Opinion
No. 02-40025-01-SAC
May 22, 2002
MEMORANDUM AND ORDER
This case is before the court on the following motions of the defendant: Motion to disclose expert testimony (Dk. 30); Motion to dismiss indictment for lack of jurisdiction (Dk. 27); and Motion to dismiss counts three and four (Dk. 26). The government has responded (Dk. 31). The court heard counsels' oral argument concerning these motions on May 6, 2002, and issues this ruling.
MOTION TO DISCLOSE EXPERT TESTIMONY
At oral argument of this motion, both parties agree that defendant's request has been fully satisfied by the government's response. Accordingly, this motion is denied as moot.
MOTION TO DISMISS FOR LACK OF JURISDICTION
Defendant moves the court to dismiss the case for lack of jurisdiction, alleging that the requisite nexus to interstate commerce has not been shown. This is a Hobbs Act case.
The Hobbs Act provides for the punishment of "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do. . . ." 18 U.S.C. § 1951(a). The act further defines commerce as "all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction." 18 U.S.C. § 1951(b)(3).
Defendant contends that the Hobbs Act requires a showing of a substantial effect, rather than a de minimis effect, on interstate commerce to prove the requisite jurisdictional nexus, and that acts having less than a substantial effect on commerce cannot be aggregated to reach the jurisdictional minimum. Defendant recognizes, however, that "the Tenth Circuit Court of Appeals precedent is contrary to this motion." Dk. 27, p. 2 n. 1.
The Tenth Circuit has repeatedly and recently held that the jurisdictional predicate of the Hobbs Act can be satisfied by a showing of any de minimis effect on commerce, and that the government need not show a substantial effect on interstate commerce. See e.g,. United States v. Battle, ___ F.3d ___, (10th Cir. May 8, 2002); United States v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995) (quoting United States v. Zeigler, 19 F.3d 486, 489 (10th Cir.), cert. denied, 513 U.S. 1003 (1994)); see also United States v. Malone, 222 F.3d 1286, 1295 (10th Cir.), cert. denied, 531 U.S. 1028 (2000).
The court is aware of contrary rulings in other circuits, but is bound by circuit precedent. See United States v. Spedalieri, 910 F.2d 707, 709 n. 2 (10th Cir. 1990). Thus the contention that the requisite jurisdictional nexus requires a showing of a substantial effect, rather than a de minimis effect, on interstate commerce for purposes of the Hobbs Act is not sound, and defendant's motion to dismiss the case for lack of jurisdiction shall be denied.
MOTION TO DISMISS COUNTS THREE AND FOUR
Defendant next moves the court to dismiss counts three, conspiracy, and four, use of a firearm in the conspiracy, for failure to allege that defendant's actions bore a sufficient relation to interstate commerce, a jurisdictional element. This issue presents a closer question.
Counts three and four arise from defendant's alleged robbery and shooting at a residence where the occupants/victims were believed to be selling marijuana. Count three charges in pertinent part as follows:
that on or about October 14, 2001, in the District of Kansas, the defendant . . . conspired . . . to commit the crime of Interference With Commerce By Robbery by unlawfully robbing persons . . . thought by the conspirators to be . . . persons involved in the sale of illegal drugs, particularly marijuana, a business that operates in interstate commerce and which is engaged in interstate commerce and an industry which affects interstate commerce.
(emphasis added).
Count four alleges that defendant possessed, used, carried, brandished and discharged a firearm during and in relation to the conspiracy charged in count three. Both parties agree that count four depends on the validity of count three, and that analysis of the jurisdictional element in count three will control the validity of count four as well.
The government has stated its assumption that it may be unable to obtain an admission from the victim that he or she was selling marijuana from their residence. The issue is thus whether the indictment is legally sufficient in alleging, in its Hobbs Act conspiracy charge, that the defendants believed that the persons they robbed were involved in the sale of marijuana, and in further alleging that such business affects interstate commerce.
It is well established that jurisdictional facts are "essential elements of a crime . . . that must be alleged in the indictment and proven at trial." United States v. Prentiss, 206 F.3d 960, 969 (10th Cir. 2000) (en banc). The "failure to allege an essential element of a crime is a fatal error." Id. at 976.
An analysis of the language of indictments requires a practical and commonsense approach. United States v. Moore, 556 F.2d 479 (10th Cir.); Robbins v. United States, 476 F.2d 26 (10th Cir.). An indictment is sufficient if it provides the defendant with adequate notice of charges and an opportunity to prepare his defense. Smith v. United States, 273 F.2d 462 (10th Cir.).
United States v. Worley, 751 F.2d 348, 350 (10th Cir. 1984) (finding evidence that the county regularly purchased goods that had moved in interstate commerce sufficient to establish the interstate nexus).
"There are two essential elements giving rise to a violation of the Hobbs Act: Interference with commerce and extortion/ robbery. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)." United States v. Hall, 424 F. Supp. 508 (W.D.Ok. 1975). See Prentiss, 206 F.3d 960, citing United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (finding indictment for conspiracy to commit robbery in violation of Hobbs Act sufficient where it contained the necessary elements of the offense, specifically including that the robbery affected interstate commerce). See also United States v. Tush, ___ F.3d ___, (10th Cir. May 3, 2002) (finding interstate commerce element of another statute not jurisdictional requirement in the sense that it affects a court's subject matter jurisdiction, but an essential element of the crime).
The Hobbs Act does not require that the commerce affected be legal commerce. See United States v. Jones, 30 F.3d 276, 285-86 (2d Cir.), cert. denied, 513 U.S. 1028 (1994) (even an effect on an illegal business affects interstate commerce for purposes of the Hobbs Act.); United States v. Mason, 2001 WL 69442 at *8 (S.D.N.Y. Jan 29, 2001) (holding depletion of assets theory supports Hobbs Act convictions even though the commodities involved are narcotics). Thus it is immaterial to the interstate commerce element in the present case that the victim allegedly robbed by defendant was involved in the illegal sale of marijuana.
It is well established that an indictment containing only a general allegation of effect on commerce is sufficient. See e.g., Anderson v. United States, 262 F.2d 764 (8th Cir. 1959); United States v. Frumento, 405 F. Supp. 23 (E.D.Pa. 1975); United States v. Quinn, 364 F. Supp. 432 (N.D.Ga. 1973); United States v. Malinsky, 19 F.R.D. 426 (S.D.N.Y. 1956). An indictment alleging a violation of the Hobbs Act need not specify the precise nature of the effect upon interstate commerce that the government intends to prove at trial. United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998). See United States v. Woodruff, 50 F.3d 673, 676 (9th Cir. 1995) ("Although the indictment contained no facts alleging how interstate commerce was interfered with, and did not state any theory of interstate impact, . . . the indictment was sufficient as written.") (Hobbs Act); United States v. Williams, 679 F.2d 504, 509 (5th Cir. 1982) ("An indictment which alleges the interstate commerce element of a federal offense in conclusory terms, without setting forth evidentiary detail, is not insufficient.") (Hobbs Act). Similarly, the government is not required to set forth in its indictment the theory that it intends to use at trial to establish the elements of the crime. United States v. O' Malley, 796 F.2d 891, 898 n. 9 (7th Cir. 1986).
Further, an indictment need not allege that any of the co-conspirators believed that their acts might have any potential effect on interstate commerce. "It is not necessary to charge or prove that Defendants knew or intended that their acts would affect commerce in any way. United States v. Starks, 515 F.2d 112 (3d Cir. 1975)." United States v. Barna, 442 F. Supp. 1232, 1235 n. 2 (D.C. Pa. 1978).
Here, however, defendant does not seek to force the government to disclose its theory of prosecution. Instead, defendant's point is that the indictment fails to allege that she planned to commit a crime which, if successful, would have violated federal law, and fails to allege that defendant's acts had a potential effect on interstate commerce. Defendant thus contends that no impact on interstate commerce is alleged. The government counters that count three need not allege an impact on interstate commerce because this is a conspiracy charge. The government relies upon United States v. Parker, 165 F. Supp.2d 431 (W.D.N.Y. 2001), and similar cases which uphold convictions for conspiracy charges where robbery or extortion victims are actually undercover agents rather than drug dealers.
In Parker, defendants believed the agent was a drug dealer, and theft from a drug dealer would have reduced the dealer's ability to buy drugs, a commodity moving in interstate commerce. In Parker, the indictment charged:
Defendants conspired to obstruct, delay and affect interstate commerce by robbery, and extortion including claim of right in violation of the Hobbs Act, 18 U.S.C. § 1951, during the period November 10, 1999 through March 2, 2000 by taking money from a confidential source and a government undercover agent.
The indictment thus expressly alleged that the defendants conspired to affect interstate commerce, an allegation not made in the present case.
The government relies upon well established law that a conspiracy charge does not require a showing that the unlawful objectives of the conspiracy are capable of fruition. See United States v. Jannotti, 673 F.2d 578, 591 (3d Cir.) (en banc) (upholding Hobbs Act conspiracy convictions based on receiving money to influence official conduct from undercover agents posing as foreign business persons seeking favorable official action using government funds), cert denied, 457 U.S. 1106 (1982).
The court agrees that an indictment for a Hobbs Act conspiracy charge need not allege an actual effect upon interstate commerce, or a potential effect upon interstate commerce, and that the jurisdictional nexus may be otherwise established. For example, an indictment for conspiracy would be sufficient regarding its jurisdictional nexus allegation in alleging that one defendant believed that the co-conspirators' acts would impact interstate commerce. See United States v. Rosa, 17 F.3d 1531 (2d Cir.), cert. denied, 513 U.S. 879 (1994) (non-Hobbs Act case) (finding the jurisdictional nexus in a conspiracy case could be satisfied by the belief of at least one conspirator that the goods had traveled interstate.)
Here, the indictment alleges that defendant thought her victim was "involved in the sale of illegal drugs, particularly marijuana, a business that operates in interstate commerce and which is engaged in interstate commerce and an industry which affects interstate commerce." The indictment further alleges that defendant conspired to commit the crime of interference with commerce by robbery. The court finds that this language, though artlessly drafted, is nevertheless minimally sufficient to provide defendant with adequate notice of the charges against her and an opportunity to prepare her defense.
Because the sufficiency of count four of the indictment is admittedly dependent upon the validity of count three, the court finds it sufficient as well.
IT IS THEREFORE ORDERED that defendant's motion to disclose expert testimony (Dk. 30) is denied as moot.
IT IS FURTHER ORDERED that defendant's motion to dismiss for lack of jurisdiction (Dk. 27), and motion to dismiss counts three and four (Dk. 26), are denied.