United States v. Capozzi

United States Court of Appeals
For the First Circuit

No. 00-1670

UNITED STATES OF AMERICA,

Appellee,

v.

DEREK CAPOZZI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Torruella, Circuit Judge,

Stapleton,* Senior Circuit Judge,

and Howard, Circuit Judge.

Patricia A. Garrity, with whom Joseph C. Laws, Jr., Federal
Public Defender, was on brief for appellant.
Steven L. Lane, United States Department of Justice, with whom
Michael J. Sullivan, United States Attorney, and Christopher F.
Bator, Assistant United States Attorney, were on brief, for
appellee.

October 6, 2003

________________
*Of the Third Circuit, sitting by designation.
 HOWARD, Circuit Judge. This case arises from defendant

Derek Capozzi's unlawful attempt to force a used car dealer to

refund the purchase price of a truck with which he was

dissatisfied. After a ten-day trial, a jury convicted Capozzi of

being a felon in possession of a firearm, see 18 U.S.C. §

922(g)(1), attempted extortion affecting interstate commerce, see

18 U.S.C. § 1951(a) (the "Hobbs Act"), and use of a firearm during

the attempted extortion, see 18 U.S.C. § 924(c). Capozzi

challenges his convictions on several grounds. We affirm.

I.

We set forth the facts underlying Capozzi's convictions

in the light most favorable to the verdict. See United States v.

Diaz, 300 F.3d 66, 69 (1st Cir. 2002). In January 1998, Capozzi

purchased a used Chevy Blazer ("truck") for $4,500 from Gardner

Park Auto Sales ("Gardner Park") in Peabody, Massachusetts.

Capozzi quickly came to believe that the truck was a lemon. On the

evening of February 17, 1998, Capozzi and his friend, Jason Stone,

left the truck at Gardner Park with a note telling Michael McGrath,

the owner of the dealership, that Capozzi wanted his money

returned. At the time, Capozzi was living approximately three

hundred yards from Gardner Park in Room #2 at the Charles Hotel

with his girlfriend, Erica Murphy. Stone and his companion,

Santina Luca, were staying with Capozzi and his girlfriend.

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 The next afternoon Capozzi and Stone, both armed,

returned to see McGrath. Capozzi, who was a convicted felon,

carried a revolver that he had purchased from Stone several months

earlier. Stone carried a knife that appeared to be a gun because

the handle looked like the butt of a revolver. After entering

McGrath's office, Stone waited by the door while Capozzi demanded

a refund of his money. McGrath refused because Capozzi had put a

large dent in the truck. Capozzi tried to bargain, telling McGrath

that he would accept $4,000 instead of $4,500. When McGrath again

refused, Capozzi unzipped his coat and showed McGrath the gun that

was tucked into his pants. McGrath still refused to return

Capozzi's money. Angered, Capozzi placed the barrel of the gun to

McGrath's head and screamed, "I'll f---- kill you if you don't give

me my money."

As the dispute turned violent, a business associate of

McGrath's, Carlo Fahkri, and his brother, John Fahkri, happened to

arrive at Gardner Park to see McGrath. They entered McGrath's

office and tried to defuse the situation. As the Fahkris attempted

to mediate, a telephone rang in another part of the building.

McGrath told Capozzi that he needed to answer the call and bolted

from the room. After escaping, McGrath called the police. Stone,

suspecting that McGrath would call the police, took the gun from

Capozzi and returned to the Charles Hotel, where he hid Capozzi's

gun and his knife. Shortly, the Peabody police arrived at Gardner

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Park and arrested Capozzi. Several minutes later, another officer

located Stone walking from the Charles Hotel toward Gardner Park

and arrested him. Because Stone's knife appeared to be a gun, the

witnesses on the scene incorrectly told the police that both Stone

and Capozzi were carrying guns.

At the time of the Gardner Park incident, authorities

were investigating whether Capozzi was involved in a bank robbery

in Beverly, Massachusetts. In due course, a federal grand jury

returned a five count indictment against Capozzi. The first three

counts (identified in the introduction) related to the attempted

extortion at Gardner Park; the other two involved the alleged bank

robbery. The district court severed the counts relating to the

attempted extortion and, following the denial of Capozzi's

suppression motion (which we discuss in greater detail infra), the

case proceeded to trial. As set forth above, a jury convicted

Capozzi of all three counts.

II.

Capozzi appeals his convictions alleging three errors.

He first challenges the district court's refusal to suppress

evidence of the gun used in the attempted extortion, arguing that

the search warrant under which the police seized the gun was

obtained without probable cause and in bad faith. Capozzi next

contends that the Hobbs Act count should have been dismissed

because application of the Act to Capozzi's conduct exceeds

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Congress' Commerce Clause authority. Finally, Capozzi argues that

even if the government could have proceeded with the Hobbs Act

prosecution, the district court nevertheless should have dismissed

the Hobbs Act count because the government failed to establish that

Capozzi's conduct interfered with interstate commerce.

A. The Suppression Ruling.

The district court agreed with Capozzi that the search

warrant which led to the discovery of the gun used in the

extortion attempt was issued without probable cause. Nonetheless,

the court declined to suppress the evidence of the gun, relying on

"the good faith exception" established in United States v. Leon,

468 U.S. 897 (1984). Capozzi contends the district court's Leon

ruling was erroneous. Applying de novo review (but accepting the

district court's factual findings absent a demonstration of clear

error), see United States v. Owens, 167 F.3d 739, 743 (1st Cir.

1999), we disagree.

We begin our explanation with a recitation of necessary

background. Immediately after the Peabody police arrested Capozzi

and Stone, the officers on the scene shared information with each

other about the crime. One officer told his colleagues that he

recently had responded to an emergency call from Capozzi's room at

the Charles Hotel. Based on this information, the police obtained

Capozzi's consent to search his room while he remained in custody.

With Erica Murphy and Santina Luca present, several Peabody

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officers searched the room for more than an hour but could not find

any weapons.1

The next day, February 19, 1998, Capozzi and Stone were

arraigned in the Peabody District Court. Murphy and Luca were

among those present at the arraignment. Later that day, while

walking his beat, Peabody Officer Daniel Murphy, who had been

involved in the searches of Capozzi's hotel room, saw Erica Murphy

and Santina Luca on the street near the Peabody District Court.

Officer Murphy recognized the women from the previous day and asked

them if Capozzi had made bail. One woman replied that they had

just come from the court and that Capozzi's bail had been set at

$50,000; the other stated that the next court date was set for

February 23, 1998.

That same afternoon, Sergeant Thomas Griffin of the Salem

Police Department received a telephone call from an informant. The

informant told Griffin that she had previously provided tips to

another Salem detective and that she had new information to report.

She reported that she had been present at the Peabody District

Court that morning where she overheard two women discussing a gun

and a knife hidden in a hotel room in Peabody. The informant

overheard the women say that the police had been unable to find the

1
Immediately prior to obtaining Capozzi's consent, the
officers conducted an initial unsuccessful search of the room with
only Murphy's permission. Shortly after that search began, Murphy
told the officers that it was not her room and therefore instructed
them to leave.

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weapons because they were wrapped in a sock. The informant

specified that the gun and knife were used in an assault on a

Peabody businessman. The informant remained anonymous.

After receiving this tip, Griffin called the Peabody

police to report the tip, but they took no immediate action.

Griffin also told Salem Detective Harry Rocheville about the

information he had received. Rocheville, in turn, relayed the tip

to F.B.I. Special Agent Gerald Mohan, who was investigating

Capozzi's possible involvement in the Beverly bank robbery.

While traveling to work on February 19, 1998,

Massachusetts State Police Trooper Robert Irwin learned from the

media that Capozzi and Stone had been arrested for the Gardner Park

incident. Capozzi was a suspect in two of Irwin's ongoing

investigations. Later that day, Irwin contacted Peabody Detective

Richard Robillard, who had been involved in investigating the

Gardner Park incident, to learn more about the attempted extortion.

Robillard told Irwin that Capozzi was suspected of having a gun,

but that searches of the Charles Hotel, Gardner Park, and the

surrounding area had failed to uncover it.

Irwin offered Robillard the services of the State Police

Dive Team for the next day to search a waterway located behind

Gardner Park. The dive team's search did not locate any weapons.

Officer Murphy was among those present at the dive search; he told

Irwin about his encounter the day before with Erica Murphy and

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Santina Luca. F.B.I. Agent Mohan was also present at the dive

search; he told Irwin that he had learned from Rocheville about the

anonymous tip in which two women at Capozzi's arraignment stated

that the gun used in the crime was hidden in a hotel room in

Peabody.

After the dive search, Irwin began to prepare a search

warrant affidavit based on the information that he had collected.

Before completing the affidavit, Irwin called Rocheville at the

Salem Police Department to learn more about the anonymous tip.

Rocheville described the substance of the informant's telephone

call.

Irwin prepared an affidavit to obtain a search warrant

for Capozzi's room at the Charles Hotel. The Irwin affidavit

described the crime and the unsuccessful search to which Capozzi

consented. It also described the fruitless searches of the areas

surrounding Gardner Park. Further, it reported the substance of

the informant's anonymous tip to the Salem Police and Officer

Murphy's conversation with Erica Murphy and Santina Luca in which

they told him that they were present at the Peabody District Court

for Capozzi's hearing. Finally, it stated that the door of

Capozzi's hotel room was locked on February 20th. As a result of

this information, Irwin offered his opinion that there was probable

cause to believe that the weapons used by Capozzi and Stone in the

attempted extortion were located in Room #2 at the Charles Hotel.

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 After drafting the affidavit, Irwin contacted Essex

County Assistant District Attorney Robert Bender, an experienced

appellate attorney. Irwin asked Bender if, based on the

information he had gathered, there was a basis for searching the

room. Bender told him that he had developed enough information to

conduct a search and should apply for a warrant. Irwin submitted

the affidavit and a warrant application to the Clerk Magistrate of

the Peabody District Court (the "magistrate"). The magistrate

issued the warrant.

Irwin, along with representatives of the Peabody Police,

conducted the search. The officers first found a knife inside a

Kleenex box and then found a revolver that matched the description

of the gun that Capozzi had used in the crime. The gun was found

inside the lining of a chair wrapped in a pair of boxer shorts.

Capozzi moved to suppress evidence of the gun, arguing

that the Irwin affidavit was insufficient to establish probable

cause for a warrant because it was based primarily on information

provided by an uncorroborated, anonymous informant. He also argued

that the Leon good faith exception did not apply because Irwin

intentionally or recklessly misstated material information in the

affidavit, and the affidavit was so lacking in the indicia of

probable cause that an objective officer would not reasonably rely

on it to obtain a warrant. After an evidentiary hearing, the

district court denied Capozzi's motion to suppress. The court

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agreed that Irwin's affidavit failed to establish probable cause

for the search because the police had insufficient corroboration of

the reliability of the anonymous tip. However, the court concluded

that the good faith exception applied because "given all the

circumstances under which he sought the warrant, Trooper Irwin's

action and his reliance on the warrant's validity were objectively

reasonable."

Because we regard the district court's Leon ruling as

sound but its probable cause ruling as more controversial, we

proceed directly to the district court's ruling that evidence of

the gun was admissible because Irwin obtained the warrant in good

faith. See Leon, 468 U.S. at 925 (holding that courts have

discretion to proceed directly to the good faith issue without

first addressing probable cause issue); Owens, 167 F.3d at 744-45

(same). In Leon, 468 U.S. at 922, the Supreme Court adopted an

exception to the usual rule that evidence seized in violation of

the Fourth Amendment must be excluded from trial. The Court

recognized that the purpose of this exclusionary rule is to deter

police misconduct; therefore, it declined to apply the rule in

circumstances where an officer acts in good faith to obtain a

warrant because suppression in such instances does not "logically

contribute to the deterrence of Fourth Amendment violations." Id.

at 921.

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 Yet, while Leon restricts the application of the

exclusionary rule, it does not eliminate it. See United States v.

Ricciardelli, 998 F.2d 8, 15 (1st Cir. 1993). Exclusion remains

the appropriate remedy in several circumstances, including (1)

where the magistrate is misled by information in an affidavit that

the affiant knew was false or would have known was false except for

a reckless disregard for the truth, or (2) where the affidavit is

so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable. See United States

v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001) (citing Leon, 468 U.S.

at 923). Capozzi claims that both of these situations are present

here. We disagree.

1. False Information.

Capozzi identifies four pieces of information that he

claims Irwin intentionally or recklessly omitted from or misstated

in the affidavit: (1) the affidavit omitted that the informant

claimed to have previously provided other tips to the Salem Police

Department; (2) the affidavit misstated that the informant told the

officer that a gun (rather than a gun and a knife) were in the

room; (3) the affidavit misstated that the informant reported that

the gun "is" hidden (rather than "was" hidden) in the hotel room;

and (4) the affidavit misstated the point in time when the police

locked Capozzi's hotel room door.

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 In its findings of fact after the evidentiary hearing,

the district court found that Irwin had prepared his affidavit by

collecting information from several officers under significant time

pressure and in an "unfamiliar search scenario." It found no

evidence that Irwin had acted intentionally or recklessly in making

any misstatements or omissions. These findings are not clearly

erroneous. At most, Irwin's omissions and misstatements reflect

negligence, mistake, or inattention to detail as he rushed to

prepare an affidavit in the midst of a developing investigation.

Mere negligence or inattention to detail in preparing an affidavit

does not deprive the government of the benefits of the Leon

exception. See Brunette, 256 F.3d at 20; Owens, 167 F.3d at 745.

Moreover, the omissions and mistakes identified by

Capozzi were not material to the magistrate's decision to issue a

warrant. See Owens, 167 F.3d at 745. Irwin's omission of the fact

that the informant stated that she had provided prior tips to the

police was an immaterial, indeed perhaps even a cautiously

appropriate, omission from the affidavit. Irwin had no information

to support the informant's claim of providing previous tips. If

such information had been included in the affidavit, it may have

influenced the magistrate to accord the informant unwarranted

credibility. See United States v. Jordan, 999 F.2d 11, 14 (1st

Cir. 1993)(noting that proof that confidential informant had

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provided past reliable information may be sufficient by itself to

establish reliability of informant's statement).

Irwin's omission of the informant's statement that a

knife would also be found in the hotel room was also immaterial.

The focus of the police's investigation had been on the search for

two guns, and Irwin's inclusion of the fact that a knife might also

be found in the room would not have changed the magistrate's

evaluation of the possibility that a gun might be present. In any

event, while it might have been preferable for Irwin to have

transcribed the tip exactly as he received it, any error can only

be regarded as an innocent mistake made under significant time

pressure. See p. 12 above.

The alleged misstatement concerning verb tense is a

criticism of the form rather than the substance of Irwin's

affidavit. Such technical criticism of the form of the affidavit

is insufficient to undermine its veracity. See Illinois v. Gates,

462 U.S. 213, 235 (1983) ("affidavits are normally drafted by

nonlawyers in the midst and haste of a criminal investigation")

(internal quotations omitted). Finally, the statement referring to

the locked hotel room door was not a misstatement at all. The

affidavit did not say, as Capozzi suggests, that the door was

locked immediately after Capozzi's arrest. Rather, it stated

accurately that the door was locked by the police on February 20,

1998.

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 2. Probable Cause.

Capozzi's other assertion is that the good faith

exception does not apply because, even though the magistrate issued

the warrant, an objectively reasonable officer would have realized

that the affidavit failed to establish probable cause. In support

of this assertion, Capozzi relies heavily on the fact that Irwin's

affidavit was partially informed by a hearsay tip from an anonymous

source.

Reliance on anonymous tips is "commonplace" and "a

necessary part of police work." United States v. Schaefer, 87 F.3d

562, 566 (1st Cir. 1996). Even when based on hearsay, such tips

are often "the stuff of search warrant affidavits." Jordan, 999

F.2d at 13-14. Nevertheless, for such a tip to serve as the

predicate for probable cause, the officer must attempt to

corroborate the informant's story under the totality of the

circumstances. See Gates, 462 U.S. at 238. The officer, need not,

however, entirely eliminate "the risk that an informant is lying or

in error." United States v. Barnard, 299 F.3d 90, 94 (1st Cir.

2002)(quoting United States v. Khounsavanh, 113 F.3d 279, 284 (1st

Cir. 1997)). Thus, to qualify for the good faith exception, Irwin

must have provided sufficient corroboration of the informant's tip

that an objectively reasonable officer would have relied on the tip

to apply for a warrant. See Malley v. Briggs, 475 U.S. 335, 345

(1986).

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 Several kinds of information can corroborate an

informant's anonymous tip: whether the affidavit supports the basis

of knowledge of the person providing the hearsay; whether the

informant's statements were self-authenticating; whether some of

the informant's statements were corroborated; and whether a law

enforcement professional included an assessment of the significance

of the facts relayed by the informant to the investigation. See

Barnard, 299 F.3d at 93. "None of these factors is indispensable";

the ultimate issue is whether the totality of the circumstances

establishes the credibility of the informant's story. United

States v. Zaya-Diaz, 95 F.3d 105, 111 (1st Cir. 1996).

Here, Trooper Irwin presented sufficient information for

an objectively reasonable officer to believe that the anonymous tip

had been adequately corroborated. Irwin learned from Officer

Murphy that the two women who were present at the initial search of

Capozzi's room at the Charles Hotel were also present at the

Peabody District Court for Capozzi's arraignment. Thus, Irwin

confirmed that individuals with first-hand knowledge concerning the

whereabouts of the weapons used in the crime were present at the

location where the informant stated that she had gathered her

information. In addition, the informant stated that a failed

police search had already been conducted on the hotel room. This

information about the prior, unsuccessful search was accurate and

not publicly available.

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 The informant's tip was also consistent with information

available to the police from other sources. The police had

substantial evidence from the initial crime scene investigation

that Stone had taken his and Capozzi's weapons and hidden them in

the hotel room. The police also knew that neither Stone nor

Capozzi could have retrieved the weapons because they were in

custody. See Barnard, 299 F.3d at 95 (noting that police

investigation which is consistent with a tip provides

corroboration). Considering this corroboration, it was objectively

reasonable for Irwin to rely on the informant's tip to apply for a

warrant to search Capozzi's room at the Charles Hotel.

Irwin's other conduct also supports his good faith in

seeking the warrant. See Ricciardelli, 998 F.2d at 15 (court

examines "all the attendant circumstances" in determining whether

officer acted in objective good faith in believing that there was

probable cause). Irwin's was not a "bare bones affidavit" which

provided the magistrate with only the suspicions and conclusions of

the officer and no underlying information. See United States v.

Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996). Irwin summarized in

detail virtually all of the information available to him, including

the investigation of the crime, the failed searches, the

conversation between Officer Murphy and Erica Murphy and Santina

Luca, and the substance of the anonymous tip. See United States v.

Diehl, 276 F.3d 32, 43 (1st Cir. 2002) (concluding that affidavit

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which was not "bare bone" supported good faith conclusion). Also,

before presenting the affidavit to the magistrate for approval,

Irwin sought a legal opinion from Assistant District Attorney

Bender that probable cause existed to search the hotel room. See

United States v. Tuter, 240 F.3d 1292, 1299-1300 (8th Cir. 2001)

(suggesting that contacting attorney for advice on the existence of

probable cause before seeking warrant evidences good faith).

In sum, the record shows that Irwin did not intentionally

or recklessly mislead the magistrate by filing a false affidavit,

and that he presented sufficient information for an objective

officer to believe that there was probable cause to search

Capozzi's hotel room. Accordingly, the district court correctly

admitted the gun pursuant to the Leon good faith exception.

B. The Hobbs Act and the Commerce Clause.

Capozzi's second appellate argument is a Commerce Clause

challenge to the Hobbs Act conviction. Capozzi failed to raise

this issue before the district court. Therefore, we review it only

for plain error. See United States v. Newton, 327 F.3d 17, 26 (1st

Cir. 2003). Under this standard, we will reverse the Hobbs Act

conviction on Commerce Clause grounds only if Capozzi can show (1)

an error, (2) that is plain, and (3) that affects substantial

rights. See United States v. Olano, 507 U.S. 725, 732 (1993).

Capozzi's claim falters on the first prong of this analysis because

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the Hobbs Act, as applied here, does not violate the Commerce

Clause.

The Hobbs Act prohibits extortion or attempted extortion

where such crime "in any way or degree, obstructs, delays or

affects commerce." 18 U.S.C. § 1951(a). The Hobbs Act's scope

extends to the limit of Congress' Commerce Clause authority. See

Stirone v. United States, 361 U.S. 212, 215 (1960); United States

v. DiGregorio, 605 F.2d 1184, 1190 (1st Cir. 1979). Because of the

statute's broad sweep, to prove a Hobbs Act violation, the

government must show only that the extortionate conduct created "a

realistic probability of a de minimis effect on interstate

commerce." United States v. Butt, 955 F.2d 77, 80 n.2 (1st Cir.

1992); see United States v. Devin, 918 F.2d 280, 293 (1st Cir.

1990); DiGregorio, 605 F.2d at 1190.

Capozzi contends that, in light of the Supreme Court's

Commerce Clause decisions in United States v. Lopez, 514 U.S. 549

(1995) and United States v. Morrison, 529 U.S. 598 (2000), the "de

minimis effect" on interstate commerce standard for establishing a

Hobbs Act violation is unconstitutional. We reject this

contention.

In Lopez, the Supreme Court addressed a Commerce Clause

challenge to the Gun Free School Zones Act, a law which prohibited

a person from possessing a gun while in a school zone. 514 U.S.

552-68. In declaring the statute unconstitutional, the Court

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identified three categories of conduct which Congress may regulate

under its Commerce Clause authority: (1) the use of channels of

interstate commerce; (2) the instrumentalities of interstate

commerce or persons or things in interstate commerce; and (3)

activities that substantially affect interstate commerce. Id. at

558-59. The Court held that the proper test for evaluating a

statute like the Gun Free School Zones Act, which neither regulated

commercial activity nor contained a jurisdictional element

requiring that the regulated activity be connected to interstate

commerce, is whether the statute "substantially affects" interstate

commerce. Id. at 559. Applying this test, the Court invalidated

the Act because the "possession of a gun in a local school zone is

in no sense an economic activity that might, through repetition

elsewhere, substantially affect any sort of interstate commerce."

Id. at 567.

Relying on the Lopez Court's "substantially affects"

language, Capozzi contends that the "de minimis effect" standard

for a Hobbs Act violation is no longer valid. In making this

argument, Capozzi overlooks a crucial distinction between the

statute at issue in Lopez and the Hobbs Act. In drafting the Hobbs

Act, Congress included a jurisdictional element which it failed to

include in the Gun Free School Zones Act. The Hobbs Act requires

the government to prove that the extortion or robbery be connected

to interstate commerce. 18 U.S.C. § 1951(a). Rather than applying

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to all robberies or extortions, the Hobbs Act applies to only that

specific subset of robberies or extortions that affects interstate

commerce.2 See United States v. Perrotta, 313 F.3d 33, 36 (2d Cir.

2002) (citing cases where robbery or extortion held not to affect

interstate commerce and thus not actionable under Hobbs Act).

Thus, the Hobbs Act "ensure[s], through case-by-case-inquiry, that

the [extortion or robbery] in question affects interstate

commerce." Lopez, 514 U.S. at 561.

In the Hobbs Act, Congress expressed its self-conscious

recognition of the limits on its Commerce Clause power by

restricting the statute's reach to conduct squarely within its

authority-- a recognition notably absent from Congress' enactment

of the Gun Free School Zones Act. Congress' inclusion of a

jurisdictional element in the Hobbs Act addresses the Lopez Court's

constitutional concern that congressional authority under the

Commerce Clause not become a "general police power of the sort

retained by the States." Lopez 514 U.S. at 567. Accordingly, the

2
To distinguish the constitutional infirmity present in the
Gun Free School Zones Act from statutes which contain a
jurisdictional element, the Lopez Court relied on its decision in
United States v. Bass, 404 U.S. 336 (1971), in which it rejected a
Commerce Clause challenge to a statute similar to the Hobbs Act.
Id. at 561-62. The statute at issue in Bass made it unlawful for
a felon to possess a firearm "in commerce or affecting commerce."
Id. at 562. This statute survived Commerce Clause scrutiny because
it contained a jurisdictional element "which might limit its reach
to a discrete set of firearm possessions that additionally have an
explicit connection with or effect on interstate commerce." Id. at
562. As discussed above, the Hobbs Act contains the same sort of
limitation.

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Lopez decision does not render the Hobbs Act's "de minimis effect"

on interstate commerce standard unconstitutional.3

Our rejection of Capozzi's Commerce Clause challenge to

the Hobbs Act is consistent with the decisions of several other

circuits which have rejected similar challenges. See, e.g., United

States v. Williams, -- F.3d --, 2003 WL 22038949, at *3 (4th Cir.

Aug. 29, 2003); United States v. Clausen, 328 F.3d 708, 710-11 (3d

Cir. 2003); United States v. Fabian, 312 F.3d 550, 554-55 (2d Cir.

2002); United States v. Lynch, 282 F.3d 1049, 1052 (9th Cir. 2002);

United States v. Malone, 222 F.3d 1286, 1294-95 (10th Cir. 2000);

United States v. Einfeldt, 138 F.3d 373, 379 (8th Cir. 1998);

United States v. Valenzeno, 123 F.3d 365, 368 (6th Cir. 1997);

United States v. Castleberry, 116 F.3d 1384, 1386-87 (11th Cir.

1997); United States v. Harrington, 108 F.3d 1460, 1465-66 (D.C.

Cir. 1997). Accordingly, we hold that the Hobbs Act's "de minimis

3
The same rationale distinguishes Morrison, the other case on
which Capozzi relies. In Morrison, the Court invalidated the civil
cause of action established by the Violence Against Women Act on
Commerce Clause grounds. 529 U.S. 607-619. The Court invalidated
the statute because it determined that Congress did not have the
power to regulate "non-economic, violent criminal conduct based
solely on that conduct's aggregate effect on interstate commerce."
Id. at 617. The Court again criticized Congress for failing to
include "a jurisdictional element establishing that the federal
cause of action is in pursuance of Congress' power to regulate
interstate commerce." Id. at 613. Significantly, the Court also
noted with approval that lower courts had rejected Commerce Clause
challenges to other provisions of the Violence Against Women Act
which contained jurisdictional elements. Id. at 613-14 n.5.

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effect" on interstate commerce standard was constitutionally

applied to Capozzi's conduct.

C. Sufficiency of Evidence to Sustain the Hobbs Act
Conviction.

Finally, Capozzi challenges the sufficiency of the

evidence underlying the Hobbs Act conviction. He asserts that the

government failed to meet its burden of establishing a nexus

between his conduct and interstate commerce. Specifically, he

asserts that his violent demand for reimbursement from Gardner Park

did not have even a "de minimis effect" on interstate commerce.

We review de novo a district court's determination that

the evidence was sufficient to submit the case to the jury. See

United States v. Otero-Mendez, 273 F.3d 46, 50-51 (1st Cir. 2001).

In doing so, we examine "all the evidence, direct and

circumstantial, in the light most favorable to the prosecution,

drawing all reasonable inferences consistent with the verdict, and

avoiding credibility judgments, to determine whether a rational

jury could have found the defendant guilty beyond a reasonable

doubt." United States v. Beckett, 321 F.3d 26, 33 (1st Cir. 2003).

The evidence adduced at trial showed that Gardner Park was a

business that bought cars from out-of-state. Capozzi, unhappy with

the truck that he had purchased from Gardner Park, threatened

violence in an attempt to extort McGrath, the owner of Gardner

Park, to reimburse him $4,000 for the truck. On these facts, the

jury reasonably could have concluded that if the extortion had been

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successful, Gardner Park's assets would have been depleted by

$4,000, at least until it could have resold Capozzi's truck to

another customer.

One common method for the government to establish the

required "de minimis effect" on interstate commerce is to show that

the defendant's activity "minimally depletes the assets of an

entity doing business in interstate commerce." United States v.

Nguyen, 246 F.3d 52, 54 (1st Cir. 2001). To establish a Hobbs Act

violation, the government need not show an actual deprivation of

assets, but only that a deprivation of the victim's assets would

have occurred had the defendant succeeded in the extortion. See

United States v. Kattar, 840 F.2d 118, 122 (1st Cir. 1988)

("Attempted extortion is also proscribed by [the Hobbs Act] so that

it is not material . . . whether the property was in fact obtained

by the defendant.").

Here, if Capozzi had successfully extorted McGrath into

giving him $4,000 in exchange for the return of the truck, Gardner

Park would have been at least temporarily deprived of the use of

the money that Capozzi initially paid for the truck. Such a

temporary deprivation of the assets of a company engaged in

interstate commerce satisfies the "de minimis effect" on interstate

commerce element required for a successful Hobbs Act prosecution.

See United States v. Stillo, 57 F.3d 553, 559 (7th Cir. 1995) ("the

temporary depletion of . . . assets until repayment and the risk of

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non-payment would be sufficient to satisfy the de minimis

interstate commerce requirement"); see also United States v. Lewis,

797 F.2d 358, 365 (7th Cir. 1986) ("Even a temporary loss of the

use of money constitutes a deprivation of property under [the Hobbs

Act]."); United States v. Lance, 536 F.2d 1065, 1068 (5th Cir.

1976)(under the Hobbs Act the "loss of the use of money, even

temporarily, must be considered a deprivation of property").

III.

For the reasons set forth above, we affirm the

convictions of defendant Derek Capozzi.

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