United States v. Parkes

05-1486-cr
United States v. Parkes

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

1 August Term, 2006
2
3 (Argued: November 13, 2006 Decided: August 15, 2007)
4
5 Docket No. 05-1486-cr
6
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8
9 UNITED STATES OF AMERICA,
10
11 Appellee,
12
13 -v.-
14
15 OTIS PARKES,
16
17 Defendant-Appellant.
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19 - - - - - - - - - - - - - - - - - - - -x
20

21 Before: JACOBS, Chief Judge, McLAUGHLIN and
22 CALABRESI, Circuit Judges.
23
24 Appeal from a judgment of conviction entered by the

25 United States District Court for the Southern District of

26 New York (Kaplan, J.). The principal question regards the

27 nature of the evidence required to satisfy the interstate

28 commerce element of the Hobbs Act, 18 U.S.C. § 1951.

29 The conviction is affirmed and the case is remanded for

30 re-sentencing.

1
 1 JAMES M. BRANDEN, Law Office of
2 James M. Branden, New York, New
3 York, for Defendant-Appellant.
4
5 RICHARD C. DADDARIO, Assistant
6 United States Attorney (Celeste
7 L. Koeleveld, Assistant United
8 States Attorney, on the brief),
9 for Michael J. Garcia, United
10 States Attorney for the Southern
11 District of New York, New York,
12 New York, for Appellee.
13
14

15 DENNIS JACOBS, Chief Judge:

16 Defendant-appellant Otis Parkes appeals from a judgment

17 entered in the United States District Court for the Southern

18 District of New York (Kaplan, J.), convicting him on

19 multiple counts arising out of his participation in a

20 botched robbery targeting drugs and drug proceeds, during

21 which the victim was shot and killed by one of Parkes’s two

22 coconspirators.

23 Parkes argues (I) that the evidence adduced to prove a

24 nexus with interstate commerce under the Hobbs Act, 18

25 U.S.C. § 1951(a), was insufficient, and that in any event

26 the district court abused its discretion by allowing the

27 government to reopen its case to adduce (some of) that

28 evidence; (II) that the evidence was insufficient to support

29 Pinkerton liability for the murder; (III) that the district

2
1 court abused its discretion by refusing to grant a new trial

2 based on newly discovered evidence that a cooperating

3 witness had plotted to kill another witness; and (IV) that

4 the prosecutor made prejudicial statements in summation.

5 We hold (contrary to the position argued by the

6 government) that the Hobbs Act requires the jury to find

7 that a robbery of drugs and drug proceeds affects interstate

8 commerce; but we conclude that sufficient evidence was

9 introduced as to the attempted robbery in this case. We

10 reject defendant-appellant’s remaining challenges, but

11 vacate and remand in order to allow the district court to

12 correct certain specified errors in the sentence

13 calculation.

14

15 Background

16 The Robbery. Viewed in the light most favorable to the

17 government,1 the evidence adduced at trial (the substance of

18 which stands unchallenged by Parkes) was as follows.

1
1 On a challenge to the sufficiency of the evidence,
2 “we view the evidence in the light most favorable to the
3 government, drawing all inferences in the government’s favor
4 and deferring to the jury’s assessments of the witnesses’
5 credibility.” United States v. Arena, 180 F.3d 380, 391 (2d
6 Cir. 1999) (internal quotation marks omitted).
3
1 In June 2003, Steven Young proposed to Parkes and Duane

2 Beaty that they rob a drug dealer, Ruben Medina. Beaty (who

3 became a cooperating witness) testified that Young

4 “explain[ed] to us how he knew a drug dealer [Medina] that

5 had money and drugs on the table selling out of a little

6 room, and he just had the stuff spread out on the table, and

7 it would be easy to go in and rob him and leave with the

8 proceeds.” Trial Tr. at 265 (Oct. 25, 2004). In the early

9 morning hours of June 17, 2003, Parkes, Beaty and Young met

10 in Parkes’s Jeep; Young confirmed that the other two were

11 “packing” guns. Trial Tr. at 272 (Oct. 25, 2004). Parkes

12 drove to Medina’s building, waited until someone came out,

13 and the three slipped in.

14 The door to Medina’s apartment was unlocked; the

15 robbers entered with guns drawn, and began binding the

16 people who had been sleeping in the various rooms. While

17 this was going on, Medina entered the apartment with his

18 girlfriend, Delilah Lugo. Young ordered Lugo into Medina’s

19 room with Parkes (where a clear plastic bag was put over her

20 head and a gun stuck in her face), but kept Medina in the

21 hallway with himself and Beaty.

22 While Beaty questioned Medina in the hall about the

4
1 drugs and money, Young struck one of the residents, causing

2 his head to bleed, and then brought him to Medina’s room

3 where Parkes restrained him with duct tape. Beaty testified

4 that he feared Young was getting “out of hand,” so he called

5 Young to stay with Medina while Beaty returned to Medina’s

6 room and broke the lock to the closet in which he suspected

7 the drugs and proceeds were hidden. Trial Tr. at 281, 282

8 (Oct. 25, 2004)

9 As Beaty was searching the closet, he heard Young

10 threatening to shoot Medina, followed by a gun shot. Beaty

11 ran to the hall, saw Medina shot and lying on his side, and

12 watched Young shoot Medina two more times in his back.

13 The robbers fled to the Jeep, and headed toward Beaty’s

14 apartment. Young, who was going elsewhere, got out to take

15 a cab. The police confronted Parkes and Beaty soon after

16 they arrived at Beaty’s place. One officer searched the

17 Jeep and alerted his partner that he found a gun; Parkes ran

18 off and Beaty was arrested. The police search of Parkes’s

19 Jeep yielded: (1) a loaded handgun; (2) a pair of gloves

20 with Parkes’s DNA on the inside and, on the outside, the

21 blood of the man Young had assaulted and Parkes had bound;

22 (3) a wallet containing Parkes’s identification; (4) a roll

5
1 of duct tape of the type used to bind the people in the

2 apartment; and (5) a cell phone which Medina had been

3 carrying on the night he was shot.

4 The Trial. The events of the robbery were recounted at

5 trial by Beaty, Medina’s girlfriend Lugo, police officers,

6 and residents of the apartment. Additionally, a friend of

7 Parkes testified he came to her place early in the morning

8 of June 17 and made a series of phone calls; in one call,

9 Parkes told someone to report the Jeep stolen. She also

10 testified that, weeks later, Parkes told her that he had

11 been involved in a shooting, had his Jeep searched by

12 police, and ran away when the police found a gun. A

13 detective testified that his search of Medina’s room yielded

14 $4,000 in a jacket pocket hanging in Medina’s closet, one

15 large bag of marijuana, and 58 smaller “nickel bags.”

16 After the government rested, Parkes moved for acquittal

17 under Federal Rule of Criminal Procedure 29 on the grounds

18 that the government had failed to satisfy the Hobbs Act’s

19 interstate commerce element, and had not, for the purpose of

20 Pinkerton liability, adduced evidence that Medina’s murder

21 was reasonably foreseeable. The district court denied

22 Parkes’s motion.

6
1 The issue of interstate commerce arose again during the

2 charge conference. Initially, the court’s proposed Hobbs

3 Act charge required the jury to find that the attempted

4 robbery “potentially affected interstate commerce.” Trial

5 Tr. at 480 (Oct. 26, 2004). But during the charge

6 conference, the district judge briefly changed course: he

7 said that he intended to remove that language from the

8 charge and substitute language instructing that “if the

9 object of the robbery is to obtain illegal drugs or money

10 earned from the sale of drugs, the requirement of an effect

11 on interstate commerce is satisfied.” Trial Tr. at 392

12 (Oct. 26, 2004). Such an instruction, if delivered, would

13 have obviated proof that the robbery affected interstate

14 commerce, and instead required only a finding that the

15 object of the robbery was drugs or their proceeds, on the

16 theory that such a robbery affects interstate commerce ipso

17 facto. But on the next morning, the court distributed a

18 redlined charge which retained the original language

19 requiring the jury to find that the robbery affected

20 interstate commerce, and not simply that the object of the

21 robbery was drugs or drug proceeds. The government,

22 objecting, argued that its presentation of evidence was

7
1 premised on the assumption that the jury would not need to

2 affirmatively find that the robbery affected interstate

3 commerce, but rather would only have to find that the target

4 of the robbery was drugs or proceeds. The judge overruled

5 the objection, but allowed the government to reopen its case

6 (over defense objection) to supplement the record.

7 The government called an experienced government

8 investigator who testified (inter alia) that: marijuana “is

9 almost exclusively trucked into the United States,

10 predominantly through Mexico”; “[v]ery little” marijuana is

11 grown in New York; and approximately five percent of the

12 arrests the investigator made in the Bronx were of out-of-

13 state purchasers of marijuana. Trial Tr. at 408-16 (Oct.

14 26, 2004). On cross examination, the investigator conceded

15 that he did not know the origin of the marijuana in Medina’s

16 room, and that marijuana can be grown indoors and outdoors

17 in New York State.

18 Consistent with the court’s final ruling, the jury was

19 instructed that it had to find that the robbery affected

20 interstate commerce. Parkes was convicted on all counts.

21 The district court denied Parkes’s post-verdict Rule 29

22 motion for acquittal on the ground that the evidence was

8
1 insufficient to satisfy the interstate commerce element of

2 the Hobbs Act. The court also denied Parkes’s Rule 33

3 motion for a new trial, which was premised on his assertion

4 that the prosecutor had misstated the law to the jury in

5 summation by stating that “[d]rug dealing affects interstate

6 commerce” and “robberies that seek drugs and drug money do

7 so as well.” Trial Tr. at 439-40 (Oct. 25, 2004). On

8 February 25, 2005, the district court sentenced Parkes to

9 life imprisonment.

10 Nearly seven months later, the government notified

11 Parkes that it had recently learned that, before Duane Beaty

12 cooperated with the government, he had taken steps to have a

13 witness in this case killed. Parkes promptly filed a second

14 Rule 33 motion, which was also denied by the district court.

15

16 I

17 Parkes challenges the sufficiency of the evidence to

18 prove the Hobbs Act’s interstate commerce element. “A

19 defendant challenging the sufficiency of the evidence bears

20 a heavy burden . . . .” United States v. Pipola, 83 F.3d

21 556, 564 (2d Cir. 1996) (citing Glasser v. United States,

22 315 U.S. 60, 80 (1942)); see also United States v.

9
1 Giovanelli, 464 F.3d 346, 349 (2d Cir. 2006) (per curiam).

2 On a sufficiency challenge, “we view the evidence in the

3 light most favorable to the government, drawing all

4 inferences in the government’s favor and deferring to the

5 jury’s assessments of the witnesses’ credibility.” United

6 States v. Arena, 180 F.3d 380, 391 (2d Cir. 1999) (internal

7 quotation marks omitted). We will sustain the jury’s

8 verdict so long as “any rational trier of fact could have

9 found the essential elements of the crime beyond a

10 reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

11 (1979) (emphasis in original); see also United States v.

12 Schwarz, 283 F.3d 76, 105 (2d Cir. 2002).

13 As Parkes demonstrates, there was no particularized

14 evidence as to the interstate nature (vel non) of Medina’s

15 drug-dealing business: i.e. the origin of his marijuana, his

16 suppliers, the route and instrumentality of delivery to

17 Medina, his buyers,2 or his use of the proceeds from drug

18 sales. In testimony introduced by the government to prove

19 the interstate nature of drug dealing generally, the witness

20 (a law enforcement officer) acknowledged that marijuana is

2
1 There was one limited exception--one of Medina’s
2 roommates testified that he occasionally purchased marijuana
3 from Medina.
10
1 grown within New York State, and that ninety-five percent of

2 the drug arrests he made in the Bronx were of New York State

3 residents. Parkes argues therefore that evidence that

4 Medina was “a local, part-time marijuana dealer” is

5 insufficient to support Hobbs Act liability.

6 Accordingly, this sufficiency challenge under the Hobbs

7 Act squarely presents a predicate question: whether evidence

8 that the target of a robbery was drugs or their proceeds is

9 sufficient as a matter of law to prove the requisite nexus

10 with interstate commerce. If (as the government asserts) a

11 robbery targeting drugs or their proceeds affects interstate

12 commerce as a matter of law, then no evidence of an effect

13 on interstate commerce would have been necessary: evidence

14 that the target of the robbery was drugs or proceeds would

15 be enough. Because it is uncontested on appeal that the

16 object was to rob marijuana and proceeds, Parks’s challenge

17 would plainly fail under such a per se rule, and we would

18 have no need to consider the record evidence of an

19 interstate effect. But if the Hobbs Act does require proof

20 of an effect on interstate commerce--that is, if a robbery

21 does not affect interstate commerce as a matter of law

22 merely because drugs or proceeds were its target--then we

11
1 must consider whether the limited evidence adduced here was

2 sufficient to support Parkes’s Hobbs Act conviction.

3

4 A

5 The Constitution “require[s] criminal convictions to

6 rest upon a jury determination that the defendant is guilty

7 of every element of the crime with which he is charged,

8 beyond a reasonable doubt.” United States v. Gaudin, 515

9 U.S. 506, 509-10 (1995); see also id. at 518-19 (describing

10 the “uniform general understanding . . . that the Fifth and

11 Sixth Amendments require conviction by a jury of all

12 elements of the crime” (emphasis in original)); Sullivan v.

13 Louisiana, 508 U.S. 275, 277-78 (1993) (“The prosecution

14 bears the burden of proving all elements of the offense

15 charged, and must persuade the factfinder beyond a

16 reasonable doubt of the facts necessary to establish each of

17 those elements.” (citations and internal quotation marks

18 omitted)).

19 In pertinent part, the Hobbs Act provides for criminal

20 penalties for anyone who “in any way or degree obstructs,

12
1 delays, or affects commerce3 or the movement of any article

2 or commodity in commerce, by robbery . . . or attempts or

3 conspires so to do.”4 18 U.S.C. § 1951(a). Proving an

4 effect on interstate commerce is thus an element of a Hobbs

5 Act offense, which must be proven beyond a reasonable doubt

6 to a jury. See United States v. Wilkerson, 361 F.3d 717,

7 726 (2d Cir. 2004). “In a Hobbs Act prosecution, proof that

8 commerce was affected is critical since the Federal

9 Government’s jurisdiction of this crime rests only on that

10 interference.” United States v. Elias, 285 F.3d 183, 188

11 (2d Cir. 2002) (internal quotation marks and emendations

12 omitted). “There is nothing more crucial, yet so strikingly

13 obvious, as the need to prove the jurisdictional element of

14 a crime.” United States v. Leslie, 103 F.3d 1093, 1103 (2d

15 Cir. 1997).

16 Whether a robbery affects interstate commerce is a

3
1 The Hobbs Act defines “commerce” as: “all commerce
2 between any point in a State, Territory, Possession, or the
3 District of Columbia and any point outside thereof; all
4 commerce between points within the same State through any
5 place outside such State; and all other commerce over which
6 the United States has jurisdiction.” 18 U.S.C. § 1951(b).
4
1 For simplicity’s sake, we refer to this element as
2 requiring an effect on interstate commerce, because conduct
3 that “obstructs” or “delays” commerce necessarily “affects”
4 it.
13
1 mixed question of fact and law: fact insofar as the jury

2 must determine what the robbery targeted, law insofar as it

3 must determine whether the theft of the targeted items

4 affected (or would have affected) interstate commerce.

5 In United States v. Gaudin, the Supreme Court held that

6 all elements of a crime, including those involving mixed

7 questions of law and fact, must be decided by a jury. See

8 515 U.S. at 513. Gaudin was charged with making materially

9 false statements on federal loan documents submitted to the

10 U.S. Department of Housing and Urban Development (“HUD”).

11 Id. at 508. At trial, the district court instructed the

12 jury that, as a matter of law, the statements at issue were

13 material. Id. The Supreme Court concluded that materiality

14 was a mixed question of law and fact because (factually) the

15 jury had to determine what was said and what bearing it had

16 on HUD’s loan decision, and then (legally) whether that

17 statement was “material” insofar as it had a tendency to

18 influence that decision. See id. at 512. The Court held

19 that “the jury’s constitutional responsibility is not merely

20 to determine the facts, but to apply the law to those facts

21 and draw the ultimate conclusion of guilt or innocence.”

22 Id. at 514. Accordingly, the Court ruled that the district

14
1 court infringed Gaudin’s constitutional “right to have a

2 jury determine, beyond a reasonable doubt, his guilt of

3 every element of the crime with which he is charged.” Id.

4 at 522-23.

5 Gaudin undid Second Circuit precedent that treated the

6 interstate commerce element of the Hobbs Act as a matter of

7 law for the judge, as we recognized in United States v.

8 Vasquez, 267 F.3d 79, 89 (2d Cir. 2001). Vasquez reviewed

9 (for plain error) a jury charge regarding a Violent Crimes

10 in Aid of Racketeering (“VCAR”) offense, 18 U.S.C. § 1959.

11 267 F.3d at 86-87. Like the Hobbs Act, the VCAR statute

12 contains a jurisdictional element requiring proof that the

13 prohibited conduct “affect[] interstate . . . commerce.” 18

14 U.S.C. § 1959(b)(2). The district court had instructed the

15 jury that drug trafficking affects interstate commerce as a

16 matter of law. 267 F.3d at 86. On appeal, we observed that

17 this instruction “removed from the jury at least a portion

18 of the jurisdictional element of the VCAR offenses,” id. at

19 88, so that under Gaudin (even on plain error review) the

20 instruction that drug dealing affects interstate commerce as

21 a matter of law might “not pass muster.” Id. at 89. (The

22 Constitutionality of the instruction was not categorically

15
1 decided because Vasquez’s conviction was upheld on other

2 grounds.5 ) Vasquez observed that Gaudin directly conflicted

3 with Circuit case law, citing as one example United States

4 v. Calder, 641 F.2d 76 (2d Cir. 1981), which Vasquez

5 described as having held that “in a Hobbs Act case, ‘[i]t

6 was for the court to determine as a matter of law the

7 jurisdictional question of whether the alleged conduct

8 affected interstate commerce.’” Vasquez, 267 F.3d at 89

9 (quoting Calder, 641 F.2d at 78). Vasquez thus considered

10 that this aspect of Calder’s holding was abrogated by

11 Gaudin. Id.

12 After Gaudin and Vasquez, it appeared settled that it

13 was for the jury alone to weigh the interstate commerce

14 element of the Hobbs Act. But in United States v. Fabian,

15 this Court held, as a matter of law, that “loan sharking and

5
1 After reciting, at length, other portions in the
2 charge, we concluded that “[w]hen examined in its entirety,
3 the jury charge stated several times that it was for the
4 jury to find whether the interstate/foreign commerce element
5 had been proven by the government.” Vasquez, 267 F.3d at
6 89. As to the particular instruction discussed in text, the
7 Court stated that while it may have had “concerns” with the
8 propriety of that charge, “Vasquez’s claim fails because he
9 cannot satisfy the fourth prong of the plain error test,
10 that the error affected the fairness, integrity, or public
11 reputation of the judicial proceedings.” Id. at 89-90
12 (internal quotation marks and emendations omitted).
16
1 drug proceeds affect interstate commerce.” 312 F.3d 550,

2 555 (2d Cir. 2002). Fabian was convicted under the Hobbs

3 Act for his participation in two robberies: the first

4 targeted an assumed loan shark; the second, $300,000 in drug

5 proceeds believed to have been stolen from Miami drug

6 dealers. Id. at 553. Fabian argued on appeal that the

7 district court erroneously instructed the jury that

8 interstate commerce was affected as a matter of law by such

9 offenses, and that evidence on the point was insufficient.

10 Id. at 553-58. In affirming, we rejected both arguments on

11 the ground that the interstate commerce element of the Hobbs

12 Act was satisfied as a matter of law by proof that the

13 target was the proceeds of drug or loan sharking activities,

14 id. at 557; for that proposition, we cited to United States

15 v. Genao, 79 F.3d 1333, 1336 (2d Cir. 1996). 312 F.3d at

16 555.

17 Genao had rejected a challenge to the constitutionality

18 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et

19 seq., concluding that “specific [congressional] findings

20 that local narcotics activity has a substantial effect on

21 interstate commerce” rendered the CSA constitutional even as

17
1 applied to purely intrastate drug crimes.6 Genao, 79 F.3d

6
1 In the CSA, at 21 U.S.C. § 801, Congress set forth
2 its findings that both inter- and intrastate drug dealing
3 affect interstate commerce:
4
5 (3) A major portion of the traffic in controlled
6 substances flows through interstate and foreign
7 commerce. Incidents of the traffic which are not
8 an integral part of the interstate or foreign
9 flow, such as manufacture, local distribution, and
10 possession, nonetheless have a substantial and
11 direct effect upon interstate commerce because--
12
13 (A) after manufacture, many controlled
14 substances are transported in interstate
15 commerce,
16 (B) controlled substances distributed locally
17 usually have been transported in interstate
18 commerce immediately before their
19 distribution, and
20 (C) controlled substances possessed commonly
21 flow through interstate commerce immediately
22 prior to such possession.
23 (4) Local distribution and possession of
24 controlled substances contribute to swelling
25 the interstate traffic in such substances.
26 (5) Controlled substances manufactured and
27 distributed intrastate cannot be
28 differentiated from controlled substances
29 manufactured and distributed interstate. Thus,
30 it is not feasible to distinguish, in terms of
31 controls, between controlled substances
32 manufactured and distributed interstate and
33 controlled substances manufactured and
34 distributed intrastate.
35 (6) Federal control of the intrastate
36 incidents of the traffic in controlled
37 substances is essential to the effective
38 control of the interstate incidents of such
39 traffic.
18
1 at 1337. The Fabian Court incorporated the CSA findings

2 into our Hobbs Act jurisprudence and held that these

3 congressional findings rendered robberies that target drugs

4 or proceeds inherently “within the jurisdiction of the Hobbs

5 Act.” 312 F.3d at 555. From the premise that “drug

6 proceeds affect interstate commerce,” Fabian deduced that

7 when the intended target of a robbery is drug proceeds, the

8 Hobbs Act’s interstate commerce element is satisfied as a

9 matter of law. Id. at 555-56.

10 The government now urges us to follow Fabian, which it

11 argues has been reinforced by the Supreme Court’s decision

12 in Gonzales v. Raich, 545 U.S. 1 (2005). Raich upheld the

13 CSA against an as-applied attack to the criminalization of

14 the intrastate cultivation and use of marijuana, and

15 validated congressional findings (in the CSA) that all drug

16 dealing--even if purely intrastate--affects interstate

17 commerce. Id. at 22. The Court affirmed Congress’s power

18 to regulate such “purely local activities that are part of

19 an economic class of activities that have a substantial

20 effect on interstate commerce,” id. at 17 (internal

1
2 21 U.S.C. § 801.
19
1 quotation marks omitted); it “ha[d] no difficulty concluding

2 that Congress had a rational basis for believing that

3 failure to regulate the intrastate manufacture and

4 possession of marijuana would leave a gaping hole in the

5 CSA,” id. at 22.

6 We now reject the proposition--urged by the government

7 here and previously accepted in Fabian--that findings

8 recited by Congress in the CSA, dispense with the need for a

9 jury finding that each element of the Hobbs Act has been

10 proven beyond a reasonable doubt. This proposition

11 conflates distinct inquiries. Under the CSA, an effect on

12 interstate commerce is not an element; so the inquiry for

13 the Court was the sufficiency of findings by Congress to

14 support that legislative act. Under the Hobbs Act, an

15 effect on interstate commerce is an element of the offense;

16 so the inquiry for this Court is the sufficiency of evidence

17 to support a jury finding on that point.

18 Subsequent to Fabian, the Supreme Court has sharpened

19 our focus on the separate consideration of each element that

20 composes an offense. See, e.g., United States v. Booker,

21 543 U.S. 220, 230 (2005). Congressional findings cannot

22 substitute for proof beyond a reasonable doubt. See United

20
1 States v. Chance, 306 F.3d 356, 377-78 (6th Cir. 2002)

2 (rejecting the proposition that “the prosecution is relieved

3 from proving an essential element of [a Hobbs Act] offense

4 by proof beyond a reasonable doubt where Congress has made

5 findings of fact concerning the area regulated”); United

6 States v. Peterson, 236 F.3d 848, 855 (7th Cir. 2001)

7 (observing that “the government is conflating its burden of

8 proof under two distinct statutory schemes--the Controlled

9 Substances Act . . . and the Hobbs Act,” and holding that

10 the “specific findings” in the CSA cannot excuse proof of an

11 effect on interstate commerce in a Hobbs Act prosecution

12 (internal citations omitted)); United States v. Gomez, No.

13 99 Cr. 740, 2005 WL 1529701, at *9 (S.D.N.Y. June 28, 2005)

14 (McKenna, J.) (“Nothing in [Second Circuit case law]

15 supports the view that the 21 U.S.C. § 801 findings have

16 replaced the traditional Hobbs Act requirement that an

17 effect [on interstate commerce] (however minimal or even

18 potential) be proved.”); see also United States v. Balsam,

19 203 F.3d 72, 89 (1st Cir. 2000) (citing Gaudin for the

20 proposition that the jury instruction that, “as a matter of

21 law[,] the businesses at issue in this case were engaged in

22 interstate commerce” was erroneous because it violated the

21
1 defendant’s constitutional “right to have a jury determine,

2 beyond a reasonable doubt, his guilt of every element of the

3 crime with which he is charged” (internal quotation marks

4 omitted)). To the extent that Fabian conflicts with this

5 holding, it is no longer good law.7

6 The parties contest the propriety of the jury

7 instructions given here. In light of the discussion above,

8 we conclude that the district court properly refused the

9 government’s request to instruct the jury that “if the

10 object of the robbery is to obtain illegal drugs or money

11 earned from the sale of drugs, the requirement of an effect

12 on interstate commerce is satisfied.” Trial Tr. at 382 (Oct.

13 25, 2004). That instruction would have impermissibly

14 violated Parkes’s “right to have a jury determine, beyond a

15 reasonable doubt, his guilt of every element of the crime

16 with which he is charged.” Gaudin, 515 U.S. at 522-23. The

17 instruction which the district court delivered properly

18 respected that right, because it allowed the jury to pass

7
1 Prior to filing, we have circulated this opinion to
2 all active members of this court, and received no objection.
3 See, e.g., United States v. Crosby, 397 F.3d 103, 105 n.1
4 (2d Cir. 2005); Jacobson v. Fireman’s Fund Ins. Co., 111
5 F.3d 261, 268 n.9 (2d Cir. 1997). We refer to this process
6 as a “mini-en banc.” See Michel v. I.N.S., 206 F.3d 253,
7 268 (2d Cir. 2000) (Cabranes, J., concurring).
22
1 upon the Hobbs Act’s interstate commerce element: “for a

2 robbery to be punishable under federal law, the government

3 must show that if the robbery occurred, interstate commerce

4 would have been affected in some way[,] even if the effect

5 would have been slight.” Trial Tr. at 479 (Oct. 26, 2004).

6 Since we conclude that the Hobbs Act requires the jury

7 to determine, beyond a reasonable doubt, whether the conduct

8 affected, or would have affected, interstate commerce, we

9 must consider whether the evidence adduced here was

10 sufficient to support that finding.

11

12 B

13 The Hobbs Act prohibits robberies that affect

14 interstate commerce “in any way or degree,” 18 U.S.C. §

15 1951(a); so the required showing of an effect on interstate

16 commerce is de minimis. See United States v. Arena, 180

17 F.3d 380, 389 (2d Cir. 1999); United States v. Silverio, 335

18 F.3d 183, 186 (2d Cir. 2003) (per curiam); United States v.

19 Augello, 451 F.2d 1167, 1169-70 (2d Cir. 1971). “The

20 jurisdictional requirement of the Hobbs Act may be satisfied

21 by a showing of a very slight effect on interstate commerce.

22 Even a potential or subtle effect on commerce will suffice.”

23
1 United States v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981)

2 (internal citation omitted); see also United States v.

3 Jones, 30 F.3d 276, 284-85 (2d Cir. 1994) (“Sufficient proof

4 to support a violation of the [Hobbs] Act has been presented

5 if the robbery . . . ‘in any way or degree,’ affects

6 commerce, even though the effect is not immediate or direct

7 or significant, but instead is postponed, indirect and

8 slight.” (quoting 18 U.S.C. § 1951(a))).8

9 The limited evidence adduced at Parkes’s trial

10 sufficiently supported the jury’s conclusion that the

11 attempted robbery of Medina (described by Parkes as “a

12 local, part-time marijuana dealer,”) would have affected

13 interstate commerce.9 As Beaty testified, Parkes and the

14 others intended to enter the dealer’s place of business, “a

8
1 We have observed that the reach of the Hobbs Act is
2 “coextensive with that of the Commerce Clause of the United
3 States Constitution.” United States v. Elias, 285 F.3d 183,
4 188 (2d Cir. 2002) (citing Stirone v. United States, 361
5 U.S. 212, 215 (1960); United States v. Leslie, 103 F.3d
6 1093, 1101 (2d Cir. 1997)). As discussed in text, this
7 means only that a de minimis showing of an effect on
8 interstate commerce is sufficient to satisfy this element;
9 it does not obviate the need for some showing.
9
1 Because we conclude that the evidence concerning
2 Medina’s marijuana dealing was sufficient to support
3 Parkes’s Hobbs Act conviction, we need not address his
4 arguments regarding Delilah Lugo’s testimony that Medina
5 also sold cocaine.
24
1 little room,” and rob the inventory and proceeds “spread out

2 on the table”--a small but going enterprise. Trial Tr. at

3 265 (Oct. 25, 2004). The police search of Medina’s room

4 yielded one large bag containing marijuana, 58 smaller

5 “nickel bags,” and $4,000 in cash. Moreover, an experienced

6 narcotics investigator testified that marijuana “is almost

7 exclusively trucked into the United States, predominantly

8 through Mexico” and that “[v]ery little” marijuana is grown

9 in New York.10 Trial Tr. at 408-16 (Oct. 26, 2004) . (As

10 discussed in Part I.C, infra, reopening to admit this

11 evidence was within the district court’s discretion.) In

12 sum, a reasonable juror, hearing this evidence, could have

13 found that the attempted robbery of Medina’s marijuana or

14 proceeds would have affected interstate commerce “in any way

15 or degree.”11 18 U.S.C. § 1951(a).

16

10
1 It may well be that a rational jury could conclude
2 that the interstate commerce element is satisfied by proof
3 that a robbery targeted drugs or proceeds of a drug business
4 that is purely intrastate; but we need not decide that
5 today.
11
1 The required evidence of an effect need not take any
2 particular form or be offered in any particular quantum--
3 direct, indirect, or circumstantial evidence could suffice.
4 It is a case-by-case inquiry.
25
1 C

2 Parkes claims that the district court abused its

3 discretion by granting the government’s motion to reopen its

4 case to present the testimony of an investigator regarding

5 the general nature of the drug trade. “[E]ven after a

6 defendant moves under Federal Rule of Criminal Procedure 29

7 for acquittal, a district judge retains wide discretion to

8 allow the government to re-open its case to correct errors

9 or [if] some other compelling circumstance justifies a

10 reopening and no substantial prejudice will occur.” United

11 States v. Leslie, 103 F.3d 1093, 1104 (2d Cir. 1997)

12 (internal quotation marks omitted); cf. United States v.

13 Suarez-Rosario, 237 F.3d 1164, 1167 (9th Cir. 2001) (“One

14 purpose of Rule 29 motions is to alert the court to omitted

15 proof so that, if it so chooses, it can allow the government

16 to submit additional evidence.”).

17 In Leslie, we validated the district court’s decision

18 to allow the government to reopen its case in order to

19 establish a nexus with interstate commerce. 103 F.3d at

20 1104-05. We observed that “the interstate commerce element

21 of a criminal statute is . . . a jurisdictional

22 prerequisite,” and held that “a district court may allow the

26
1 government to reopen its case to establish this

2 jurisdictional predicate.” Id. at 1104.

3 Here, the district court’s decision to change the jury

4 charge, which (according to the government) necessitated

5 additional proof to establish the jurisdictional predicate,

6 was a sufficiently compelling circumstance. Moreover,

7 Parkes was not prejudiced by the presentation of this

8 evidence upon reopening, rather than at some earlier point.

9

10 II

11 Parkes asserts that there was insufficient evidence to

12 support Pinkerton liability. The principles that guided our

13 review of Parkes’s sufficiency challenge to his Hobbs Act

14 convictions apply here--Parkes bears the heavy burden of

15 demonstrating that no rational trier of fact could have

16 concluded that Parkes bore responsibility for Medina’s death

17 under a Pinkerton theory of liability. See United States v.

18 Schwarz, 283 F.3d 76, 105 (2d Cir. 2002).

19 Under Pinkerton v. United States, 328 U.S. 640 (1946),

20 “a defendant who does not directly commit a substantive

21 offense may nevertheless be liable if the commission of the

22 offense by a co-conspirator in furtherance of the conspiracy

27
1 was reasonably foreseeable to the defendant as a consequence

2 of their criminal agreement.” Cephas v. Nash, 328 F.3d 98,

3 101 n.3 (2d Cir. 2003) (citing Pinkerton, 328 U.S. at 646-

4 48). Parkes does not dispute that the murder was committed

5 in furtherance of the conspiracy, so we need consider only

6 whether sufficient evidence supports the jury’s conclusion

7 that it was reasonably foreseeable.

8 An offense by a co-conspirator is deemed to be

9 reasonably foreseeable if it is “a necessary or natural

10 consequence of the unlawful agreement.” Pinkerton, 328 U.S.

11 at 648. Parkes claims that Medina’s murder was not a

12 necessary or natural consequence of the conspiracy to rob

13 Medina, because the conspirators supposed it to be an “easy”

14 robbery. Trial Tr. at 265 (Oct. 25, 2004). We disagree.

15 Parkes and the others entered Medina’s apartment before

16 dawn, with pistols drawn, and (variously) kicked in doors,

17 rounded up and physically assaulted residents (including

18 placing a plastic bag over the head of one), and bound them

19 with duct tape. The death of a victim is a natural

20 consequence of a robbery which is premised on the use of

21 overmastering force and violent armed confrontation. As the

22 district court observed at sentencing:

28
1 [This is] not a situation where a couple of kids
2 run into a store to run out with a toaster or
3 something . . . and then someone loses his temper,
4 picks up something and kills somebody. This is
5 just not what happened here. You guys went there
6 armed and ready for trouble, and it happened, and
7 somebody got killed . . . .
8
9 Sent’g. Tr. at 32 (Feb. 25, 2005).

10 Viewing the evidence in the light most favorable to the

11 government and drawing all inferences in the government’s

12 favor, we conclude that the evidence was sufficient to

13 support the jury’s conclusion that Medina’s murder was a

14 natural consequence of the conspiracy to rob him.

15

16 III

17 Parkes argues that the district court abused its

18 discretion by refusing to grant a new trial based on newly

19 discovered evidence that cooperating witness Duane Beaty

20 took steps to kill another witness before he was enlisted by

21 the government. Rule 33(a) of the Federal Rules of Criminal

22 Procedure permits the district court to “vacate any judgment

23 and grant a new trial if the interest of justice so

24 requires.” The grant of a Rule 33 motion requires “a real

25 concern that an innocent person may have been convicted.”

26 United States v. Ferguson, 246 F.3d 129, 134 (2d. Cir. 2001)

29
1 (internal quotation marks omitted). This Court reviews a

2 district court’s denial of a Rule 33 motion only for abuse

3 of discretion. United States v. Snype, 441 F.3d 119, 140

4 (2d Cir. 2006).

5 Although Parkes contends that Beaty perjured himself by

6 not admitting his plot to kill a witness, Parkes does not

7 point to any perjurious testimony. Cf. United States v.

8 Gambino, 59 F.3d 353, 364-65 (2d Cir. 1995) (finding that

9 omissions and inconsistencies did not necessarily constitute

10 perjury). As defense counsel stated in summation: “[Beaty]

11 told you almost proudly, it seemed, that in the course of

12 his lifetime he has committed hundreds of crimes.” Trial Tr.

13 at 447 (Oct. 26, 2004); Beaty was not asked to enumerate

14 each one, and his failure to do so sua sponte does not

15 constitute perjury.

16 Parkes argues alternatively that the district court

17 should have granted a new trial on the ground of newly

18 discovered evidence. A motion for a new trial on the ground

19 of newly discovered evidence is granted “only in the most

20 extraordinary circumstances.” United States v. Spencer, 4

21 F.3d 115, 118 (2d Cir. 1993) (emphasis in original). Newly

22 discovered evidence supports the grant of a new trial only

30
1 if the defendant demonstrates that the evidence could not

2 have been discovered through the exercise of due diligence

3 before or during trial, and that the evidence is “so

4 material and noncumulative that its admission ‘would

5 probably lead to an acquittal.’” United States v. Zagari,

6 111 F.3d 307, 322 (2d Cir. 1997) (quoting United States v.

7 Alessi, 638 F.2d 466, 479 (2d Cir. 1980)). “[N]ew

8 impeachment evidence is not material, and thus a new trial

9 is not required ‘when the suppressed impeachment evidence

10 merely furnishes an additional basis on which to impeach a

11 witness whose credibility has already been shown to be

12 questionable.’” United States v. Wong, 78 F.3d 73, 79 (2d

13 Cir. 1996) (emphasis in original) (quoting United States v.

14 Payne, 63 F.3d 1200, 1210 (2d Cir. 1995)).

15 Parkes cannot satisfy this exacting standard: (i) the

16 evidence regarding Beaty’s plotting is additional

17 impeachment; (ii) according to Parkes, “Beaty’s

18 unreliability was the central thrust of the defense

19 summation”; (iii) the new evidence does not concern the

20 central question of Parkes’s involvement in the attempted

21 robbery and murder; and (iv) there was ample corroborating

22 evidence of Parkes’s involvement independent of Beaty’s

31
1 testimony. In short, Parkes is unable to demonstrate that

2 the jury’s consideration of evidence of Beaty’s plotting

3 “would probably [have led] to an acquittal.” Alessi, 638

4 F.2d at 479.

5

6 IV

7 Parkes impugns the prosecutor’s statements in summation

8 that “[d]rug dealing affects interstate commerce” and that

9 “robberies that seek drugs and drug money do so as well.”

10 Trial Tr. at 439-40 (Oct. 25, 2004). According to Parkes,

11 these arguments constituted an improper attempt to misstate

12 the law to the jury.

13 As the district court observed, these statements were

14 (at the very least) arguably not inappropriate. The cold

15 record doesn’t permit an assessment as to whether the

16 statements were intended as a misstatement of law (as Parkes

17 argues), or a permissible argument of fact (as the district

18 court found). See Trial Tr. at 443 (Oct. 26, 2004) (denying

19 Parkes’s motion for a mistrial based on the prosecutor’s

20 statements and observing “I only heard a factual

21 assertion”). But even if they were inappropriate, the

22 statements would not warrant reversal.

32
1 “To warrant reversal, the prosecutorial misconduct must

2 cause the defendant substantial prejudice by so infecting

3 the trial with unfairness as to make the resulting

4 conviction a denial of due process.” United States v.

5 Elias, 285 F.3d 183, 190 (2d Cir. 2002) (internal quotation

6 marks omitted). In assessing the alleged misconduct, we

7 consider “the severity of the misconduct, the measures

8 adopted to cure it, and the certainty of conviction in the

9 absence of the misconduct.” United States v. Melendez, 57

10 F.3d 238, 241 (2d Cir. 1995).

11 These challenged statements were isolated. “[I]solated

12 remarks are ordinarily insufficient [to warrant reversal].”

13 Elias, 285 F.3d at 191. Defense counsel had adequate

14 opportunity in his summation to dispute the government’s

15 assertions, and took it, arguing that the prosecutor “flatly

16 misstated the law to you,” and that “[t]here has to be

17 pro[of] that the drug dealing in this case affects

18 interstate commerce. And there was no such proof.” Trial

19 Tr. at 454-56 (Oct. 26, 2004). In any event, the judge’s

20 instructions to the jury--that it was for the jury to

21 determine whether the attempted robbery affected interstate

22 commerce--cured any possible prejudice. And even further

33
1 assuming, arguendo, that the prosecutor’s remarks were both

2 improper and uncured, they would not have “so infect[ed] the

3 trial with unfairness as to make the resulting conviction a

4 denial of due process.” Elias, 285 F.3d at 190 (internal

5 quotation marks omitted).

6

7 V

8 The government has brought to our attention two errors

9 in the district court’s calculation of Parkes’s sentence.

10 First, the statutory maximum term of imprisonment for

11 conviction of 18 U.S.C. § 922(g) (felon-in-possession of a

12 firearm) is ten years, not the twenty years to which the

13 district court sentenced Parkes. See 18 U.S.C. § 924(a)(2);

14 United States v. Riley, 452 F.3d 160, 164 (2d Cir. 2006)

15 (observing that “the statutory maximum prison term for

16 violation of § 922(g)(1) was 120 months”). Second, because

17 18 U.S.C. § 924(c) is a lesser included offense of 18 U.S.C.

18 § 924(i)(1), the district court erred by imposing sentences

19 on both. See, e.g., Rutledge v. United States, 517 U.S.

20 292, 306-07 (1996). Consequentially, we vacate the sentence

21 and remand for re-sentencing.

22 * * *

34
1 In light of the foregoing, we affirm the conviction but

2 remand for re-sentencing.

35