United States Court of Appeals
For the First Circuit
No. 03-1138
UNITED STATES OF AMERICA,
Appellee,
v.
HÉCTOR JIMÉNEZ-TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lipez, and Howard, Circuit Judges.
Marlene Aponte Cabrera for appellant.
Sonia I. Torres-Pabon, Assistant United States Attorney with
whom H.S. Garcia, United States Attorney, Nelson Pérez-Sosa,
United States Attorney, and German A. Rieckehoff, Assistant
United States Attorney, were on brief, for appellee.
January 11, 2006
HOWARD, Circuit Judge. Defendant Héctor Jiménez-Torres
was convicted of violating the Hobbs Act, 18 U.S.C. § 1951(a), and
using a firearm in the commission of a violent federal felony
(i.e., violating the Hobbs Act) that resulted in a death, 18 U.S.C.
§ 924(j)(1). The conviction stemmed from Jiménez's participation
in a home invasion, robbery, and murder of a gas station owner in
Puerto Rico. Jiménez appeals his convictions and sentence. We
affirm.
I.
We present the evidence in the light most favorable to
the verdicts. See United States v. Nguyen, 246 F.3d 52, 53 (1st
Cir. 2001).
Jiménez joined with a group of five other individuals to
rob a home in Juana Diaz, Puerto Rico. The leader of the group was
an individual known as "Petete," who selected the house to rob.
The owner of the house was Carlos Flores-Rodríguez, the sole
proprietor of a local Texaco gas station that was engaged in
interstate commerce. In the two months preceding the robbery,
Flores' gas station purchased approximately 40,000 gallons of
gasoline from the Hess Oil Refinery in the United States Virgin
Islands.
On the night before the robbery, Flores' employee, Alex
Lugo-Rodríguez, brought the gas station's daily receipts of
approximately $600 to Flores at his home. As was his custom,
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Flores placed the money in a kitchen cabinet with his ring and a
revolver.
During the early morning of July 9, 1997, Jiménez and his
co-conspirators traveled to Flores' home, carrying two guns. They
entered the house and gathered outside the upstairs room where
Flores and his wife were asleep. After a few minutes, two of the
conspirators brought Flores downstairs to the kitchen. Jiménez
remained upstairs.
While remaining upstairs with Flores' wife, Jiménez heard
a quick succession of gunshots. One of the conspirators had shot
Flores, and he eventually died of his wounds. The conspirators
fled but not before stealing the money that was located in the
kitchen cabinet. The next day, Flores' gas station closed
permanently.
After a five-day trial, the jury convicted Jiménez on the
Hobbs Act and use-of-a-firearm counts. He was sentenced to 240
months in prison on the Hobbs Act count and a concurrent life
sentence on the use-of-a-firearm count. As part of the statutorily
mandated supervised release period imposed, the district court
delegated to a probation officer the authority to decide the drug
testing and treatment that Jiménez should receive.
II.
Jiménez raises five arguments on appeal. First, there
was insufficient evidence that the robbery of Flores' home affected
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interstate commerce -- a prerequisite to conviction under the Hobbs
Act. Second, the jury's verdict was ambiguous on the use-of-the-
firearm-count and required more lenient interpretation than was
afforded by the district court. Third, the court abused its
discretion by limiting his cross-examination of a government
witness. Fourth, the court abused its discretion by interrupting
his closing argument. Finally, the court improperly delegated to
a probation officer the authority to establish the drug testing and
treatment conditions of his supervised release term.
A. Hobbs Act
The Hobbs Act makes certain robberies federal offenses.
See 18 U.S.C. § 1951(a). For the government to successfully prove
a violation of the Hobbs Act, it must demonstrate that the robbery
had an effect on interstate commerce. See id. Congress' intent in
enacting the Hobbs Act was "to use all [its] constitutional power
. . . to punish interference with interstate commerce by extortion,
robbery, or physical force." Stirone v. United States, 361 U.S.
212, 215 (1960). Given the statute's broad sweep, even a de
minimis effect will suffice to meet the commerce element.
See United States v. Capozzi, 347 F.3d 327, 335 (1st Cir. 2003).
Where, as in this case, the crime concerns the robbery of a home
rather than of a business, we approach the task of applying the de
minimis standard with some caution, lest every robbery (which by
definition has some economic component) become a federal crime.
-4-
See United States v. Rodriguez-Casiano, 425 F.3d 12, 13 (1st Cir.
2005).
The government offered two ways in which the robbery of
Flores' home affected interstate commerce. First, Flores' murder
led to the closing of the gas station, a business which had been
engaged in interstate commerce. Second, the robbery depleted the
assets available to the gas station to participate in interstate
commerce. Jimenéz asserts that the government did not present
sufficient evidence of either effect.1
We review challenges to the sufficiency of evidence de
novo, although we take the evidence in the light most favorable to
the verdict. See United States v. Hernandez, 146 F.3d 30, 32 (1st
Cir. 2000). Sufficient evidence may be comprised of direct or
circumstantial evidence, or any combination of the two. See United
States v. Patel, 370 F.3d 108, 111 (1st Cir. 2004). "The test is
whether the evidence, construed favorably to the government,
permitted rational jurors to conclude, beyond a reasonable doubt,
that [Jiménez] was guilty as charged." See United States v.
Sebaggala, 256 F.3d 59, 63 (1st Cir. 2001).
The government may demonstrate an effect on commerce by
proving that a robbery resulted in the closing of a business
1
If successful, Jiménez's argument would also require
reversal of the derivative firearm conviction because proof of the
Hobbs Act violation was an element of that offense. See United
States v. Wang, 222 F.3d 234, 240-41 (6th Cir. 2000).
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engaged in interstate commerce. See United States v. Vega Molina,
407 F.3d 511, 527 (1st Cir. 2005) (sustaining Hobbs Act conviction
where the evidence showed that the defendants' action caused a
business operating in interstate commerce to shut down
temporarily); United States v. Cruz-Rivera, 357 F.3d 10, 14 (1st
Cir. 2004) (doubting "that there is any serious claim of a
constitutionally insufficient interstate commerce connection where
a robbery directly results in the shutting down of an interstate
business"); see also United States v. Nguyen, 155 F.3d 1219, 1225
(10th Cir. 1998)(holding that effect on commerce in Hobbs Act
prosecution was established where, after robbery, business steadily
declined and eventually closed); United States v. Guerra, 164 F.3d
1356, 1361 (11th Cir. 1999) (similar); United States v. Jennings,
195 F.3d 795, 802 n.8 (5th Cir. 1999) (similar). This so even if
the robbery is of a business owner rather than the business itself.
United States v. Diaz, 248 F.3d 1065, 1088 (11th Cir. 2001).
To demonstrate this effect on commerce, the government
had to show that the gas station was engaged in interstate commerce
and that Flores' murder caused the station to close. See Vega-
Molina, 407 F.3d at 527. The evidence that the gas station
participated in interstate commerce was straightforward. The
Texaco general manager for the area in which Flores' gas station
operated testified that, in the two months preceding Flores'
murder, the station had purchased approximately 40,000 gallons of
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gasoline, all of which originated from a refinery located in the
United States Virgin Islands.2 This evidence was sufficient to
establish that the gas station engaged in interstate commerce. See
Capozzi, 347 F.3d at 337 (holding that evidence that car dealer
purchased cars from out of state established sufficient connection
to interstate commerce); United States v. Diaz, 248 F.3d 1065, 1091
(11th Cir. 2001) (holding that evidence that gas station purchased
gasoline from out of state established sufficient connection to
commerce).
To establish that Flores' murder was the cause of the gas
station's closing, the government offered the testimony of Flores'
employee, Alex Lugo-Rodríguez. Lugo testified that he worked at
the gas station the day before the murder and that, when he arrived
for work the next day, the gas station was closed and he learned
that "something had happened" to Flores. According to Lugo, the
gas station did not subsequently reopen.
While there was no direct testimony that Flores' murder
caused the gas station to close, Lugo's testimony provided strong
circumstantial evidence to that effect. The timing of the closing
-- the day after the murder -- coupled with its permanence, allowed
the jury to conclude that the murder caused the closing.3
2
The Hobbs Act defines "commerce" to include commerce among
United States territories. See 18 U.S.C. § 1951(b)(3).
3
At oral argument, Jiménez suggested that only the
consequences flowing from the robbery (and not the murder) could be
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The government also presented adequate evidence to prove
that the robbery depleted the gas station's assets. Depletion of
the assets of a business engaged in interstate commerce is a common
method for demonstrating that a robbery had an effect on interstate
commerce. See Rodriguez-Casiano, 425 F.3d at 13. This is so even
if the business's assets were stolen from a home. See id.
There was testimony that the stolen money consisted of
the gas station's daily receipts which, as was his custom, Flores
stored in his kitchen cabinet. From this testimony, the jury could
have reasonably determined that the robbery reduced the gas
station's revenue by $600, thereby depleting the assets that
station had available to participate in interstate commerce. See
Capozzi, 347 F.3d at 337 (government demonstrated a de minimis
effect on commerce where defendant deprived business of money,
thereby depleting the assets that could have been used to
participate in interstate commerce); Nguyen, 246 F.3d at 54 (money
stolen from a business engaged in interstate commerce establishes
jurisdictional element of Hobbs Act violation); see also United
States v. Devin, 918 F.2d 280, 293-94 (1st Cir. 1990) (Hobbs Act
considered in measuring the effect on commerce. According to
Jiménez, because the robbery itself did not result in the closing
of the gas station, there was no effect on commerce. We disagree.
Both the murder and the robbery violated the Hobbs Act, and each
may be considered in determining the effect on commerce. See Vega-
Molina, 407 F.3d at 527 (considering consequences of robbery and
related murder in determining the effect on commerce for purposes
of the Hobbs Act); Nguyen, 155 F.3d at 1225 (similar).
-8-
jurisdiction was established where money was stolen from the
personal funds of a business owner because the jury could infer
that the depletion of the owner's assets would ultimately deplete
the assets of the business). While the amount stolen was
relatively small, it was adequate to support a Hobbs Act
conviction. See United States v. Brennick, 405 U.S. 96, 100 (1st
Cir. 2005) (stating that theft of $522 from a large business
engaged in interstate commerce had sufficient effect on commerce to
support a Hobbs Act conviction).
Moreover, even if one of the government's effect on
commerce theories was inadequate to independently trigger the Hobbs
Act, the effects taken together suffice to establish federal
jurisdiction. The government proved that, as a result of Jiménez's
conduct, the assets of a business engaged in interstate commerce
were depleted and the business was forced to close permanently.
See Vega Molina, 407 F.3d 511 (1st Cir. 2005) (aggregating effects
on commerce to conclude that the government established Hobbs Act
violation). Jiménez may not have intended to cause these effects
but his intent is irrelevant to establishing the commerce element
of a Hobbs Act offense. See United States v. Moore, 363 F.3d 631,
638 (7th Cir. 2004), vacated on other grounds sub nom., 125 S.Ct.
1019 (2005); United States v. Shareef, 190 F.3d 71, 75-76 (2d Cir.
1999). In sum, whether the government's theories are considered
individually or in tandem, there was sufficient proof that the
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robbery affected interstate commerce.
B. Use of a Firearm
On the use-of-the-firearm count, the jury found Jiménez
guilty "as charged" in the indictment. Jiménez contends that this
general verdict was ambiguous as to whether the jury convicted him
of using a firearm in connection with a violent federal felony that
resulted in a death, 18 U.S.C. § 924(j)(1), or of the lesser-
included offense of using a firearm in connection with a violent
federal felony, see 18 U.S.C. § 924(c)(1)(A). He argues that the
district court erred by assuming that he was convicted of the more
serious charge. This argument was not raised below, and therefore
we review it for plain error. See Fed. R. Crim P. 52(b); United
States v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995). A defendant is
only eligible for relief under Rule 52(b) if he can identify a
clear error that affected his substantial rights and undermined
"the fundamental fairness or basic integrity of the proceeding
below in some major respect." Taylor, 54 F.3d at 973.
We look to the indictment and jury instructions to
interpret the verdict. See United States v. Cannon, 903 F.2d 849,
852-53 (1st Cir. 1990). The indictment charged that
[Jiménez and others] aided and abetted by each other
did knowingly, wrongfully and unlawfully use and
carry a firearm during and in relation to a crime of
violence which is a felony that may be prosecuted in
a court of the United States, that is, to affect
interstate commerce by robbery, in violation of 18
U.S.C. § 1951(a)(2) and in the course of the
violation to Title 18 U.S.C. § 924(c)(1)(A) the
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defendants caused the death of Carlos Flores-
Rodríguez, through the use of the firearm . . . .
All in violation of 18 U.S.C. § 924(j)(1).
The indictment unambiguously charged Jiménez with violating §
924(j)(1). It also, as a matter of law, charged him with the
lesser-included offense of using a firearm during a federal crime
of violence in violation 18 U.S.C. § 924(c)(1)(A). See United
States v. Motley, 940 F.2d 1079, 1082 (7th Cir. 1991) ("A lesser-
included offense is . . . by definition included in an indictment
charging a greater offense.").
While Jiménez's indictment included the lesser-included
offense, no lesser-included-offense instruction was given to the
jury. The court instructed that Jiménez was charged with "aiding
and abetting others in using a firearm during and in relation to a
crime of violence; specifically that crime of violence being to
affect interstate commerce by robbery and in the course of that
offense unlawfully causing the death of Carlos Flores-Rodríguez."
(Emphasis supplied). In light of this instruction specifically
referring to Flores' death, and the absence of a lesser-included
offense instruction, the court did not plainly err in interpreting
the jury's verdict as constituting a conviction under § 924(j)(1).
C. Limits on Cross-Examination
Jiménez next contends that his Sixth Amendment right to
confront witnesses was infringed by limits placed on his cross-
examination of a government witness. He concedes that our review
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is only for plain error.
Jiménez complains that he was not permitted to
effectively cross-examine the Texaco general manager who testified
concerning the interstate commerce engaged in by Flores' gas
station. On cross-examination, Jiménez attempted to ask about the
amount of intrastate business that the gas station conducted to
show that the station's "economic production was not . . .
significant [enough] to affect interstate commerce." But after
several questions, the district court ruled that the amount of
intrastate business performed by the gas station was not relevant
to whether the gas station participated in interstate commerce.
Under the Sixth Amendment, a defendant is entitled to
cross-examine a government witness. See United States v. Gonzalez-
Vazquez, 219 F.3d 37, 45 (1st Cir. 2000). But the court "retains
wide latitude to impose reasonable limits on cross-examination in
order to avoid confusion of the issues or extended discussion of
marginally relevant material." United States v. Mikutowicz, 365
F.3d 65, 72 (1st Cir. 2004).
There was no plain error in preventing Jiménez from
questioning at length about the amount of intrastate business
conducted by Flores' gas station. The evidence firmly established
that the station made substantial out-of-state purchases of
gasoline. Testimony about the station's intrastate business was
of, at best, marginal relevance, given the extent of its out-of-
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state business. See supra at 8. The court therefore reasonably
curtailed Jiménez's questioning on this issue. See United States
v. Callipari, 368 F.3d 22, 37 (1st Cir. 2004) (stating that the
district court properly limited cross-examination after "it
determined that further inquiry was repetitive or would lead the
jury astray").4
D. Closing Argument
During closing argument, Jiménez's counsel made the
following argument:
[T]he sufficiency of the evidence is another matter
that is important in this case because you have to
find sufficient evidence to convict the defendant.
. . . There is a lot of evidence that has not been
introduced with [respect to] Hector Jiménez-Torres.
There is a lot of evidence that has not been brought
before you that would have been very good for you to
see for example the machete. Where is the machete?
Did it have fingerprints? Did someone have it and
then place it elsewhere? Where [are the
coconspirators]? Not here. They could have taken
the stand and said yes [Jiménez] was there.
At the conclusion of this argument, the government interrupted and
said, "Your honor, counsel had the same opportunity to call these
witnesses. The court responded, "That is correct . . . [The]
4
Jiménez also challenges the district court's ruling
preventing him from asking the general manager to explain her
comment, made on direct examination, that the gas station had not
been open every day in the period preceding the murder. Jiménez
asked this question to highlight the limited business that the gas
station was conducting before the robbery. For the reasons
discussed above, it was also not plain error to prevent Jiménez
from pursuing this line of questioning.
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defendant has a right to request the court, if you cannot pay for
those witnesses to come, to subpoena them and bring them to court."
Jiménez contends that these statements suggested that he
should have called the absent witnesses and thereby impermissibly
shifted the burden of proof to him. He did not raise this issue
below, and we therefore review the claim for plain error.
This argument satisfies the first prong of the plain
error test as the comments were improper. Attorneys may not argue
that the jury should draw an inference against an opponent where
the opponent does not present witnesses that are available to both
parties. United States v. Johnson, 467 F.2d 804, 808 (1st Cir.
1972); see also United States v. Virgen-Moreno, 265 F.3d 276, 290
(5th Cir. 2001); United States v. Simpson, 974 F.2d 845, 848 (7th
Cir. 1992). We recently distinguished this situation from a case
where the defense highlights missing proof to argue that there was
insufficient evidence of the defendant's guilt. See United States
v. Diaz-Diaz, --F.3d--, 2005 WL 3536540, at *4 (1st Cir. Dec. 28,
2005). In Diaz-Diaz, we held that defense counsel's identification
of missing witnesses to argue evidentiary insufficiency was a
proper argument. Id. Therefore, the prosecutor's contention
before the jury that the defense could have called the absent
witnesses impermissibly suggested that the defendant had the burden
to present the missing evidence. Id.
This case is similar to Diaz-Diaz. Jiménez's counsel
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identified a series of witnesses that the government did not call
to argue that the government had not presented sufficient evidence
to warrant conviction. Like Diaz-Diaz, counsel's argument was not
aimed at having the jury draw a negative inference against the
government but rather to argue that the government failed to prove
its case. It was therefore incorrect for the government and the
court to state that Jiménez could have called the absent witnesses.
While Jiménez has established error, he has not
demonstrated that the error was clear or obvious. See United
States v. Patel, 370 F.3d 108, 118 (1st Cir. 2004). Diaz-Diaz
was decided after this case was argued on appeal and was thus
unavailable when the offending comments were made. Moreover, the
error here is not so obvious that the court should have necessarily
recognized it without an objection from Jiménez or the benefit of
Diaz-Diaz. Indeed, in Diaz-Diaz, we observed that determining
whether there is error by stating, in front of the jury, that the
defense could have called absent witnesses is a matter "of degree"
and that the prosecutor's comments in that case (which were similar
to the ones at issue here) were "technically improper [but]
approached the margin of propriety." 2005 WL 3536540, at *4.
Given the closeness of the issue, we cannot conclude that the error
was clear or obvious.
Furthermore, Jiménez has not demonstrated that the error
affected his substantial rights. See United States v. Padilla, 415
-15-
F.3d 211, 220 (1st Cir. 2005). Shortly after the erroneous
comments, the court instructed the jury that the burden of proof
remained with the government at all times and that the defendant
did not have any obligation to present evidence to prove his
innocence. In Diaz-Diaz, we held that instructions reminding the
jury that the burden of proof remained with government were
sufficient to dispel the prejudice from the prosecutor's improper
comment, even where the defendant preserved the issue for appellate
review. 2005 WL 35356540, at *4. Here, where the issue is
unpreserved and the court reminded the jury that Jiménez was not
required to produce evidence, the offending comments were not so
severe that the error affected Jiménez's substantial rights.
E. Supervised Release
The final issue concerns the conditions of Jiménez's
supervised release. The district court delegated to a probation
officer the power to determine the number of drug tests to be
performed and the type of drug treatment, if any, that Jiménez
should receive. Jiménez did not object to this condition.
Therefore our review is again for plain error. Citing a prior
panel decision of this court, United States v. Meléndez-Santana,
353 F.3d 93 (1st Cir. 2003), the government conceded plain error.
Since the government made its concession, however, our
law regarding unpreserved Meléndez-Santana errors has changed.
Sitting en banc, we have recently held that a defendant raising an
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unpreserved Meléndez-Santana error on appeal does not automatically
satisfy the plain-error standard. See United States v. Padilla,
415 F.3d 211, 220-23 (1st Cir. 2005) (en banc). In appeals briefed
before but decided after Padilla, we have not accepted the
government's concession of plain error for a Meléndez-Santana
claim. See United States v. Sánchez-Berríos, 424 F.3d 65, 81 (1st
Cir. 2005). Instead, we consider Jiménez's plain error argument
independently. See id.
For the reasons stated in Padilla, 415 F.3d at 220-23,
Jiménez has not established either the third or fourth prongs of
the plain-error standard. He has not demonstrated that there is a
reasonable probability that he would receive more favorable
supervised release conditions if resentenced, or that the
delegation error was of such consequence that it undermines public
faith in the judicial process. See id.; Sánchez-Berríos, 424 F.3d
at 82.
III.
For the reasons stated, we affirm Jiménez's conviction
and sentence.
Concurring opinion follows.
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TORRUELLA, Circuit Judge (Concurring). I write
separately, because although both the majority and I are required
to affirm Jiménez's conviction by reason of binding circuit
precedent,5 I believe that this precedent is based on an
interpretation of the Hobbs Act, 18 U.S.C. § 1951(a), that extends
Congress' power to regulate interstate commerce beyond what is
authorized by the Constitution.6
The unvarnished facts in this case are as follows:
Jiménez and five other cohorts were "look[ing] for houses to rob."
See Government's Brief at 6 (emphasis added). The group's leader
randomly chose a house, which they then proceeded to break into.
Once inside, they found the owners of the house, husband and wife,
asleep in an upstairs bedroom. Thereafter, two of the burglars
forced the husband downstairs to the kitchen at gunpoint. Jiménez
remained upstairs with the wife. While there, he heard a series of
shots emanating from the downstairs area. One of the burglars had
shot and wounded the husband, from which wounds he subsequently
5
See United States v. Rodríguez-Casiano, 425 F.3d 12, 15 (1st
Cir. 2005) (finding the robbery of business proceeds from the home
of a business owner to be a sufficient nexus with interstate
commerce under the Hobbs Act); United States v. Nguyen, 246 F.3d
52, 54-55 (1st Cir. 2001) (same).
6
Although, as applied to the facts of this case, this
interpretation also extends the Hobbs Act beyond Congress'
intention, this issue was not raised on appeal. See United States
v. Miles, 122 F.3d 235, 243-45 (5th Cir. 1997) (DeMoss, J.,
specially concurring).
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died. Before they left, the burglars robbed the dying man of $600
he had stashed in a cabinet in his kitchen.
These facts spell out the criminal substance of this
case. However, in its zeal to make this unfortunate incident into
something it is not -- criminal activity implicating core federal
interests -- the government adds the following circumstances that
were revealed about the deceased husband, Carlos Flores-Rodríguez,
in the course of the investigation of this local crime and which
were presented as evidence in the case against Jiménez: (1) Flores-
Rodríguez was the sole proprietor of a local Texaco gas station;
(2) in the two months prior to the burglary, the gas station had
purchased approximately 40,000 gallons of gasoline from the Hess
Oil Refinery in the United States Virgin Islands; (3) on the night
before the burglary, an employee of the gas station brought
approximately $600 to Flores-Rodríguez at his home, which sum
constituted the daily receipts of the gas station, and which
Flores-Rodríguez placed inside his kitchen cabinet for safe
keeping; and (4) the day after Flores-Rodríguez's death, the gas
station closed permanently.
Upon this exiguous thread of irrelevant evidence, the
government casts a net that, if allowed to set without challenge,
would elbow out large chunks of traditional state criminal
jurisdiction and federalize such crimes. The issue does not relate
to an ideologically charged debate about whether or not federal is
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better than state action. See Sara Sun Beale, Too Many and Yet Too
Few: New Principles to Define the Proper Limits for Federal
Criminal Jurisdiction, 46 Hastings L.J. 979 (1995). The point in
question is about giving validity to the constitutional dogma that
establishes that, other than by constitutional exception, "the
suppression of violent crime and vindication of its victims" is a
power that "the Founders denied the National Government and reposed
in the States." United States v. Morrison, 529 U.S. 598, 618
(2000). Although Congress may, pursuant to both the Commerce
Clause and the Necessary and Proper Clause,7 enact statutes
creating a broad range of federal crimes, González v. Raich, 125 S.
Ct. 2195, 2216 (2005) (Scalia, J., concurring), there must be
appropriate facts establishing the federal jurisdictional
underpinnings required by the Constitution. United States v.
López, 514 U.S. 549, 567 (1995). Such conditions are not present
in this case.
The Hobbs Act states that "[w]hoever 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 to do so, or commits or threatens physical
violence to any person or property in furtherance of a plan or
7
U.S. Const. art. I, § 8 ("The Congress shall have power to . . .
regulate commerce with foreign nations, and among the several
states" and to "make all laws which shall be necessary and proper
for carrying into execution the foregoing powers.").
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purpose to do anything in violation of this section" has committed
a federal crime. 18 U.S.C. § 1951(a). Although Congress' intent
in enacting the Hobbs Act was undoubtably "to use all [its]
constitutional power . . . to punish interference with interstate
commerce by extortion, robbery, or physical force," Stirone v.
United States, 361 U.S. 212, 215 (1960), this statute must be read
in the context of what is allowed to be regulated by the Commerce
Clause. The Commerce Clause permits Congress to create federal
crimes for offenses "directed at the instrumentalities, channels or
goods involved in interstate commerce." Morrison, 529 U.S. at 618.
The facts of this case are far removed from these strictures, and
no amount of prosecutorial inventiveness or incantation can
convince me that interstate commerce is implicated in this case,
heinous as the actions of Jiménez and his cohorts may have been.
We are not faced here with the robbery of decedent's
local gas station, which would bring the government closer to the
interstate nexus it so vehemently seeks by reason of that business
purchasing goods in interstate commerce. Nor is this a case of
Jiménez waylaying the decedent on his way to the bank with the
proceeds of interstate sales. It is not even a case of the robbers
intercepting decedent and forcibly depriving him of the local gas
station's receipts while he was on the way home. Although all of
these scenarios would cause me to hesitate as to the impact of such
criminal activity on interstate commerce, certainly those examples
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would be closer to providing the required constitutional
jurisdictional nexus that is missing in the present case. Here,
all criminal activity took place in decedent's home, the stolen
funds had come to rest in decedent's kitchen, and there is no
evidence that Jiménez or his cohorts even knew of their existence
before decedent's home was fortuitously picked to be burglarized.
See United States v. Min Nan Wang, 222 F.3d 234, 240 (6th Cir.
2000) (finding that the Hobbs Act did not encompass the robbery of
business proceeds from the home of business owners even though the
robber once worked for the business). There was in fact no
connection between the perpetrators of the robbery and decedent's
business.
Under the government's theory of causation, if the
decedent had taken the money out of the kitchen hiding place, gone
to the supermarket, and been robbed of this money, shot, and killed
by a person holding up the supermarket, a Hobbs Act violation could
be charged since the original source of those funds was a business
in interstate commerce and his business was never able to reopen
after the depletion of those funds and the owner's death. What
about the hold up of a neighborhood ice cream truck selling
national brand products, in which the driver is killed resisting
the robber, as a result of which his estate must file for
bankruptcy? Would the government blink at calling that a Hobbs Act
violation? At the rate we are going, perhaps the day will come
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when the federal government will see fit to prosecute the robbery
of a child's roadside lemonade stand because the lemons came from
California, the sugar was refined in Philadelphia, and the paper
cups were manufactured in China.
I cannot agree that the federal government has the
constitutional power to prosecute Jiménez for a violation of the
Hobbs Act given the facts proven in this case. See Morrison, 529
U.S. 598; López, 514 U.S. 549. However, because precedent binds me
until such time as the Supreme Court puts an end to the fictions
that allow the apparently limitless aggrandizement of federal power
into areas reserved to the states by the Constitution, I have no
choice but to concur in the affirmance of Jiménez's conviction.
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