Supreme Court decides Taylor: knowingly robbing a drug dealer of drugs or proceeds satisfies Hobbs Act

After a long week of business travel, I’m ready to begin posting again and wanted to begin with some observations on the (in my view) egregious treatment given to Dustin Johnson yesterday at Oakmont by the United States Golf Association.  Fortunately, DJ played sterling golf down the stretch, mooted the consequences of the USGA’s concerns, and (implicitly, of course) gave the USGA a big ol’ middle finger with a dramatic birdie at 18 to widen his margin of victory in the U.S. Open.  But I have been thinking about doing some posts on what the rules of sports can learn from rules of law, and the Johnson-ball-moving controversy supplies an excellent subject for such a post (as would the almost equally egregious treatment DJ received from the PGA of America at Whistling Straits back in 2010, robbing him of his place in the playoff for the PGA Championship – I’m sure I want to revisit that, too).

But that commentary will have to wait.  More immediately, it was a big day at the Supreme Court for federal criminal justice.  Nothing shocking, but three cases announced today each have some significance for prosecutors and defense lawyers.

The Court decided Taylor v. United States.  I posted on Taylor earlier in the year (here).  Predictably, the Court, per Justice Alito, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied merely by showing that the defendant knowingly robbed a drug dealer of drugs or drug proceeds.  The opinion was short, and found that any questions about the scope of the jurisdictional element were governed by Gonzales v. Raich.  Because Congress has the authority to regulate the intrastate possession, manufacture, or distribution of controlled substances, it follows that Congress can criminalize the intrastate theft of controlled substances.

Three items from Taylor are noteworthy.  First, Justice Alito’s opinion accepted, for purposes of this litigation, the holding from Stirone v. United States that the Hobbs Act employs the full scope of congressional commerce power.  Justice Alito does not defend this proposition with any additional language, but simply says the “expansive language of the Act” cannot be interpreted otherwise.  But that is exactly the problem: the expansive language of the Act.  Had Taylor placed before the Court the question of whether the wording of the jurisdictional element was consistent with the Court’s Commerce Clause cases since 1995 (Lopez), and not 1960 (Stirone), I think Justice Alito would have had to defend the scope of the Hobbs Act more decisively.  My view is that these drug robbery cases are the somewhat easy cases, because of Raich; far more difficult applications of the jurisdictional element involve other kinds of robberies, ones that do not involve subject matter already covered by a Court decision on the scope of the Commerce Clause (e.g., robbery of, say, a local convenience store, or a home-invasion robbery of a person who also owns a small business).  Justice Alito seems to acknowledge this by limiting the holding to drug dealer robberies, and perhaps that very sentence will encourage challenges to the scope of the jurisdictional element in other robbery cases that do not involve drug dealers.

Second, Justice Alito acknowledges Justice Thomas’s lone dissent.  Justice Thomas was largely echoing concerns he has raised for twenty years about the Court’s Commerce Clause jurisprudence, and because he could not muster majorities in the previous Commerce Clause cases in which he wrote separately to express his views on Commerce Clause originalism, it is unsurprising that he is speaking for himself here, as well.  But Justice Alito then says “we have not been asked to reconsider Raich.  So our decision in Raich controls the outcome here.”  Fair enough.  But what if the Court had been asked to reconsider Raich?  I’m not sure this matters much, as I think Justice Alito (and the Chief Justice) would be highly unlikely to undo Raich.  Even if that question were before the Court, Justice Thomas would likely be writing for himself (after all, he is the only Raich dissenter who is still on the Court).

Finally, the majority opinion says the Hobbs Act is satisfied if the defendant “knowingly stole or attempted to steal drugs or drug proceeds.”  I read this as requiring proof of knowledge as to the derivation of the items sought.  But what if the defendant robbed a drug dealer and did not know the person was a drug dealer?  Or, what if the defendant knowingly targeted a drug dealer but stole items not derived from the sale of drugs (such as, for example, expensive jewelry that the victim bought with salary from legitimate employment)?  The Court’s language here could invite additional litigation in these cases on the question of where the money to purchase the stolen items came from –  legitimate sources or drug trafficking?

The Court today also decided RJR Nabisco v. European Community (here), which held that in civil RICO litigation, RICO does not apply extraterritorially unless Congress expressly makes it so.  Because civil RICO decisions can affect the scope of criminal RICO prosecutions (each kind of action derives from the same body of statutory law), I will think more about how important this case may (or may not) be in future criminal RICO cases.

And the Court decided Utah v. Strieff (here), holding that the exclusionary rule does not apply where an unconstitutional Terry stop leads to the discovery of an outstanding warrant, the arrest for which turns up drug evidence.  The discovery of the outstanding warrant, the Court held, breaks the chain of causation between the initial illegality and the seizure of the evidence.  I’ll have more to say on Strieff in a future post.

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