Taylor v. United States and the Commerce Clause

On Tuesday, the Supreme Court hears oral argument in the case of David Anthony Taylor, who was part of the “Southwest Goonz,” a Roanoke-Virginia based robbery ring that targeted drug dealers.  On August 27, 2009, Taylor and the gang’s leader (George Fitzgerald) robbed the home of Josh Whorley, who was known to sell high-grade marijuana.  During the crime, Taylor struck Whorley’s girlfriend with his gun and took rings from her fingers.  Taylor and Fitzgerald took the jewelry, $40 in cash from the woman’s purse, two cell phones, and a marijuana cigarette.  On October 29, 2009, Taylor, Fitzgerald, and another member of The Goonz robbed the home of William Lynch, also known as a marijuana dealer.   While holding at gunpoint Lynch, two of his children, and his wife (one of the robbers attempted to remove her pants, then dragged her into the living room by her hair), the robbers demanded Lynch’s marijuana stash.  He said he did not have it, and after their search of the house came up empty, The Goonz took Lynch’s cell phone and left.

Taylor was convicted of, among other things, violating the Hobbs Act, 18 U.S.C. 1951(a).  The Hobbs Act makes it a crime to, “in any way,” obstruct, delay, or affect commerce or the movement of any article or commodity in commerce, by robbery or extortion, or to conspire or attempt to do so, or to “threaten physical violence to any person or property in furtherance of a plan” to violate the statute.  At Taylor’s trial (his second; his first one resulted in a hung jury) the District Court granted the Government’s motion to preclude Taylor from offering any evidence that robbing a drug dealer who sells marijuana wholly within Virginia does not affect commerce.  In other words, the District Court determined as a matter of law that such a robbery per se affects interstate commerce.  The Fourth Circuit upheld the conviction, saying, among other things, that when robbing a drug dealer, the depletion of the drug dealer’s assets will necessarily affect the commercial market for that drug.

Taylor says it was unlawful to preclude him from offering evidence that would have negated the jurisdictional element of the Hobbs Act.  This, he says, relieves the Government of its burden of proving each element of the crime beyond a reasonable doubt.  Rory Little has an excellent primer on the case over at SCOTUSBlog here.  As Rory notes, this is certainly a case where Justice Scalia’s voice could have been helpful to the petitioner.

Effectively, as Taylor presents the case, it is a due process problem, as well as one of statutory interpretation (and, incidentally, the Sixth Amendment).  One of the issues here is whether the “depletion of assets” theory is enough to satisfy the jurisdictional element – i.e., that there is the requisite effect on commerce if the robbery depletes assets that would otherwise have been used in interstate commerce.  But why is that not always the case with a robbery, especially of cash?  Some courts have said there is a difference between depleting the assets of an individual and depleting the assets of a business – the latter satisfies the Hobbs Act but the former does not.  See, e.g., United States v. Wilkerson, 361 F.3d 717 (2nd Cir. 2004) (Hobbs Act satisfied where defendants robbed two brothers at their home, but where the assets taken were derived from landscaping business).  But why is that a relevant distinction under the Hobbs Act?

In the spirit of possibly finding more here than meets the eye, I would ask the following: is there a subtle Commerce Clause problem here, based on the breadth of the jurisdictional element in the Hobbs Act?

If we assume that, as courts have said, the Hobbs Act employs the full scope of Congress’s commerce power, then presumably not just any effect on commerce will do.  Congress would only be able to prosecute robbery or extortion that involved, per United States v. Lopez, the channels or instrumentalities of interstate commerce, or activities that substantially affect interstate commerce.  At a minimum, then, it seems that the Court’s Commerce Clause cases compel proof of something more than just a de minimis effect on commerce.  How can the Court say that Congress can only reach activities that substantially affect interstate commerce and at the same time say that the Hobbs Act can reach activities with any effect on commerce, even a de minimis one?  Of course, courts need not reach the constitutional question in order to protect the defendant in these cases.  They can always read the statute to say, as some have, that the particular facts do not satisfy the jurisdictional element.  But for those courts, like the Fourth Circuit here, that have read the jurisdictional element in a more sweeping fashion, the Commerce Clause problem seems inescapable.

Several judges on the Fifth Circuit acknowledged this problem years ago in United States v. McFarland, 311 F.3d 376 (5th Cir. 2002), a Hobbs Act case involving robberies of several convenience stores in the Fort Worth area.  They spoke in dissent, however (but only because the en banc court was equally divided 8-8).  Moreover, lower courts have consistently found that robberies of even small local convenience stores were enough to satisfy the Hobbs Act because the stores sold items that once traveled in interstate commerce.  (I am reminded of Judge Becker’s separate opinion in United States v. Bishop, 66 F.3d 569 (3rd Cir. 1995) in which he hypothesizes the absurdity of federal jurisdiction over a juvenile who steals a Hershey kiss from a corner store in Youngstown, Ohio, based on the theory that the candy traveled there from Pennsylvania, where it was manufactured).  And of course in 2005, the Supreme Court decided Gonzales v. Raich, which significantly limited the impact of cases like Lopez and United States v. Morrison, both of which arguably cast doubt on the prevailing approach to the jurisdictional element in the Hobbs Act.  Even Raich, though, left intact Lopez’s understanding of the scope of the commerce power – it only reaches channels, instrumentalities, and activities with a substantial effect on commerce.

Taylor, though, does not raise this Commerce Clause problem, though his merits brief certainly dances around it.  In fact, Taylor’s merits brief says that he “does not contest the long-established rule that the connection to interstate commerce may be de minimis under the Hobbs Act.”  But why not?  Once he argues that the effect need only be de minimis, then, even assuming that the Government must affirmatively prove the element, it almost surely will do so in most cases – including this one.  Leaving that “de minimis effects” standard in place seems incongruous with the Supreme Court cases limiting the scope of the Commerce Clause that were decided after the de minimis effect standard had been adopted.

Notably, this argument has been pursued with little success in the lower courts.  But Taylor’s case looks like an opportunity to have the Supreme Court’s eyes directly on the issue, even though the Court will do so without Justice Scalia (who, it should be noted, voted to uphold the federal law in Raich, though not directly on Commerce Clause grounds, but rather on Necessary and Proper Clause grounds).  Moreover, limiting the reach of the Hobbs Act would serve as an important development at time when criminal justice reform is politically popular and the scope of federal prosecutorial power is of grave concern across the political spectrum.  Now, that could be achieved without reaching the constitutional question.  But, again, the constitutional problem would remain.

Of course, after Raich, any Commerce Clause challenge is an uphill battle.  But I’m wondering whether, in light of the unique nature of the Hobbs Act’s sweeping language, this will be a missed opportunity if at least some members of the Court do not focus on the scope of the Commerce Clause, at least during the argument.  If ever there was an argument in which Justice Thomas – the Court’s most vocal critic of expansive commerce power – might want to actively participate, this could be it.  I look forward to seeing his opinion later.  But maybe he, or another Justice, could at least ask a question about stealing a Hershey kiss from a Youngstown convenience store.

 

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