years) on all
counts. See Gipson, 46 F.3d at 473-74.
Laury was convicted on five Hobbs Act counts and five companion use of
firearm counts. The opinion does not disclose the amounts taken in each robbery
but Laury was sentenced to a total of 1,071 months (89 years) on all counts. See
Laury, 49 F.3d at 148.

Parker was convicted of six Hobbs Act counts and two use of firearm counts
and was sentenced to 430 months (36 years). His total take in the six robberies
was less than $500. See Parker, 104 F.3d at 73 (DeMoss, J., dissenting).
Miles was convicted of four Hobbs Act counts and four use of a firearm
counts and was sentenced to 859 months (71 years). The total take in the four
robberies was $7,000. See Miles, 122 F.3d at 236-39.
Gustus was convicted of the same counts as Miles plus an additional Hobbs

26
be applied to all armed robberies which would otherwise have been

prosecuted under state law, then the mandatory sentencing

requirements of § 924(c) provide prosecutors with the opportunity

to put the perpetrators of several of such robberies away for what

amounts to life, as has occurred here in Hebert’s case, even though

the perpetrator had not previously been convicted of any crime, no

shots were fired, and no victims sustained any physical injuries,

and the sums of money taken in such robberies were less than

$1,000. But if all armed robberies in the United States are to be

prosecutable under the Hobbs Act there is a whole series of policy

questions which in my view must be addressed by the Congress, as

the legislative branch of our government, and not by the

imaginative prosecutive theories of the executive branch nor by the

lackadaisical decision making of the judicial branch. I have not

been able to find anything in the U.S. Criminal Code which

persuades me that the U.S. Congress has decided to make every armed

robbery that occurs in the United States a federal offense and to

appropriate the funds required to investigate, prosecute, determine

guilt or innocence, sentence and incarcerate the greatly expanded

Act count and a use of gun count and was sentenced to 1,140 months (95 years).
See id. at 236-39.

Robinson was convicted of three Hobbs Act counts and one use of a firearm
count and was sentenced to 270 months (23 years). The total take in the three
robberies was approximately $70,000. See Robinson, 119 F.3d 1209-09.
Hebert was convicted of seven Hobbs Act counts and seven companion use of
firearm counts. His sentence attributable to these counts was 1,621 months and
out of his total sentence of 2,581 months. His total take in the seven robberies
was approximately $17,600 with four of the robberies involving takes of less than
$1,000.

27
numbers of federal criminal defendants which would result from that

policy decision.

II.

The text of the Hobbs Act, as it now exists, reads as follows:

(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
extortion or attempts or conspires so to do, or
commits or threatens physical violence to any
person or property in furtherance of a plan or
purpose to do anything in violation of this section
shall be fined under this title or imprisoned not
more than twenty years, or both.

The government prosecuted this case and the trial judge

charged the jury on the theory that the Hobbs Act may be construed

as if that statute read as follows:

Whoever unlawfully takes or obtains by force or
violence or by intimidation any personal property
or thing of value from the person or presence of
another (the "victim") when (i) such victim has at
any time in the past bought anything of value from
a seller in another state and (ii) such taking
would deplete the assets of the victim so as to
curtail in any way or degree the potential of such
victim to make other purchases in the future from
sellers in other states, shall be fined under this
title or imprisoned not more than 20 years or both.

It is plainly obvious that the text of the Hobbs Act as it now

exists in the U.S. Criminal Code does not say what the government

claims it says. I have previously explained at considerable length

why I believe nothing in the legislative history of the Hobbs Act,

as it was passed 53 years ago, supports the expansive reading which

the government contends applies in this case. Indeed, the

legislative history demonstrates that the Act was passed to address

28
a very particular problem. Members of labor unions were hijacking

produce trucks carrying produce into union states for the purpose

of requiring that the non-union driver either pay a "tribute" in

the form of a union wage or allow a union driver to transport the

produce into the union dominated state. Thus, the Hobbs Act was

passed to deal with robbery or extortion directed at goods moving

in commerce. The legislative history simply does not support the

government’s proposition that the Hobbs Act extends to prohibit

purely local robberies. Likewise, I have written extensively as to

why this expansive reading of the Hobbs Act is in clear and

fundamental conflict with the teaching of the Supreme Court in its

landmark decision United States v. Lopez, 514 U.S. 549 (1995). See

Miles, 122 F.3d at 241-51 (5th Cir. 1997) (DeMoss, J., specially

concurring). I will not repeat all of those thoughts and comments

here; but I think some points justify restatement because of their

relevance to the issues raised in this case.

First, the Supreme Court has never held that the theory of "de

minimis impact on interstate commerce" was sufficient to support

the application of the Hobbs Act as asserted in this case.

Secondly, the Supreme Court has never held that the "depletion of

assets theory" asserted by the government in this case was a proper

way to measure an effect on interstate commerce. I recognize, of

course, that these theories have been accepted as legitimate

readings of the Hobbs Act by several of the Circuit Courts; but in

my view the rationale supporting these theories is so flimsy that

sooner or later the Supreme Court must grant a writ of certiorari

29
to apply its teachings in Lopez to this strained reading of the

Hobbs Act. In such event I predict that the Supreme Court will

deliver the same fatal blow to the prosecutive theories in this

case as it did in United States v. McNally, 483 U.S. 350 (1987)

(reversing prosecutive theory that mail fraud and wire fraud

statutes reach defrauding the citizens of a state of the intangible

right to good government by officials) and as it did in United

States v. Bailey, 116 S. Ct. 501 (1995) (reversing prosecutive

theory that the word "use" in 18 U.S.C. 924(c) meant the same thing

as "possession"). In both McNally and Bailey the Supreme Court

held that in construing criminal statutes we should apply the

common, ordinary meaning of the plain text of the statute as being

the conduct which Congress intended to prohibit and leave it to the

Congress to broaden and expand the language by amendment to the

statutory language.

III.

In testing the correctness of the government’s interpretation

of the Hobbs Act in this case, I used the following premises as

guidance:

1. The federal government does not have a general police

power and, therefore, Congress cannot make a federal crime out of

every robbery that occurs in the United States. See Lopez, 514

U.S. 549 (1995).

2. The sections of the U.S. Code which do make robbery a

federal offense have been codified in Chapter 103 of Title 18 and

define robbery as a federal offense in certain limited

30
circumstances specified in each of §§ 2111 through 2119 of that

chapter. The four bank robbery counts of the indictment against

Hebert in the present case are based on § 2113 which make it a

federal offense to rob a bank, savings and loan, or credit union if

those entities are insured by an agency of the federal government.

However, none of the other sections of Chapter 103 would make it a

federal offense to rob a retail merchant of cash in his cash

register.

3. The Hobbs Act, on the other hand, has been codified in

another chapter of Title 18 of the U.S. Code, i.e. Chapter 95,

entitled "Racketeering"; and § 1951, which contains the same

language as originally passed by the Hobbs Act, is entitled

"Interference With Commerce by Threats or Violence."

4. The gravamen of the offense made criminal by the Hobbs

Act (§ 1951(a)) is the obstructing, delaying, or affecting of

commerce and the verbs used in the text -- "obstructs, delays or

affects" -- are each in the present active tense.

5. Both the term "commerce" and the term "robbery" are

defined in the Hobbs Act and if we insert in subsection (a) of §

1951 the pertinent definitions, the text of subsection (a) would

read as follows:

Whoever in any way or degree obstructs, delays or
affects commerce [between any point in a state and
any point outside thereof] or the movement of any
article or commodity in commerce [between any point
in a state and any point outside thereof] by [the
unlawful taking or obtaining of personal property
from the person or in the presence of another,
against his will or by means of actual or
threatened force], shall be fined under this Title

31
 or imprisoned not more than 20 years or both.
(Portions in brackets inserted.)

6. It is apparent, therefore, (i) that grammatically and

logically the conduct defined as robbery in the Hobbs Act must be

the producing cause of a delay, obstruction or effect on commerce

between a point in one state and a point in another state and (ii)

that the delay, obstruction or effect produced must occur

contemporaneously with the conduct which constitutes robbery.

The government’s interpretation of how the Hobbs Act should be

read to support its application in this case makes several

fundamental changes in the plain language of the statute as passed

by Congress. First of all, the government’s interpretation changes

the gravamen of the offense from (i) "obstructing, delaying or

affecting" commerce between a point in one state and a point in

another state to (ii) the taking or obtaining of personal property

from the person or presence of another by means of actual or

threatened force. In order to find some constitutional basis for

this redefinition of the offense, the government’s interpretation

purports to insert a definition of who the victim of the robbery

conduct might be. It is important to note that in the text of the

Hobbs Act as actually passed by Congress there is no definition of

any kind as to the "person" from whose person or in whose presence

the personal property is taken. Furthermore, the definition

suggested by the government, i.e. a person who "has at any time in

the past bought anything of value from a seller in another state"

trivializes the connection with interstate commerce, which is the

only constitutional power which could possibly support this

32
statute, and is so open-ended that it would permit the federal

government to prosecute almost every robbery that occurs in the

United States just as if the United States had been granted a

general police power under the Constitution. Likewise, the

"depletion of assets" theory which the government suggests as a

rationale for establishing an effect on commerce trivializes the

cause and effect relationship between the robbery and interstate

commerce. That theory permits hypothetical, conjectural and

conclusionary testimony about future events and effects, just as

that offered in this case.

The depletion of assets theory is fraught with fallacies and

suppositions. According to the dictionary the word "deplete" means

"to decrease seriously or exhaust the abundance or supply of"

something. Webster’s College Dictionary 363 (1991). While it is

certainly possible that the cash in the cash register of a retail

merchant might constitute all of the assets of that merchant, that

circumstance is so unlikely as to not be a reasonable inference

absent specific proof of that circumstance. The assets of any

business entity will consist of raw materials, goods in process,

finished goods, manufacturing machinery, office equipment, display

equipment, inventories of merchandise, account receivable, trucks

and other rolling stock, bank accounts, and real property and

improvements thereon. Ordinarily, the value of all of these assets

will greatly exceed the amount of cash which the business keeps in

its cash register. Furthermore, it is customary for businesses to

carry insurance to protect all of its assets from loss -- by fire,

33
by windstorm, by burglary, by theft, or by robbery; and such

insurance eventually replaces the value of an asset (but for

deductibles) to the value that asset had before there was any loss.

Consequently, to determine whether the impact of a robbery on the

assets of a business were sufficient to actually constitute a

"depletion of those assets" there would have to be proof of what

the assets were before the robbery and what the assets were after

the robbery and proof as to what insurance coverage was applicable.

No such proof was offered by the government in this case and

consequently the jury and the trial court could only speculate as

to whether or not the robberies "depleted the assets" of the

victims.

Likewise, the conclusional testimony in this case that the

money taken in the robbery "would have been used" to purchase food

and other commodities from another state cannot withstand rational

analysis. Most businesses that make a lot of cash sales routinely

limit the amount of cash in the cash registers by periodically

transferring quantities of cash into safes located on the premises.

From these on-premises safes, which can be opened only by specially

authorized employees, the cash is regularly picked up and

transmitted to a local bank where it produces a credit to the

account of the retail merchant making the deposit and the cash

itself becomes the property of the bank. It is this credit in its

checking account that the retail merchant later draws on by check

which is sent in payment of the bill from the out-of-state seller

that ultimately produces payment for any out-of-state purchases.

34
There is only one circumstance when the cash in a cash register on

the merchant’s premises would be used to purchase goods from an

out-of-state seller and that is when the retail merchant has

ordered those goods to be delivered collect-on-delivery (COD). If

the robbery occurred just before that COD delivery was to be made

and the merchant then did not have the cash on hand to pay when the

goods were delivered, then such out-of-state delivery and sale

would have been "delayed, obstructed or affected" by the robbery.

There was no testimony or proof whatsoever in this case that any

such COD delivery was frustrated by the occurrence of the robbery.

In fact, the majority opinion recognizes that none of the witnesses

for the government "testified that the robberies caused them to

forego, reduce or delay specific purchases from out of state."

Ante at 11.

In reality, therefore, the government’s theories of "de

minimis effect on interstate commerce" resulting from "depletion of

assets" and "frustration of potential future sales" are nothing but

semantical camouflage intended to obscure the fact that the

robberies in this case did not "obstruct, delay or affect"

interstate commerce. For these reasons and for the additional

reasons set forth in my dissent in Miles, I would hold that the

Hobbs Act cannot be constitutionally applied to the robberies in

this case and the convictions and sentences on those counts should

be vacated and dismissed.

I respectfully dissent.

35