United States v. Kaplan

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 95-4908 04/09/99
THOMAS K. KAHN
-------------------------------------------- CLERK

D. C. Docket No. 94-422-CR-SH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BARRY KAPLAN,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida

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(April 9, 1999)

Before HATCHETT, Chief Judge, and TJOFLAT, ANDERSON, EDMONDSON,
COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS,
Circuit Judges.

EDMONDSON, Circuit Judge:
 This controversy arises from defendant’s conviction of

attempted extortion and conspiracy to commit extortion under

the Hobbs Act. We conclude that the government presented

sufficient evidence to support the jury’s findings for the Hobbs

Act violations, and we affirm the convictions.

Background

In 1984 and 1985, Defendant Barry Kaplan, a resident of

Miami, Florida, placed several hundred thousand dollars1 into two

Panamanian bank accounts through the aid of a Panamanian

lawyer named Pablo Arosemena. Kaplan gave Arosemena power

of attorney over the two bank accounts for the ostensible purpose

of disguising Kaplan’s ownership of the funds and thereby

evading taxation in the United States. Between 1984 and 1989,

1
Evidence indicates that Kaplan, in 1989, believed that he had a balance of
approximately $550,000 remaining in the accounts.

2
transfers of funds were made2 from the accounts to different

banks located throughout the world.3

In 1988 or 1989, Kaplan, in financial peril, sought return of

the money. But Arosemena refused and allegedly threatened

Kaplan. Kaplan then enlisted the help of Mario Fonseca, another

Panamanian lawyer, to attempt to recover the money. Fonseca

investigated the matter and found that Arosemena had taken

money from the accounts. Fonseca testified that Arosemena

threatened to report Kaplan’s offshore funds to the United States

Internal Revenue Service if Kaplan pursued the matter.

After deciding against a civil suit or criminal prosecution

against Arosemena in Panama, Kaplan discussed his

predicament with Roy Gelber, then a Dade County Circuit Judge.4

2
From the record, whether some or all of these transfers were made at Kaplan’s
request or whether Arosemena made the transfers for himself, to repay his own
personal and business debts, is unclear.
3
A Panamanian lawyer who investigated the accounts for Kaplan testified that
approximately one million dollars had been “run through” the accounts.
4
Gelber had previously represented Kaplan on another matter while Gelber was
still in private practice.

3
Gelber then contacted Raymond Takiff, a Florida lawyer who had

represented General Manuel Noriega, the de facto leader of

Panama at the time.

Kaplan, Gelber and Takiff began to discuss the matter in

June 1989 and continued to do so until the early part of 1990.

Takiff claimed that he could facilitate the retrieval of Kaplan’s

money through his connections to the Panamanian Defense

Force. Takiff reported to Gelber on many occasions, by

telephone from various states, that he had been in Panama

working on Kaplan’s problem. Takiff also told Gelber that he

would be utilizing an officer in the Panamanian Defense Force to

obtain the funds from Arosemena and that this officer and his

cohorts would have to be paid, in Panama, for their efforts.

During a taped conversation,5 Takiff expressed concern that

5
Without the knowledge of Kaplan and Gelber, Takiff had begun, in August 1989,
to cooperate with the federal government in an attempt to resolve his own criminal
problems. Under the direction of law enforcement officials, Takiff began to record
his conversations with Kaplan and Gelber. The audio and video tapes (and
transcripts of the same) were admitted into evidence at trial.

4
Arosemena could be killed in the process; and Gelber said that he

had relayed this information to Kaplan.

Gelber, Takiff and Kaplan met in person in September 1989

to discuss the plan to obtain the money.6 Takiff told Kaplan that

soldiers from the Panamanian Defense Force would be sent to

Arosemena’s office and that the soldiers would force Arosemena

to sign cards for the withdrawal of the money. Takiff warned

Kaplan that, although Takiff did not want Arosemena to be

injured, Arosemena could be killed. Kaplan was aware that

violence would play a part in the transaction and agreed to the

details of the plan.

About the expected proceeds, Takiff initially suggested that

the funds be transferred by wire. Kaplan at one point suggested

that he could go to Panama to pick up the money himself. But

ultimately, the coconspirators agreed that Kaplan would accept a

check in Florida, payable to a Bahamian lawyer, referenced to an

6
Takiff also tape recorded this meeting pursuant to his agreement to cooperate
with the government.

5
offshore account. Kaplan was advised that expenses, including

Takiff’s air travel between the United States and Panama in

furtherance of the plot, would be deducted by Takiff from the

recovered money. Takiff and Gelber were to split evenly 40% to

50% of the net proceeds, with the remaining amount going to

Kaplan.

As part of the government’s process of investigating, Kaplan

was informed (untruthfully) that, pursuant to the plan, soldiers did

visit Arosemena and that force was used in an effort to obtain

access to the money. The plan, however, was never actually

carried out.

Kaplan was indicted for conspiracy to commit extortion in

violation of the Hobbs Act, 18 U.S.C. 1951 (Count I), and

attempted extortion in violation of the Hobbs Act and the Travel

Act, 18 U.S.C. § 1951 and 2 respectively (Count III).7 The jury

7
Kaplan was also charged with collection of an extension of credit by
extortionate means, in violation of 18 U.S.C. § 894. The trial court granted him a
judgment of acquittal on this charge at the conclusion of all the evidence.

6
returned a verdict finding Kaplan guilty on both counts.8 Kaplan

was sentenced to thirty months incarceration and a $6,000 fine.

Kaplan appealed, arguing, among other things, that the

government had failed to present sufficient evidence of an effect

on commerce under the Hobbs Act. A panel of this court reversed

his convictions. United States v. Kaplan, 133 F.3d 826 (11th Cir.),

vacated and reh’g en banc granted, 148 F.3d 1223 (11th Cir.

1998). The panel believed that the government must prove an

adverse effect on independent, preexisting commerce to satisfy

the Hobbs Act. Id. at 829, 831.

We granted the government’s petition for rehearing en banc

in this Hobbs Act case to decide whether the evidence

established the requisite effect on commerce, including whether

that effect must be adverse to satisfy the Hobbs Act.9

8
For Count III, judgment was entered only on the Hobbs Act violation.
9
Kaplan’s other arguments -- about the jury instructions, sentencing, evidence of
extortion, and extraterritorial application of the Hobbs Act -- lack merit and are not
discussed herein.

7
 Discussion

The Hobbs Act prohibits extortion, and attempts or

conspiracies to extort, that "in any way or degree obstruct[],

delay[], or affect[] commerce or the movement of any article or

commodity in commerce." 18 U.S.C. § 1951(a).10 “Commerce”

is defined in the Act as “all commerce between any point in a

state . . . and any point outside thereof.” 18 U.S.C. § 1951(b)(3).

Two elements are essential for a Hobbs Act prosecution: extortion

and an effect on commerce. Kaplan, 133 F.3d at 828; § 1951(a).

This appeal concentrates on the latter requirement: the effect-on-

commerce element.11

10
The statute states, 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 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.” § 1951(a).
11
Kaplan properly preserved this issue for our review by his Rule 29 motions
questioning the sufficiency of the evidence.

8
 I.

The Supreme Court has explained that the Hobbs Act

contemplates full application of Congress’s commerce power: the

“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 v. United States, 361 U.S. 212, 215 (1960). And “[w]e

have already determined as a matter of law that the impact on

commerce does not need to be substantial; all that is required is

minimal impact.” United States v. Castleberry, 116 F.3d 1384,

1388 (11th Cir. 1997); see also United States v. Guerra, 164 F.3d

1358, 1361 (11th Cir. 1999) (“[A]n individual defendant’s conduct

need not substantially affect commerce precisely because the

9
Hobbs Act regulates general conduct -- robberies and extortion --

which in the aggregate affects commerce substantially.”).

The Hobbs Act, by its own terms, encompasses the inchoate

offenses of attempt to extort and conspiracy to extort. “Where

attempted extortion or conspiracy to extort are charged, the

interstate nexus may be demonstrated by evidence of potential

impact on interstate commerce, or by evidence of actual, de

minimis impact.” United States v. Farrell, 877 F.2d 870, 875 (11th

Cir. 1989) (citations omitted); see also United States v.

DiCarlantonio, 870 F.2d 1058, 1061-62 (6th Cir. 1989) (“While a

substantive Hobbs Act violation requires an actual effect on

interstate commerce, a conspiracy charge requires the government

to prove only that defendants’ scheme would have affected

commerce.”). So, the government need only show a realistic

probability of an effect, or some actual de minimis effect, on

commerce to bring the extortion within the reach of the Hobbs

Act.

10
 Kaplan contends the government failed to bring forth

sufficient evidence that the scheme would have produced an

effect on commerce. The main question in this case, then, is

whether, viewing the evidence in the light most favorable to the

government, sufficient evidence was presented to allow a jury to

find Kaplan guilty beyond a reasonable doubt. See Castleberry,

116 F.3d at 1387-88.

The government brought forth evidence that, if Kaplan’s

scheme had succeeded, commerce would have been affected.

The conspiracy required at least one transaction between Florida

and Panama12 -- the payment of the extortion demand to Kaplan13

-- for the conspiracy to be of benefit to the coconspirators. Kaplan

sought access to these funds because he had exhausted his

12
Kaplan does not contest the existence of substantial, general commerce
between the United States and Panama.
13
According to Kaplan, once the funds had been obtained from Arosemena, they
were to be transferred to Kaplan at an undetermined location in an undetermined
manner. But, the government presented sufficient evidence to allow the jury to
conclude that Kaplan would receive the money in the form of a check in Florida.
And we must, in this appeal, view the facts in the light most favorable to the
government, drawing all inferences and credibility choices in favor of the jury’s
verdict. See Castleberry, 116 F.3d at 1387-88.

11
personal assets, and the coconspirators were to be paid from the

money Kaplan received. So, the jury was entitled to find that the

movement of substantial funds from Panama to Florida was the

object of the coconspirator’s extortion plan. See United States v.

Eaves, 877 F.2d 943, 946 (11th Cir. 1989) (determining that

payment of monies between Georgia and Florida satisfied Hobbs

Act’s effect-on-commerce element); United States v. Staszcuk,

517 F.2d 53, 56 (7th Cir. 1975) (en banc) (affirming conviction

where effect on commerce from the extortion would have been

the movement of building materials across state lines); see also

United States v. Hollis, 725 F.2d 377, 380 (6th Cir. 1984) (noting

that interstate payment of money from which victim was extorted

constituted commerce).

Kaplan argues that the transfer of funds to the United States

would constitute a later use of the proceeds of the extortion

rather than the extortion itself,14 which Kaplan says was to occur

14
“The term ‘extortion’ means the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened force, violence, or fear, or

12
wholly within Panama. But, given the evidence, the jury did not

have to find a clean break between the forceful acts and the

movement of funds. For example, the evidence did not demand

a finding that there were to be two conspiracies -- one to extort

and a different one to transfer funds internationally. Instead, the

jury could view the planned transfer of the money to Florida as

evidence that the attempt and conspiracy to extort would have

affected commerce within the meaning of the Hobbs Act. See

United States v. Taylor, 966 F.2d 830, 836 (4th Cir. 1992) (finding

“no merit to . . . contention that the . . . Hobbs Act require[s]

interstate commerce to have been affected by the extortion and

not by a result of the extortion”); see also United States v. Blair,

762 F. Supp. 1384, 1389 n.7 (N.D. Ca. 1991) (“An individual may

be extorted in a manner which affects interstate commerce if the

actual extortionate payment forces the individual to perform a

direct interstate transaction.”). In this case, a close and

under color of official right.” § 1951(b)(2).

13
continuing nexus exists between the acts of coercion and the

transmittal of the funds to Florida: the plan would have served no

purpose if the money was not ultimately received by Kaplan in

Florida.

The government’s proof at trial also showed that, within the

framework of the plan, Takiff was to travel from Florida to

Panama.15 The plan was orchestrated in the United States to be

carried out in another country. So, the different locations of the

coconspirators necessitated activity in interstate and foreign

commerce to coordinate the scheme. Takiff told Kaplan, at one

of their meetings in the United States, that Takiff could set up the

plan “with a phone call.” During recorded conversations, Takiff

offered to contact high ranking individuals in the Panamanian

15
As Kaplan’s own brief states, “Takiff made it clear to Kaplan and Gelber that
Takiff’s presence in Panama was essential to insure that nothing harmful
happened to Arosemena.”

14
Defense Force (in Panama) who could retrieve the money from

Arosemena in Panama.16

Also material to our decision is the government’s evidence

of an actual effect on commerce. Gelber testified that he often

spoke to Takiff on the telephone, while Takiff was in other parts

of the country. See United States v. Atcheson, 94 F.3d 1237,

1243 (9th Cir. 1996) (“[Defendants’] placement of out-of-state

phone calls [in furtherance of conspiracy to extort] . . . created a

further connection with interstate commerce.”). And Gelber

testified that Takiff often reported that he had traveled to Panama

and had been working on Kaplan’s problem. “There is nothing in

the legislative history of the Hobbs Act that would require an

effect on commerce subsequent to, rather than contemporaneous

with, the extortion.” Hollis, 725 F.2d at 380.

16
Anticipating this proof at trial, Count I of the indictment charged: “It was part of
the conspiracy that the defendant would and did contact an individual he believed
to have influence with the Panamanian Defense Force (“PDF”) for the purpose of
employing PDF soldiers to use actual and threatened force, violence and fear to
induce Pablo Arosemena to consent to give money to the defendant.”

15
 Kaplan argues that his conduct, if a crime at all, constitutes

a Travel Act17 violation, and not a Hobbs Act violation. But the

use of interstate or foreign transportation and communication

facilities to carry out a scheme of robbery or extortion may

constitute -- in conjunction with other facts -- a sufficient effect

upon commerce for a Hobbs Act conviction for conspiracy or

attempt to extort. See Atcheson, 94 F.3d at 1243 (“To support .

. . conviction of conspiracy [to violate the Hobbs Act], the

Government need only show that the totality of [the

coconspirators’] actions had a de minimis effect on interstate

commerce.”). And, the same conduct may violate more than one

statute.18 See, e.g., Missouri v. Hunter, 459 U.S. 359, 366-68

17
The Travel Act proscribes the “travel[] in interstate or foreign commerce or
[use of] the mail or any facility in interstate or foreign commerce, with intent to –
(1) distribute the proceeds of any unlawful activity; or
(2) commit any crime of violence to further any unlawful activity; or
(3) otherwise promote, manage, establish, [or] carry on . . . any
unlawful activity,“
and thereafter performs or attempts to perform one of the foregoing acts. 18
U.S.C. § 1952.
18
But judgment was not entered against Kaplan on the Travel Act violation.

16
(1983) (noting, in context of double jeopardy analysis, that

multiple statutes may proscribe the same conduct).

In this case, the potential effects, combined with the

evidence of actual effects, are sufficient to establish the minimal

effect on commerce required under the Hobbs Act.

II.

Having determined that the conduct of Kaplan and his

coconspirators did and would affect commerce, we must next

decide whether that effect must be adverse to satisfy the Hobbs

Act. The panel believed that it was bound by United States v. De

Parias, 805 F.2d 1447 (11th Cir. 1986), to require an adverse

effect on commerce under the Hobbs Act. See Kaplan, 133 F.3d

at 831. The De Parias opinion says at one point that one of the

requirements of the Hobbs Act is that the “coercion occur[] in such

a way as to affect adversely interstate commerce.” Id. at 1450

17
(emphasis added). We question whether the statement in the De

Parias opinion was indeed binding.19 But, even if it was, to the

extent that De Parias required an adverse effect, we now overrule

it.

The Hobbs Act punishes “whoever in any way or degree . .

. affects commerce . . . by robbery or extortion.” § 1951(a)

(emphasis added). “These words do not lend themselves to

restrictive interpretation.” United States v. Culbert, 435 U.S. 371,

373 (1978). No modifier of the verb “affect” is in the plain

language of the statute. See McNely v. Ocala Star-Banner Corp.,

99 F.3d 1068, 1073 (11th Cir. 1996) (“‘We must give effect to this

plain language unless there is good reason to believe Congress

intended the language to have some more restrictive meaning.’”)

(quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983)).

19
Neither De Parias nor the cases it cites directly presented the question now
before us: whether only adverse effects matter under the Hobbs Act. And, other
than the initial statement quoted above, De Parias speaks more generally of “an
effect on interstate commerce,” “a connection with interstate commerce,” or “a
nexus with interstate commerce.” De Parias, 805 F.2d at 1450, 1451. The panel
may have drawn the holding of De Parias too broadly.

18
The Act’s language is broad, and it is evidence that Congress

intended to protect commerce from any and all forms of effects,

whether they are direct or indirect, actual or potential, beneficial

or adverse.20 For courts to require the effect on commerce to be

adverse would significantly narrow the statute. See Culbert, 435

U.S. at 380 (“Our examination of the statutory language and the

legislative history of the Hobbs Act impels us to the conclusion

that Congress intended to make criminal all conduct within the

reach of the statutory language.”).

Other courts have refused to engraft the word “adversely”

onto the plain statutory language. See United States v. Bailey,

990 F.2d 119, 126 (4th Cir. 1993) (“Although the word ‘adverse’

has been loosely used in expressing the effect on interstate

commerce, such adverse effect is not an essential element of the

20
Consideration of decisions arising under other statutes with similar language
may inform our opinions sometimes. But, today’s decision rests directly on the facts
of this case and the language of this statute. To the extent that decisions applying
other statutes may differ, that difference seems to result from different facts, different
statutory language, different legislative history, different precedents or some
combination of these things. We think these differences render comparisons to
today’s decision unhelpful.

19
crime that must be proved by the prosecution in a Hobbs Act

case.”); see also United States v. Tormos-Vega, 959 F.2d 1103,

1113 (1st Cir. 1992) (stating that beneficial effect is sufficient);

United States v. Mattson, 671 F.2d 1020, 1024 (7th Cir. 1982)

(“Even a beneficial effect . . . is within the prohibition of the

statute.”). Although Kaplan has not pointed to cases from other

circuits, we recognize that some other circuits have written that an

adverse effect is an element of a Hobbs Act case. See

McLaughlin v. Anderson, 962 F.2d 187, 194 (2d Cir. 1992); United

States v. Snyder, 930 F.2d 1090, 1093 (5th Cir. 1991). But, we

are unpersuaded by the adverse-effects language in the

McLaughlin and Snyder opinions.21 Furthermore, like De Parias,

neither of those cases directly presented the question of whether

only an adverse effect on commerce will do; and neither opinion

applies an only-adverse-effects-matter requirement to decide the

case then before the court.

21
We do stress that the scope of the Hobbs Act is not unlimited. But, we, as
judges, cannot rewrite the statute to add the term “adverse.”

20
 Because we have determined that the effect on commerce

under the Hobbs Act need not be adverse, it is unnecessary for

us to characterize the effect on commerce in this case.22 Potential

and actual effects exist in this case, and that is all the Act

requires.

We see the federalism concerns involved in this case. We

do not wish to expand federal criminal jurisdiction to contexts that

the states are best positioned to address. And we stress that the

statutory language requires the prosecutor to prove a definite

connection with commerce in every Hobbs Act case. But the

Hobbs Act -- as Congress has written it and, therefore, as we

must apply it -- has a broad reach. Our duty is to apply the law,

as we understand it is, to the facts before us. And an examination

of the facts of this case, given the overall circumstances, shows

22
We note, however, that the jury instructions required a finding that the
extortion attempt “would have delayed, interrupted or adversely affected interstate
commerce.”

21
sufficient evidence to allow a jury to conclude properly that an

effect on commerce exists.23

Based on our review of the record, sufficient evidence was

presented to support the jury’s finding that Kaplan was guilty of

crimes covered by the Hobbs Act. Sufficient evidence shows

that Kaplan’s attempt and conspiracy to extort would have had

and did have at least a minimal effect on commerce. Therefore,

Kaplan’s convictions are AFFIRMED.

AFFIRMED.

BIRCH, Circuit Judge, dissenting, in which TJOFLAT, ANDERSON and
BARKETT, Circuit Judges, join:

23
Several theories on how the effect-on-commerce element may be established
generally have been advanced by the government in this case. But, the language
of the statute governs our result. We announce no sweeping theories today. The
effect-on-commerce question requires a fact-specific inquiry, see Staszcuk, 517
F.2d at 58 (stating that enforcement of Hobbs Act necessarily proceeds on a case-
by-case basis); and we base our decision on the particular facts with which we are
presented.

22
 I respectfully dissent. The majority’s holding will result in the

federalization of any crime involving extortion to acquire money. Plainly

stated, “[t]his is a case about federalism.”1 If we were to accept the

government’s position on this issue, the Hobbs Act would completely

subsume state extortion and robbery laws by creating a federal criminal

offense in each and every case in which the pay-off is at all likely to cross

state lines. Surely, Congress cannot have intended any such result.

The plain and unambiguous language of the statute draws a

distinction between extortion that affects commerce and extortion that

constitutes or produces commerce.2 Although Congress has the power to

1
The phrase belongs to Justice O'Connor, see Coleman v. Thompson, 501 U.S.
722, 726, 111 S. Ct. 2546, 2552, 115 L. Ed. 2d 640 (1991), but a recent decision of
our own court (which found federal jurisdiction under the Hobbs Act) raised the
same concerns and cautioned against interpreting the Act in a manner that would
“obliterate the distinction between what is national and what is local and create a
completely centralized government.” United States v. Paredes, 139 F.3d 840, 844
(11th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 572 (1998)(quoting United States
v. Lopez, 514 U.S. 549, 557, 115 S. Ct. 1624, 1628-29, 131 L. Ed. 2d 626 (1995)).
2
Two cases arising under the robbery prong of the Hobbs Act may help
demonstrate this distinction in cases involving individual victims. In United States
v. Flores, 855 F. Supp. 638 (S.D.N.Y. 1994), the defendant had assaulted two
victims as they entered their apartment and robbed them of $4000. After noting
the defendant's characterization of the event as a “garden variety” robbery, the
court found an affect on commerce because the money represented the proceeds of
the victims' flower business and was to have been deposited in a business
account. By contrast, in United States v. Quigley, 53 F.3d 909, 910 (8th Cir.
1995), the defendants spotted their victims walking along the road at night, offered
them a ride, and proceeded to rob them of all they had: “eighty cents and a near-
empty pouch of chewing tobacco.” The government unsuccessfully advanced a
number of theories to provide the required effect on commerce, including the fact

23
criminalize both types of extortion, the Hobbs Act addresses only the

former.

The most convincing argument that the majority’s sweeping

interpretation must be wrong is the fact that the government and the courts

have undertaken what is often a searching inquiry to find how the crime in

question affected the victim's ability to conduct business. More specifically,

in all the extortion cases available for examination, the courts have

searched for some such effect on commerce even though money, the most

common form of extortion proceeds, is uniquely likely to enter interstate

commerce. If establishing jurisdiction under the Hobbs Act were as easy as

showing a likelihood that the proceeds would travel in interstate commerce,

surely the government and the courts historically would not have gone to the

effort to establish alternative (and often tenuous) connections to commerce.

Finally, I note that in a similar line of authority that has developed in

the case law applying the analogous language of the federal arson statute

we have taken a different tack. That statute criminalizes the destruction of

“any building, vehicle, or other real or personal property used in interstate

that the victims were in the process of procuring beer. The court, however, did not
discuss the fact that the defendants could have moved or spent their ill-gotten
gains in interstate commerce and concluded that the government had not
established federal jurisdiction.

24
or foreign commerce or in any activity affecting interstate or foreign

commerce . . . .” 18 U.S.C. § 844(i) (emphasis added). In Russell v. United

States, 471 U.S. 858, 105 S. Ct. 2455, 85 L. Ed. 2d 829 (1985), the

Supreme Court held that the statute required the targeted property to have

some connection to business: “In sum, the legislative history suggests that

Congress at least intended to protect all business property, as well as some

additional property that might not fit that description [namely police stations

and churches], but perhaps not every private home.” Id. at 862, 105 S.Ct.

at 2457. In applying section 844(i) we have gone to lengths to connect the

destroyed property with interstate commerce and have held the line against

making every act of arson a federal crime. Compare United States v.

Grimes, 142 F.3d 1342 (11th Cir. 1998), cert. denied, ___ U.S. ___, 119

S.Ct. 840 (1999) (finding jurisdiction over arson involving commercial rental

properties) with United States v. Denalli, 73 F.3d 328 (11th Cir.) (per

curiam), modified by 90 F.3d 444 (11th Cir. 1996) (per curiam) (no

jurisdiction under section 844(i) for arson involving a private residence).

Since we have taken the required connection to commerce seriously in the

section 844(i) context, it is inconsistent for us to further dilute the

jurisdictional requirement under the Hobbs Act . . . and that is what the

25
majority opinion accomplishes today. The heretofore clearly marked

channel of the stream of commerce has been muddied which will likely

result in a flood of former state extortion cases into the already drowning

federal court system.

26