When does robbery of a local brothel substantially affect interstate commerce? Apparently, pretty much always.

Last year, I posted about the Supreme Court’s review of, and unsurprising decision in, Taylor v. United States.  That case, up from the Fourth Circuit, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied where there is a robbery involving a drug dealer.

This past week, the Fourth Circuit issued another opinion raising a similar question about the application of the “affects commerce” element of the Hobbs Act to an unlawful business operation.  This time, rather than drug dealers, the court in United States v. Lopez considered the 2007 robbery of a Maryland brothel.

As the court described the facts of the case, the Prince George’s County brothel was located in a first-floor apartment, staffed by a Adelaida Garcia-Calderon and a doorman/money collector.  Two young men entered, demanded money, tied the doorman’s feet and hands, and then one of them raped Garcia-Calderon at knife-point.  Another man, Carlos Cordon, walked in on the robbery and was stabbed to death by one of the perpetrators; Cordon’s body was found behind the apartment building.  Garcia-Calderon and the doorman survived, but the case remained unsolved for several years.  Finally, local police were able to match the DNA from the crime scene to Miguel Ramon Cerros-Cruz, an MS-13 member, and Alexsi Lopez.  Police also had the testimony of an MS-13 member who was incarcerated with Lopez and overheard Lopez confess to the brothel robbery and killing, while also implicating Cerros-Cruz.

Lopez was indicted for violating, and conspiring to violate, the Hobbs Act.  (Although he was 17 at the time of the crime, Lopez was 24 at the time of trial, and was subject to trial in federal district court; the five-year statute of limitations was also extended because of the DNA testing, see 18 U.S.C. 3297).  Cerros-Cruz pleaded guilty; Lopez went to trial and was convicted.  The court sentenced Lopez to 20 years in prison.  (Though I remain curious: if there was evidence that the perpetrators committed the robbery, rape, or killing in order to maintain or increase their standing with MS-13, why not charge the case under VICAR, 18 U.S.C. 1959?).

The Fourth Circuit rejected Lopez’s claim on appeal that there was insufficient evidence to show the required effect on commerce.  Citing the familiar line that the Hobbs Act requires only a de minimis effect on commerce, the court noted that a brothel — like drug dealing — is an “inherently economic enterprise.”  Moreover, the court noted, in many cases, including this one, the brothel workers will travel across state lines.  The Government also provided evidence that the brothel used condoms manufactured out-of-state, and that Lopez and Cerros-Cruz targeted the brothel because of its nature as an illegal business that dealt in cash.

Although this case feels much like Taylor, that case expressly limited its holding to situations involving drug dealers as targets and to “drugs or drug proceeds,” because the federal government has jurisdiction over those markets.  “We do not resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted,” the Court said.  After Taylor, it is worth asking whether a small-scale, local brothel engages in the kind of commercial activity over which the United States exercises jurisdiction the way that it does with respect to the controlled substance market.  After all, the Taylor decision was arguably inevitable in light of Gonzales v. Raich, which expressly decided that Congress had the power to regulate the interstate drug marketplace by reaching even wholly intrastate, locally grown marijuana.

The Fourth Circuit did not have a similar precedent on which it could rely with respect to federal jurisdiction over an interstate brothel marketplace.  Still, existing Hobbs Act case law seems to support the Lopez holding. This includes the more general rationale offered in Taylor — citing Raich — with respect to aggregation of economic activity and Congress’s ability to reach intrastate incidents of an activity that is part of a broader class of activity that is within Congress’s reach.  See also Perez v. United States.  Just as drug dealing is a “moneymaking endeavor,” as Taylor described it, so, too, is prostitution.   To reach this activity through the Hobbs Act, though, one must conclude that robbery of a brothel would also effect an interstate brothel marketplace over which the United States exercises jurisdiction.

In addition, multiple lower federal court cases recognize that where the robbery depletes the assets of a commercial establishment, then this is enough to satisfy the jurisdictional element.  But does the Lopez case involve the depletion of assets of a business, or simply of the individual sex worker or brothel manager?  Presumably, of course, someone else  — to whom Garcia-Calderon answers — is getting a cut of the cash.  But is that cash used for purposes connected with the business (such as to buy condoms, or bed linens, or other items associated with pursuing a business that involves sexual activity)?  Also, the fact that the condoms came from out-of-state provides a thin basis for satisfying what should be a more demanding jurisdictional analysis, unless the robbers took condoms, as well.  Nonetheless, federal courts have found the Hobbs Act satisfied on much thinner grounds than exist in Lopez.

Still, it is worth considering the gravamen of Justice Thomas’s Taylor dissent, and the efforts that Justice Alito made to limit the reach of the Taylor holding (perhaps to satisfy some of Justice Thomas’s concerns).  If the Fourth Circuit is correct that the brothel’s character as a commercial establishment, even an unlawful one, is by itself sufficient to satisfy the Hobbs Act (and thus the Commerce Clause), then it would seem that any robbery of any business — no matter how small, or how local, and no matter the volume of its business nor the amount of money that it makes — would be enough to justify the exercise of federal jurisdiction under the statute.  One wonders whether that rule would be consistent not only with the statutory definition of “commerce,” but also with a Constitution that denies a general police power to the federal government.

Perhaps the Fourth Circuit, even if ultimately correct, could have offered a more substantial analysis with respect to the effect on commerce.  It is one thing to acknowledge that the Hobbs Act incorporates all of Congress’s commerce power.  It is quite another to interpret the Hobbs Act in a way that gives Congress more than that.



Transgender killing results in federal hate crime conviction

Several of my recent posts have addressed issues related to hate crimes.  Obviously, the Roof conviction and upcoming federal death penalty hearing has made that case the leading hate crime story nationally of late.  But it seems helpful to note the latest hate crime story of interest, also from the deep South.  Like others, it raises important questions about the federal role in prosecuting violent crimes committed with a bias-motivation.  As the Justice Department announced here, a Mississippi man yesterday pleaded guilty to brutally killing his former romantic partner because she was transgender, and in order to avoid the wrath of a violent street gang.

According to the DOJ and the defendant’s statements at the plea hearing, Joshua Vallum had been dating Mercedes Williamson, then 17.  Vallum knew that Williamson was transgender but he kept this a secret from his family and friends.  Vallum was also a member of the Latin Kings.  The relationship ended and for about nine months, Vallum had no contact with Williamson.  Vallum learned, however, that one of his friends found out that Williamson was transgender.  Believing that he would be harmed if the Latin Kings also discovered that he had been dating a transgender person (the gang has strict rules about homosexuality, and Williamson’s birth gender was male), Vallum decided to kill Williamson.

After driving her from Alabama to Mississippi, he shocked her with a stun gun, and stabbed her repeatedly with a pocket knife.  Williamson was able to escape from the car where Vallum had stabbed her, but Vallum gave chase and stabbed her again in the head (he believed he had “hit brain”).  Although Williamson was still able to stumble into some woods, Vallum again caught up to her and hit her repeatedly with a hammer, killing her.

This case gained special national prominence after Caitlyn Jenner remembered Williamson during Jenner’s 2015 speech at the ESPY awards.

Vallum had already been convicted in Mississippi state court of murder and received a life sentence.  But, as has been true in other cases, the Feds believed that it was necessary to pursue a federal prosecution because Mississippi does not have a hate crimes statute for which gender identity is a protected category.  Thus, in the language of both the relevant statute (the Shepard-Byrd Act, 18 U.S.C. 249) and the DOJ’s Petite Policy, the state prosecution left the specific federal interest “unvindicated.”  It is an open question whether the Trump Administration will take a similar view of how federal interests become vindicated by state prosecutions.

Vallum now faces another life sentence, this time in the federal system.  As I have discussed elsewhere, there is no death penalty under the Shepard-Byrd Act, though I believe this case and others demonstrate why there ought to at least be that option for federal juries in section 249 cases involving brutal killings like this one.

But that raises another question: why not also charge Vallum with murder in aid of racketeering (18 U.S.C. 1959)?  The VICAR statute reaches murder committed for the purpose of “maintaining or increasing position” in a racketeering enterprise.  If the Government’s theory is that Vallum killed Williamson not simply to avoid harm by the Latin Kings (surely a “racketeering enterprise” as defined in VICAR), but in order to remain a member of the Latin Kings, then this would seem to provide sufficient evidence to charge the VICAR offense.  That is notable because a killing under VICAR – unlike the Shepard-Byrd Act – does permit the death penalty.

I have not seen the Vallum indictment.  Perhaps it does contain a VICAR charge, and that charge was dismissed as part of the plea agreement to the hate crime.  If it was not included, perhaps the theory would be that Vallum committed the killing not on behalf of the Latin Kings, or because of a desire to maintain his position in the Latin Kings, but only because of Williamson’s gender identity and his fear of the gang’s enforcement.  But it seems hard to neatly separate his killing of Williamson on account of her gender identity from his interest in maintaining a place within the gang – arguably, he did one to preserve the other.  And that is precisely what VICAR forbids.

Finally, because this prosecution was based on section 249(a)(2), which is justified only under the Commerce Clause, there is a reasonable question as to whether the federal government properly had jurisdiction in the case.  But the statute easily answers that problem, at least as a matter of statutory application.  It specifically permits federal jurisdiction where there was travel across state lines, see 18 U.S.C. 249(a)(2)(B)(i)(I), and that was the case here.  Perhaps Vallum could have argued that the travel from Alabama to Mississippi was too attenuated from the killing to be justified under the Commerce Clause, but I doubt such an argument would go very far.  The statute also permits federal jurisdiction where the defendant uses a dangerous weapon or other weapon that has traveled in interstate commerce, or where the defendant used a “channel, facility, or instrumentality” of commerce “in connection with” the prohibited conduct, or where the prohibited conduct otherwise affects commerce.  See 18 U.S.C. 249(a)(2)(B)(ii)-(iv).

Still, in a different case, depending upon the facts, it could make sense to question whether some of these jurisdictional elements are enough to satisfy the Commerce Clause.  Watch for a hate crime case presenting a viable challenge to the jurisdictional element and the scope of congressional power.

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.

One gun, two robberies, and the continued significance of dealing drugs that come from somewhere else

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.


Blue Lives Matter legislation in the Congress

Representative Ken Buck of Colorado has introduced the Blue Lives Matter Act, H.R. 4760.  This bill would add police officers to the list of protected persons in the Shepard-Byrd Act, the federal hate crimes law.  See 18 U.S.C. 249.  From what I can tell, though, Rep. Buck’s bill would create a new section number for police officer attacks (section 250)(and, I would add, defines “police officer” so broadly as to include prosecutors, and even judges).

Ilya Somin has a thoughtful piece up at VC on the Blue Lives Matter legislation (which references a good separate piece by Alison, his wife, at the Fed-Soc Blog).  Ilya’s piece is here.  Kent Scheidegger has a similarly-themed post up at C&C here.  Both Ilya and Kent agree with the sentiment expressed by the law, but think that as a federal law it is an unnecessary affront to federalism, which is also a value that conservatives should champion and that has been undermined by the growth of federal criminal law in recent decades.

I am sympathetic to the federalism argument that both Ilya and Kent make.  And both make persuasive claims that the legislation is unnecessary, even if well-intentioned.

But let me take a stab at defending the bill, at least on two narrow grounds.

First, the constitutional question, which Ilya raises, is an interesting one.  The hate crimes law has two distinct provisions – one protects persons from race-based violence and is justified by Congress’s enforcement power pursuant to Section 2 of the 13th Amendment; the other protects persons from violence based on religion, national origin, gender, sexual orientation, gender identity, or disability, but requires proof of a connection to interstate commerce.  Rep. Buck’s bill would add police officers to this latter provision.

Federal courts that have entertained constitutional challenges to the hate crimes bill have routinely upheld it.  Rep. Buck and the bill’s co-sponsors can mostly avoid the constitutional debate by pointing to existing case law regarding the Shepard-Byrd Act (though conservatives would typically be disinclined to defend a broad view of the commerce power, and liberals would not be inclined to make this a ground for their opposition anyway).

Second, and more importantly, the real benefit of the hate crimes legislation is not that it creates a new offense.  After all, the conduct that triggers the federal hate crimes law will typically already be punishable as a crime, either at the federal or state level.  Instead, the hate crimes law formally recognizes the principle that a bias-motivated crime, or one that is the product of certain kinds of animus, is worthy of more serious punishment than similar conduct committed without the bias or animus.  As this theory goes, if X shoots and kills V, it matters whether X did so because he and V merely had an argument, or whether X did so precisely because V was African-American, or because V was a Christian, or because V was a woman or was gay.

In this sense, extending hate crimes protection to law enforcement officers has value.  Not only does the legislation ensure substantial punishment for a person who engages in violence based on animus against law enforcement officers, it also conveys the message that a decent citizenry should respect law enforcement authority, just as it should respect people of various races, religions, and sexual orientations in our communities (though one could argue that one’s status as a police officer differs in kind from the characteristics enumerated in the Shepard-Byrd Act, an argument I find unpersuasive in this context).  In other words, if X attacks V with a hatchet, and V is a police officer, it should matter whether X did so while, say, mistaking V for a private citizen, or whether X attacked V knowing that – and because – V is a police officer.  The latter motivation distinguishes the two acts, and arguably makes X not only more culpable but more dangerous to the community (and therefore worthy of more serious punishment).

A problem with this argument, of course, is the one to which Ilya and Kent allude.  State law appears to be sufficient to deal with this.  It would be different if States could not be trusted to protect law enforcement officers from violence, or if the federal government had some special interest in protecting officers that was not shared by the States.  But that is not the case.  And as for distinctly federal law enforcement officers, they already have the protection of federal criminal law.  See, e.g., 18 U.S.C. 113, 115, 1114.  I suppose one can imagine a scenario where the state law might have gaps.  For example, if a person attacks a police officer who is off duty – such as at his home – then any state law that protected the officer only during the performance of his official duties would not apply.  But, as currently drafted, neither would H.R. 4760. (query: if it is the person’s mere status as an officer that matters, why then does it matter whether the officer is actually engaged in the performance of his duties at the time of the attack?)

Still, the bill – like the Shepard-Byrd law – accounts in some ways for the federalism problem.  It requires a similar certification procedure.  And even if it did not, the DOJ’s Petite Policy (which the certification provision essentially codifies) would apply where the dual or successive prosecution problem existed.  (I have, by the way, been critical  – on separation of powers grounds – of Congress’s effort to codify the Petite Policy or other policies that restrain the DOJ’s charging discretion).

One can support the Blue Lives Matter idea, as well as the existing federal hate crimes law, and yet also believe in keeping federal criminal law narrow and in leaving most criminal law enforcement to the States, save for those situations where the Constitution defines a federal crime (treason) or specifically empowers the federal crime-definition (e.g., piracies and felonies on the high seas), or where there is an important interest that is distinctly federal and is reachable pursuant to a non-crime-specific provision of the Constitution (e.g., section 2 enforcement power, or the commerce power).  It is usually difficult to oppose a bill whose idea one finds appealing.  And if this legislation were proposed at the State level, the federalism objections would be obviated.  In this instance, there are good reasons to favor the notion of enhancing punishment for violence motivated by animus against law enforcement.  And yet, there also are good reasons, articulated by Ilya’s and Kent’s posts, to leave this matter to the states, which seem to be pretty good at responding to violence against police.  Constitutional conservatives who support the Blue Lives Matter idea will find this to be a tough call.

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.


Constitutionality of the MDLEA in question

The Maritime Drug Law Enforcement Act, 46 U.S.C. 70501 et seq. (MDLEA), is a little-known statute with a potentially very broad reach.  It allows the United States to prosecute drug crimes committed by foreign nationals on the high seas, even where the person has no demonstrable connection to the United States and regardless of whether the drugs are destined for any American territory.  The statute uses a concept from international law known as Universal Jurisdiction (UJ), which allows a country to prosecute certain international crimes even without a connection to the prosecuting country.

Although some defendants have unsuccessfully challenged the MDLEA on due process grounds (the Fifth Amendment requires no nexus to the U.S.), there remains the question of whether the Congress has Article I power to reach a foreign national on the high seas with no meaningful U.S. connection.  Congress has power to “define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.”  But it is not clear that international drug trafficking, without more, fits this grant of power.  For an excellent overview and criticism of the reach of the statute, see Eugene Kontorovich, “Beyond the Article I Horizon: Congress’s Enumerated Powers and Universal Jurisdiction Over Drug Crimes,” 93 Minn. L. Rev. 1191 (2009).

Last week, the United States Court of Appeals for the First Circuit rejected a challenge to the MDLEA in United States v. Diaz-Doncel.  Diaz-Doncel was on the crew of a cigarette boat traveling in the Caribbean.  A United States Coast Guard cutter ordered it to heave to (to slow or stop), but the boat continued on its way and a chase ensued.  The boat was eventually intercepted by a Dutch war ship with USCG personnel aboard.  Diaz was indicted for conspiracy to possess, and aiding and abetting possession of, cocaine on a vessel subject to the jurisdiction of the United States.  A third count included aiding and abetting failure to heave to (yes, that’s a federal crime, see 18 U.S.C. 2237).  Diaz-Doncel challenged the constitutionality of MDLEA.

Problem is, Diaz-Doncel pleaded guilty but did not negotiate a conditional plea, which would have allowed him to raise certain issues on appeal.  Instead, by entering a straight guilty plea, the First Circuit held, he forfeited the MDLEA claim.  Diaz-Doncel said the claim is jurisdictional and can be raised at any time.  The First Circuit said no, it cannot.  Under circuit precedent, a constitutional challenge to MDLEA does not go to the subject matter jurisdiction of the court, and therefore cannot be raised for the first time on appeal from a straight guilty plea.

In dissent, Judge Torruella disagreed.  He argued not only that the claim was an attack on the subject matter jurisdiction of the court, and therefore could be reviewed on appeal, but he also cited his dissenting opinion in United States v. Cardales-Luna, 632 F.3d 731 (1st Cir. 2011).  In that case, he specifically argued that MDLEA was unconstitutional, exceeding the scope of Congress’s Article I powers.  Drawing substantially on Professor Kontorovich’s work, Judge Torruella argued that piracy, slave trading, and stateless vessels were the only acts for which UJ existed.

Like Professor Kontorovich, Judge Torruella found two early Supreme Court cases significant: United States v. Palmer (1818) and United States v. Furlong (1820).  Each case, he argued, limited Congress’s UJ powers to piracies, but forbid Congress from “attaching the jurisdictional consequences of UJ to run of the mill ‘felonies.'” Id. at 745. Drug trafficking is simply not the equivalent of piracy and is not universally condemned by international criminal law.  Therefore, neither the Define and Punish Clause nor the Offenses Clause permit Congress to grant jurisdiction over a person with no nexus to the United States, unless his or her conducts falls into one of those narrow criminal categories that UJ covers.

A remaining question – and one that Judge Torruella addressed – is whether the MDLEA is justified as implementing an international agreement pursuant to the Necessary and Proper Clause.  That is, is the law necessary and proper to carrying into execution a treaty to which the United States is a signatory?  The Supreme Court has permitted this, see Missouri v. Holland, but Judge Torruella questioned whether MDLEA was actually meant as treaty implementation.  And the Foreign Commerce Clause is a non-starter because it requires a U.S. nexus.

The lesson here for litigators: there is some potential in a constitutional challenge to MDLEA.  Make sure you preserve your right to raise it on appeal.  The lesson for Congress: take another look at MDLEA and the constitutional basis for it in cases where there is no nexus to this country.