Manila “Nelly” Vichitvongsa and a group of co-conspirators planned to carry out two robberies of local drug dealers in Tennessee – one a cocaine dealer, the other a marijuana dealer. Each incident was violent, but in neither did the robbers find the money and drugs that they had planned to take. And in each incident, Vichitvongsa carried a gun.
He was charged with two counts of conspiracy to commit a Hobbs Act robbery, two counts of drug trafficking conspiracy, and four counts under 18 U.S.C. 924(c), for using or carrying a firearm during or in relation to a violent crime or drug trafficking crime (so, two firearm counts for each predicate offense, namely, the Hobbs Act and drug conspiracies). Can Vichitvongsa be prosecuted for two counts of brandishing a firearm during or in relation to each of the two predicate crimes?
No, according to the United States Court of Appeals for the Sixth Circuit in United States v. Vichitvongsa (opinion is here). The court acknowledged that this was a case of first impression for the court. It then held that, under its circuit precedent, Vichitvongsa has committed “one affirmative firearm act (brandishing a handgun) while simultaneously committing two predicate offenses (conspiring to commit Hobbs Act robbery and to traffic drugs), and this does not support two 924(c) convictions.” The relevant unit of prosecution, the court said, is the underlying offense, not the number of firearms. Based on this holding, the court avoided the potential double jeopardy question.
A less prominent – but still deceptively important – aspect of this case was Vichitvongsa’s challenge to the sufficiency of the evidence on his Hobbs Act conspiracy conviction. Once again, we see a defendant convicted of a drug robbery challenging the scope of the interstate commerce element of the Hobbs Act. This is substantially the same issue that is currently before the Supreme Court in Taylor (see my previous post here), yet no mention is made of Taylor in the Sixth Circuit’s opinion. Rather, the court relied simply upon two existing truisms: first, that this element is “extremely broad” (citing Stirone v. United States, a case from 1960 that pre-dates the more limited view of the commerce power from Lopez and Morrison by 35 to 40 years); and second, that the interstate commerce nexus is satisfied by even a de minimis connection to commerce: “‘there is no requirement that there be an actual effect on interstate commerce – only a realistic probability that [an offense] will have an effect on interstate commerce.'” (quoting United States v. Wang, 222 F.3d 234, 237 (6th Cir. 2000)). While the court acknowledged that the connection to commerce must be “substantial” in the case of robbery of a private person, that exception does not apply to drug dealers who are engaged in the business of selling drugs.
Here, the court explained, the first robbery was of Chris Leggs, who was a known cocaine dealer and who the conspirators believed possessed “several kilos of cocaine” as well as thousands of dollars. Because cocaine is not produced in the United States, but travels here usually through Mexico after originating in South America, this was a sufficient de minimis connection to interstate commerce. The same rationale applied to the second robbery, which involved the home of Daniel Crowe, who testified that for years he had sold large quantities of marijuana, which he obtained from other parts of the country and from Canada (the “BC Bud”).
I anxiously await Taylor to see if it casts any doubt on the broad prevailing approaches to Hobbs Act robbery more generally, and particularly in the case of drug dealer victims. Based on the oral argument in Taylor, I am skeptical that the Supreme Court will impose more meaningful limits on the jurisdictional element of the statute. And I am confident that the Court will not decide that the existing approaches are incompatible with the Commerce Clause.