United States v. Rutherford

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

6-26-2007

USA v. Rutherford
Precedential or Non-Precedential: Non-Precedential

Docket
No. 06-1437

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Rutherford" (2007). 2007 Decisions. Paper 886.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/886

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________

No. 06-1437
__________

UNITED STATES OF AMERICA

v.

DANIEL RUTHERFORD,

Appellant.
__________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 05-cr-00126)
(District Judge: Honorable Legrome D. Davis)
__________

Argued April 24, 2007

Before: McKEE and AMBRO, Circuit Judges,
and ACKERMAN, Senior District Judge.*

(Filed: June 26, 2007)

MAUREEN KEARNEY ROWLEY
Chief Federal Defender
DAVID L. McCOLGIN
Assistant Federal Defender
Supervising Appellate Attorney
ROBERT EPSTEIN (argued)

*
Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.
Assistant Federal Defender
Suite 540 West – The Curtis Center
601 Walnut Street
Philadelphia, Pennsylvania 19106-2414
Attorneys for Appellant

PATRICK L. MEEHAN
United States Attorney
ROBERT A. ZAUZMER
Assistant United States Attorney
Chief of Appeals
ARLENE D. FISK (argued)
Special Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorneys for United States
__________

OPINION OF THE COURT
__________

ACKERMAN, Senior District Judge.

Defendant/Appellant Daniel Rutherford appeals his conviction under the Hobbs

Act, 18 U.S.C. § 1951. The Hobbs Act makes robbery a federal crime where the robbery

affects interstate commerce. Because the Government presented sufficient evidence for

a reasonable jury to conclude that Rutherford’s robberies affected interstate commerce,

we will affirm.

I.

On July 7, 2003 and again four days later on July 11, Defendant Daniel Rutherford

robbed the DePativo Chiropractor Center (“DCC”) at 6100 Spruce Street in Philadelphia.

DCC was operated by Drs. Carl and Anthony DiPativo, father and son. At the time of

2
the robberies, DCC had three offices: 6100 Spruce Street in Philadelphia (“Spruce Street

office”), another on North Broad Street in Philadelphia (“North Broad Street office”), and

one on West White Horse Pike in Berlin, New Jersey (“New Jersey office”). The Spruce

Street office was on the ground floor of a residential apartment building. The two

chiropractors worked at the offices along with various receptionists and nurses. Each

chiropractor often worked in more than one office per day. Among its services, DCC

provided its patients with cervical collars and pillows, back supports, rib braces, neck

braces, and cold packs. DCC purchased most of these items from Plymouth Bell

Laboratories in Pennsylvania, which in turn purchased the goods from manufacturers

around the country. DCC also obtained some medical items directly from out-of-state

providers. The supplies for both Philadelphia offices were shipped to the North Broad

Street office.

Rutherford’s first robbery of the Spruce Street office occurred at approximately

1:30 p.m. on July 7, while the office was open and treating patients. Rutherford entered

DCC and pretended to be a potential patient. After sending an elderly patient into a

treatment room, Dr. Carl DePativo spoke to Rutherford. Rutherford drew a handgun,

pointed it at the doctor, and demanded money. Rutherford then forced Dr. Carl DePativo

into a rear office, closed the door, and demanded a watch from the doctor’s desk. The

doctor gave Rutherford the cash from his pocket – approximately $390 – and the watch.

After ordering the doctor to stay in the room until he was gone, Rutherford left the office.

3
The doctor then informed the police.

The second robbery, on July 11, 2003, took place at approximately 4:00 p.m. at the

Spruce Street office. Rutherford was accompanied by Elijah Smith. Dr. Anthony

DePativo was on duty, along with receptionist/medical assistant Leida Perez. Rutherford

and Smith pretended to be potential patients. Smith asked for water, and Rutherford

asked if the doctor was available. Perez answered that he was, and Rutherford identified

himself to her as a new patient named Mike Westcott. When Perez turned away,

Rutherford walked into Dr. Anthony DePativo’s office, drew a gun on him, and

demanded money. Smith remained in the reception area, drew a gun on Perez, grabbed

her by the arm, and forced her into Dr. Anthony DePativo’s office. The two robbers

demanded money and drugs, but were told that there were no drugs in the office.

Rutherford searched the drawers in the office for drugs, but found none. Rutherford then

demanded the money from the doctor’s pockets. Rutherford and Smith stole $10 from

the doctor and $5 from Perez, as well as jewelry from both victims, the doctor’s credit

card, and Perez’s duffle bag, which contained her wallet, cell phone, and identification.

The total value of the stolen cash and items was approximately $900. The robbers

ordered the doctor and Perez to remain in the rear office while they fled, and before

leaving, the robbers pulled the office phone wires out of the wall.

On the evening of the second robbery, Dr. Anthony DePativo cancelled his

appointments for patients he had scheduled to see in the New Jersey office that evening,

4
and reported the robbery to the police. No evidence at trial suggested that the patient

appointments were not successfully rescheduled, i.e. no evidence indicated that patient

hours or income were lost.

After these two armed robberies in four days in July 2003, the doctors and staff

became frightened. According to testimony by Dr. Carl DePativo, DCC cancelled all of

its patient appointments at the Spruce Street office “[t]he week after” the robberies and

had a new security door system installed. (J.A. 87.) No testimony suggested that these

appointments were not rescheduled or that any patient hours were ultimately lost.

Approximately eight months later, in March 2004, DCC closed the Spruce Street office,

apparently because the doctors and staff were still too frightened to continue working at

that location. Dr. Carl DePativo testified that “nobody wanted to work” in the office

because employees were “all . . . skittish about what had happened.” (J.A. 88.) The

North Broad Street and New Jersey offices remain open. No testimony at trial suggested

that DCC’s use of medical supplies manufactured out-of-state declined from the time of

the robbery until the closing of the Spruce Street office.

On March 8, 2005, a grand jury in the Eastern District of Pennsylvania returned an

indictment against Rutherford, charging him with: two counts of interference with

interstate commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a); one

count of conspiracy to interfere with interstate commerce by robbery, in violation of the

Hobbs Act and 18 U.S.C. § 2; and two counts of knowingly using and carrying a firearm

5
during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).

Rutherford pled not guilty. After a two-day trial, the jury returned a guilty verdict

on all counts in September 2005. On January 30, 2006, the District Court sentenced

Rutherford to 509 months’ imprisonment: 125 months on the robbery counts and 384

months on the firearm counts, to run consecutively. The court also sentenced Rutherford

to five years’ supervised release and imposed restitution of $1,290. Rutherford filed a

timely appeal with this Court. Rutherford only appeals his conviction and does not

appeal his sentence.

II.

Rutherford argues that there was insufficient evidence presented at trial to support

the jury’s guilty verdict under the Hobbs Act. While this Court’s review of a challenge

to the sufficiency of the evidence is plenary, United States v. Mussare, 405 F.3d 161, 166

(3d Cir. 2005), such an argument places a “very heavy burden on an appellant” because

we employ “a particularly deferential standard of review when deciding whether a jury

verdict rests on legally sufficient evidence,” United States v. Dent, 149 F.3d 180, 187 (3d

Cir. 1998). Accordingly, when reviewing a jury verdict for insufficient evidence, we do

not weigh the evidence or determine the credibility of the witnesses, but will “view the

evidence in the light most favorable to the government, and will sustain the verdict if any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (quoting United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.

6
1996) (citation and internal quotation marks omitted)). Only if no rational jury could

have found the essential elements of a crime beyond a reasonable doubt can we vacate a

jury’s verdict. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Mussare, 405 F.3d

at 166. “Our task is not to decide what we would conclude had we been the finders of

fact; instead, we are limited to determining whether the conclusion chosen by the

factfinders was permissible.” United States v. Ashfield, 735 F.2d 101, 106 (3d Cir.

1984).

Rutherford also appeals the District Court’s denial of his motion for judgment of

acquittal under Federal Rule of Criminal Procedure 29. As with review of the jury

verdict for insufficient evidence, our review of a motion for judgment of acquittal “is

plenary and, in exercising that review, we must interpret the evidence in the light most

favorable to the government as the verdict winner.” United States v. Taftsiou, 144 F.3d

287, 290 (3d Cir. 1998).

The Hobbs Act makes robbery a federal crime where the defendant “in any way or

degree obstructs, delays, or affects commerce or the movement of any article or

commodity in commerce.” 18 U.S.C. § 1951(a). “The question of whether a

defendant’s acts satisfy the jurisdictional predicate of the Hobbs Act is one of law,”

United States v. Buffey, 899 F.2d 1402, 1407 (4th Cir. 1990), and “[t]he charge that

interstate commerce is affected is critical since the Federal Government’s jurisdiction of

this crime rests only on that interference,” Stirone v. United States, 361 U.S. 212, 218

7
(1960). However, the burden on the Government is very low. If the robbery “produces

any interference with or effect upon interstate commerce, whether slight, subtle or even

potential, it is sufficient to uphold a prosecution” under the Hobbs Act. United States v.

Haywood, 363 F.3d 200, 210 (3d Cir. 2004) (quoting Jund v. Town of Hempstead, 941

F.2d 1271, 1285 (2d Cir. 1991)). The Hobbs Act “speaks in broad language, manifesting

a purpose to use all the constitutional power Congress has to punish interference with

interstate commerce by extortion, robbery or physical violence.” Stirone, 361 U.S. at

215.

The Government contends that the interstate commerce requirement of the Hobbs

Act was met here by the following evidence: 1) DCC was an open and active business

engaging in and affecting interstate commerce at the time of the robberies; 2) DCC used

medical items that traveled in interstate commerce; 3) after the second robbery, Dr.

Anthony DePativo cancelled patient appointments at the New Jersey office because the

doctor was at the police station; 4) the week following the robberies, DCC closed the

Spruce Street office for a day to install a new security door; and 5) approximately eight

months later, DCC closed the Spruce Street office because “they just weren’t willing to

work there anymore because of the fear that these robberies began.” (J.A. 462).

Rutherford claims on appeal that the Government did not offer sufficient proof of

the interstate commerce nexus to support his conviction under the Hobbs Act. He

stresses that no money or property of the DCC business was stolen in the two robberies;

8
rather, only personal property and personal cash were stolen from the Drs. DePativo and

Ms. Perez. He also notes that the Government presented no evidence that DCC lost any

patients or patient hours, or purchased fewer supplies from out-of-state manufacturers

after the robberies. Rutherford argues that installation of the new security door and

eventual closing of the Spruce Street office should not be considered as effects of the

robberies, as these events were too remote in time and were future-oriented, preventative

measures. Such measures “to try to enhance their security” “might just as well have been

taken if [the DePativos] had been mugged in the street, or if one of the residential tenants

in their building had been similarly robbed.” (Rutherford Br. at 9-10.)

III.

At first blush, one could reasonably question, under our federalist system, whether

an otherwise “garden-variety” armed robbery of individuals in a chiropractic office could

constitute a federal crime. Indeed, Rutherford’s argument on appeal boils down to the

contention that the “offenses here were of a quintessentially local variety and as such they

were for the [Commonwealth] of Pennsylvania to prosecute, not the federal government.”

(Rutherford Br. at 10, 13.) As we discuss below, prosecution of these crimes by the

Commonwealth of Pennsylvania might have been a more prudent course of action.

However, federal courts – including our Court – have repeatedly and almost uniformly

construed the Hobbs Act’s interstate commerce requirement extremely broadly. We have

required only a “potential” or “de minimis” effect on interstate commerce to support a

9
Hobbs Act conviction. See, e.g., United States v. Urban, 404 F.3d 754, 766 (3d Cir.

2005); Haywood, 363 F.3d at 209-10; United States v. Clausen, 328 F.3d 708, 711 (3d

Cir. 2003).

Urban involved extortion by Philadelphia plumbing inspectors and specifically

considered the “depletion of assets” theory, “whereby proof that a Hobbs Act violation

depletes the assets of a business engaged in interstate commerce conclusively establishes

the effect on commerce requirement.” Urban, 404 F.3d at 762. In upholding the

convictions in Urban, we discussed our consistent and repeated endorsements of the

depletion of assets theory, and more generally the rule that proof of merely a potential

effect on commerce is all that is needed under the Hobbs Act. Id. at 763-67.1 Based on

our review of extensive Third Circuit precedent in Urban, we reiterated that all that is

required under the Hobbs Act is a “reasonably probable effect on commerce, however

minimal.” Urban, 404 F.3d at 763-64 (quoting United States v. Cerilli, 603 F.2d 415,

424 (3d Cir. 1979)); see also Urban, 404 F.3d at 763 (“[T]he Hobbs Act may

constitutionally be construed to reach the indirect burdens placed on interstate commerce

by the extortionate activities alleged in this case and that such a construction of the statute

accords with Congressional intent to proscribe extortion which ‘in any way or degree

1
At oral argument, we asked counsel for Rutherford if he had cited Urban in his
briefs, and if not, why. Counsel responded that “we do cite Urban in our reply brief.”
After a close review of both Rutherford’s initial and reply briefs, we could not locate any
citation to, let alone discussion of, Urban. We suggest that counsel be more careful in
the future.

10
obstructs, delays, or affects commerce.’” (quoting United States v. Mazzei, 521 F.2d 639,

642 (3d Cir. 1975) (en banc))). As we noted in Urban, the overwhelming weight of

authority from our sister circuits supports the “potential effect,” de minimis reading of the

Hobbs Act. Urban, 404 F.3d at 765 n.3.

Rutherford first argues that, as a constitutional matter, the Supreme Court’s

opinion in United States v. Lopez, 514 U.S. 549 (1995), dictates that, even under a de

minimis standard, this Court should not allow the Government to “to pile inference upon

inference in a manner that would bid fair to convert congressional authority under the

Commerce Clause to a general police power of the sort retained by the states.”

(Rutherford Br. at 14 (citing Lopez, 514 U.S. at 567).) The defendant in Urban raised

the same theory, contending that Lopez and its progeny – United States v. Morrison, 529

U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000)2 – cast constitutional

doubt on the “potential effect” reading of the Hobbs Act and requires a finding of an

“actual effect.” Urban, 404 F.3d at 766. The Urban court rejected this argument, as did

our earlier opinion in Clausen. Clausen held that the Hobbs Act “regulate[s] activity

which occurs locally but which has an explicit nexus with interstate commerce, and [is]

therefore distinguishable from the statutes at issue in Lopez and Morrison.” Clausen,

328 F.3d at 711. In Clausen, “we followed the lead of other circuits, including the Fifth

It should be noted that Jones, while addressing Congress’s authority under the
2

Commerce Clause, ultimately avoided the constitutional question and held that the statute
under review did not reach to the fullest extent of Congress’s commerce power. Jones,
529 U.S. at 856-58.
11
Circuit, which had held that after Lopez, ‘legislation concerning an intrastate activity will

be upheld if Congress could rationally have concluded that the activity, in isolation or in

the aggregate, substantially affects interstate commerce.’” Urban, 404 F.3d at 766 (citing

United States v. Robinson, 119 F.3d 1205, 1211 (5th Cir. 1997)). Clausen and Urban

endorsed the view of the Fifth Circuit in Robinson that “‘the cumulative result of many

Hobbs Act violations is a substantial effect upon interstate commerce,’ and that

substantial effect empowers Congress to regulate pursuant to the Commerce Clause.”

Clausen, 328 F.3d at 711 (quoting Robinson, 119 F.3d at 1215); see also Urban, 404 F.3d

at 766. Thus, we reject Rutherford’s argument that Lopez and its progeny invalidate his

conviction under the Hobbs Act.

Turning to the statutory standard, Rutherford primarily argues that even under the

de minimis, potential effects test, “the effect still must be more than a speculative,

attenuated ‘one step removed’ kind of effect.” United States v. Mattson, 671 F.2d at

1020, 1023 (7th Cir. 1982). He contends that the effects cited by the Government were

too attenuated in time and cause from the robberies to qualify as effects, whether actual or

potential, of the robberies, and that the robberies should at least be analogized to

robberies of an individual on the street rather than robberies of a business.

With regard to the latter theory, courts have indeed been hesitant to find the

requisite interstate commerce nexus in cases involving robberies of individuals that have

some connection with interstate commerce, and especially involving robberies of

12
individuals in the home. See United States v. Jiminez-Torres, 435 F.3d 3, 7-8 (1st Cir.

2006) (“Where . . . 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.”);

see also, e.g., United States v. Perrotta, 313 F.3d 33, 36-40 (2d Cir. 2002); United States

v. Turner, 272 F.3d 380, 384-85 (6th Cir. 2001). Rutherford indicates that his reliance

on cases such as these “is not to suggest that [his] argument is dependant upon the

characterization of this case as a robbery of an individual rather than a business.”

(Rutherford Br. at 16 n.6.)

Despite this disclaimer, his argument boils down to just such an inapt

characterization. Rutherford stresses that he and his accomplice only stole personal cash

and assets of employees at DCC, and no evidence suggests that property of the business

was taken. He therefore contends that the DePativos “might well have” decided to take

their subsequent actions – cancelling patient appointments, installing a new security door

at the Spruce Street office, and eventually closing the Spruce Street office – “if they had

been mugged outside of their office or if one of the residential tenants in their building

had been robbed.” (Rutherford Br. at 19.) If indeed this were the case, Rutherford

might have a colorable argument that the effect on interstate commerce of the robberies of

personal property was too attenuated. But these robberies took place in the office of a

business engaged in interstate commerce. Rutherford’s Hobbs Act convictions depended

13
not just on the fact that the victims worked for a business engaged in interstate commerce,

but also on the crucial facts that the robberies occurred in the place of business during

business hours, and that Rutherford posed as a patient – a customer – of the business.

Rutherford’s argument is akin to that rejected by the First Circuit in United States

v. Vega Molina, 407 F.3d 511, 527 (1st Cir. 2005). The defendants in Vega Molina

robbed employees in a business office engaged in interstate commerce, and argued on

appeal that the “government failed to prove any effect on commerce because the

perpetrators only took money from [the office’s] employees, not from the business itself.”

Id. The First Circuit dismissed defendant’s argument as “specious” and declared that

“[i]t conveniently overlooks the profound effect” that defendant’s robbery had on the

victim’s office. Id. It reasoned that “[t]he commission of a violent crime in the

workplace inevitably will constitute a wrenching, if unquantifiable, blow to morale and

productivity.” Id. (holding that robbery at business, coupled with business closing the

office the next day, constituted “more than adequate” evidence “to demonstrate at least a

de minimis effect on commerce”).

The same reasoning applies here. Rutherford’s robberies had a clear effect on

morale and productivity at DCC, as demonstrated by the DePativos’ trial testimony, the

installation of a new security door, and the subsequent closing of the office. Rutherford

relies on the notion that the Government failed to offer any proof that the robberies

resulted in any depletion of assets, reduction in purchases of interstate supplies, or loss of

14
patient hours. However, even though the cancelled patient appointments apparently were

rescheduled, these cancellations constitute, at minimum, a potential effect on interstate

commerce and an obstruction of interstate commerce. The Hobbs Act requires no more.

Based on the facts of this case, for the Government to meet its burden, it simply did not

need to present proof that DCC suffered any actual loss of patient hours or other depletion

of assets.

In addition, Rutherford attempted to steal drugs from the doctors’ offices; this

attempt constituted a potential effect on interstate commerce in that Rutherford sought to

steal business property and thereby disrupt commerce. In Perrotta, the Second Circuit

outlined several instances “where a robbery or extortion of an employee of a business

engaged in interstate commerce would likely support Hobbs Act jurisdiction.” 313 F.3d

at 37. One such instance is where “the crime targeted the assets of a business rather than

an individual.” Id. at 38. Here, Rutherford targeted in part the business assets of DCC,

and searched some part of the office for drugs, even if he only succeeded in stealing the

personal assets of DCC’s employees.

Rutherford further contends that DCC’s installation of a new security door

approximately one week after the robberies was not an effect of the robbery because the

old door was not damaged in the robbery, and was installed as an attempt “to ensure that

no additional robberies would occur in the future.” (Rutherford Br. at 18.) It goes too

far on Rutherford’s part to depict the installation of the new security door as merely a

15
“discretionary security measure” (Rutherford Reply Br. at 3 n.1) rather than a response to

and effect of the robbery. The door was installed as a direct response to the robbery and

its installation at least potentially affected interstate commerce by forcing the cancellation

of patient appointments. Rutherford claims that if the “discretionary security measure”

here provided a sufficient basis for federal jurisdiction, then “the Act would apply to

virtually any street mugging so long as any businesses in the area reacted to the crime by

purchasing some type of additional security.” (Rutherford Reply Br. at 3.) Maybe so,

and perhaps under Rutherford’s alternative scenario the Hobbs Act might be stretched too

far. But again, such a case is not us. DCC did not install the new security door in

response to a mugging down the street; rather, the door was installed to assuage fears at

the victimized office resulting from a robbery in the office just one week prior.

Rutherford accuses the Government of applying an “Alice in Wonderland” approach and

“hypothesiz[ing] a different robbery than the one that actually occurred.” (Rutherford

Reply Br. 7.) Yet the Government may indeed rely on “potential” effects. Rutherford,

on the other hand, repeatedly “hypothesizes a different robbery” than the two he

committed, and his reading of the “effects” of his robberies is too narrow under the law of

this and other Circuits.

Finally, Rutherford challenges the sufficiency of proof of the interstate commerce

nexus by focusing on the length of time between the robberies and the closing of the

Spruce Street office. He relies on Perrotta, in which the Second Circuit suggested that,

16
in assessing jurisdiction under the Hobbs Act, a court should examine the “time frame

charged in the indictment.” Perrotta, 313 F.3d at 39-40.3 Here, the Indictment against

Rutherford only charges the robberies on July 7 and 11, 2003, and does not expressly

charge a time period that includes March 2004, when DCC closed the Spruce Street

office. We recognize that, generally, there must be some outer temporal limit of

relevance in a Hobbs Act case. However, based on the Supreme Court’s and our Court’s

broad reading of the Hobbs Act, a jury may appropriately determine whether a certain act

was an effect of the robbery on a case-by-case basis. Here, trial testimony clearly

established that the DePativos closed the Spruce Street office due to the continued fear

and unease of employees and patients at the office in the months following the robberies.

As Dr. Carl DePativo testified, “nobody” wanted to work in the office because they

were “skittish about what had happened.” (J.A. 88.) The closing of the office, coupled

3
In Perrotta, the Second Circuit declined to rely on evidence that the private dispute
between the victim and the defendant affected the business where both worked because
the alleged effects on the business occurred outside the range of time charged in the
indictment. Perrotta, 313 F.3d at 38-39. However, Perrotta’s discussion of time frame
is distinguishable here. Perrotta considered an appeal from the retrial of the defendant.
For the second trial, the Government redrafted and narrowed the indictment against the
defendant in part to preclude evidence of a prior business dispute between the defendant
and the target of his extortion, apparently to avoid the jury having “sympathy for
defendant and dislike for the victim.” Id. at 39. “At every opportunity, the government
used the narrowed indictment to support evidentiary objections to events outside the time
frame charged.” Id. Because the Government based its Hobbs Act prosecution on
effects related to the business dispute and that occurred “well outside” the time frame
charged in the indictment, id., the Second Circuit refused to allow the Government,
colloquially speaking, to “have its cake and eat it too.” Clearly, such concerns are absent
in our case.

17
with the earlier effects of the robberies – both actual and potential – rise to the level of a

de minimis effect on interstate commerce sufficient to sustain a conviction under the

Hobbs Act. Based on the circumstances surrounding the closing of the office, combined

with the other evidence presented, a reasonable jury could find that the Hobbs Act’s

interstate commerce requirement was met.4

IV.

At oral argument, counsel for the Government represented that this case was

prosecuted in federal court because of information received from Elijah Smith,

Rutherford’s accomplice in the second robbery, and S.W., Rutherford’s friend who

worked at times for DCC. Smith and S.W. pled guilty to a series of federal crimes

unrelated to the offenses before us, and during the course of their cooperation with the

United States Attorney’s Office for the Eastern District of Pennsylvania provided

information about Rutherford and the DCC robberies.

As discussed above, sufficient evidence supported Rutherford’s conviction under

the Hobbs Act. However, the prosecution of Rutherford in federal court for these

robberies nonetheless implicates federalism concerns of fundamental importance. “[T]he

4
Rutherford argues that the District Court should not have admitted evidence
regarding the new security door and closing of the Spruce Street office because they were
too distant in time from the robberies and therefore not relevant to proving the requisite
effect on interstate commerce. We review the District Court’s admission of evidence for
abuse of discretion. United States v. Frazier, 469 F.3d 85, 87 (3d Cir. 2006). Because
the subsequent activities were effects of the robberies and relevant to the Hobbs Act
inquiry, the District Court did not err in admitting such evidence.

18
Hobbs Act was intended to reach only certain activities that hamper interstate business,

reflecting the long-recognized principle that the states are best positioned and equipped to

enforce the general criminal laws.” United States v. Collins, 40 F.3d 95, 101 (5th Cir.

1994). In our federalist system, the Pennsylvania state government might have been

“best positioned and equipped” to prosecute Rutherford here. The federal authorities

might have been the first, with the assistance of the cooperating federal defendants, to

procure information crucial to prosecuting Rutherford, but this alone should not have

prevented informing Pennsylvania authorities of this information and allowing the

Commonwealth to handle this case. While there was sufficient evidence here to support

conviction under the Hobbs Act based on the de minimis interstate commerce

requirement, the federal government might better focus its resources and unique expertise

on truly “federal” matters and, where possible, leave enforcement of general criminal

laws to the states.

V.

The Government offered sufficient proof that Rutherford’s robberies affected

interstate commerce such that federal jurisdiction and conviction under the Hobbs Act

were proper. A rational jury could easily find that his robberies had at least a de minimis,

potential effect on interstate commerce. Rutherford’s convictions under § 924(c) for

carrying a firearm in connection with a crime of violence also depend on his robberies

being federal crimes. We will affirm Rutherford’s convictions in their entirety.

19
AMBRO, Circuit Judge, with whom Judge McKee joins, concurring.

I join Judge Ackerman’s fine opinion. I write separately, however, to add to the

comments made about prosecuting Rutherford at the federal level. As our opinion today

makes clear, prosecuting numerous “garden-variety” crimes is within the Federal

Government’s power under the Hobbs Act. That is the natural consequence of

Congress’s decision to regulate the crime of robbery to the fullest extent of its commerce

power. Indeed, the breadth of the Hobbs Act was not lost on Congress at the time of its

passage.5

What we see here, though, is a relatively new use of the Hobbs Act that deserves

comment. At the age of only 25, Daniel Rutherford is already a career criminal—enough

so to exceed the criminal history points necessary to reach a criminal history of VI (the

maximum) under the Sentencing Guidelines. As numerous commentators have written,

federal sentences are typically much longer than their state counterparts. See, e.g.,

Ronald F. Wright, Federal or State? Sorting as a Sentencing Choice, 21 CRIM. JUST.,

Summer 2006, at 16, 17–19; John S. Baker, Jurisdictional and Separation of Powers

Strategies To Limit the Expansion of Federal Crimes, 54 AM. UNIV. L. REV. 545, 575–76

(2005); Task Force on the Federalization of Criminal Law, Am. Bar Ass’n, The

5
The House Judiciary Committee’s Minority Report lambasted the nascent Hobbs Act
for federalizing traditional state crimes. H.R. REP. NO. 78-66, at 14 (1944). The Majority
Report did not deny it; rather, it emphasized Congress’s “exclusive and unlimited power
to regulate interstate commerce.” Id. at 9. Similarly, in floor debate Representative
Hobbs responded to criticism that the Act was aimed exclusively at organized labor by
noting that it applied to all robberies and extortions with some effect on interstate
commerce. 91 CONG. REC. 11912 (1945) (statement of Rep. Hobbs).

1
Federalization of Criminal Law 14–15 (1998). In particular, brandishing a firearm while

committing a crime brings a mandatory consecutive seven-year sentence, and a second

such offense brings a mandatory consecutive 25-year sentence. 18 U.S.C. § 924(c)(1).

The catch, of course, is that the predicate offense must be a federal crime. Thus, by

prosecuting Daniel Rutherford for two Hobbs Act violations in which he brandished

firearms, the Government achieved a mandatory 32-year sentence for the gun crimes, and

a Guidelines-recommended range of 10–12 additional years for the Hobbs Act violations.

Thus, we have Rutherford’s 42-year sentence—a length that would be unthinkable in

many state systems for these underlying facts.6

What has this wrought? By prosecuting Rutherford at the federal level, the

Federal Government has effectively incapacitated a career criminal for the remainder of

his adult life. To do so, however, it has overridden the default state criminal system in

what looks like a classic state-law crime.7

6
For a comprehensive overview of how federal gun-related enhancements have
spurred federal prosecutors to involve themselves with traditionally state crimes, see
generally Sara Sun Beale, The Unintended Consequences of Enhancing Gun Penalties:
Shooting Down the Commerce Clause and Arming Federal Prosecutors, 51 DUKE L.J.
1641 (2002).
7
As Judges McKee and Smith noted in United States v. Bonner, 363 F.3d 213 (3d Cir.
2004), judges should tread carefully when criticizing a legitimate use of prosecutorial
discretion, as that power is not ours to wield. Id. at 219–20 (Smith, J., concurring); id. at
228 (McKee, J., dissenting). Yet it is difficult in this case not to point out this new and
probably unanticipated use of the Hobbs Act. It is also hard not to wonder whether
prosecuting this garden-variety robbery in order to obtain a virtual life sentence is the
best use of scarce federal resources.

2