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REVISED DECEMBER 13, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-10569

UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JAMES MCFARLAND, JR
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
October 28, 2002
Before KING, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, PARKER, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:
By reason of an equally divided en banc court, we affirm the
district court's judgment of conviction and sentence.
DAVIS and BENAVIDES, concurring in the affirmance of the
judgment:
It is a deep mystery to us why five judges thought it
helpful or appropriate to take eight fellow judges to task for
failing to explain why they decline to change the established law
of this circuit and create a circuit split. We of course
disclaim their attempt to attribute views to us.
GARWOOD, Circuit Judge, with whom JOLLY, HIGGINBOTHAM, JONES,
SMITH, BARKSDALE, DEMOSS and CLEMENT, Circuit Judges, join,
dissenting:
We respectfully dissent from the evenly divided Court's per
curiam, unexplained affirmance of these convictions. The nature
of the case and our reasons for concluding that reversal is
required are set forth below.

James McFarland, Jr. appeals his conviction of four counts of
robbery of local convenience stores in Fort Worth, Texas, in
violation of 18 U.S.C. § 1951 (the Hobbs Act) and four
corresponding counts of using and carrying a firearm during and in
relation to those robberies in violation of 18 U.S.C. § 924(c)(1).
He challenges his conviction on the Hobbs Act counts, asserting
that
the
evidence
was
insufficient
to
establish
the
constitutionally or statutorily required nexus to interstate
commerce and that the jury charge respecting this element was
defective. A panel of this court affirmed per curiam. United
States v. McFarland, 264 F.3d 557 (5th Cir. 2001). The panel
considered itself bound by our prior decision in United States v.
Robinson, 119 F.3d 205 (5th Cir. 1997), and United States v.
3
Hickman, 151 F.3d 446 (5th Cir. 1998), aff'd by an equally divided
en banc court, 179 F.3d 230 (5th Cir. 1999), cert. denied, 120
S.Ct. 2195 (2000). Judge Demoss specially concurred, 264 F.3d at
559-61, urging en banc reconsideration in light of the intervening
decisions in United States v. Morrison, 120 S.Ct. 1740 (2000), and
Jones v. United States, 120 S.Ct. 1904 (2000), the equally divided
nature of the Hickman en banc affirmance and Judge Higginbotham's
dissent therefrom. The Court subsequently took the case en banc.
United States v. McFarland, 281 F.3d 506 (5th Cir. 2002).
Facts and Procedural Background
McFarland was charged in a ten count indictment with five
Hobbs Act robbery counts, and five related section 924(c)(1)
counts, pertaining to robberies of local convenience stores
committed in Fort Worth, Texas, in November and December 1998.1 He
was acquitted of one of the robbery counts and of its related
section 924(c)(1) count.2 He was convicted on all the remaining
counts. The four Hobbs Act counts of conviction (counts one, five,
seven and nine) each alleged that McFarland "did knowingly and
willfully obstruct, delay, and affect interstate commerce and did
attempt to obstruct, delay and affect interstate commerce, by
robbery, to wit: the defendant did take and obtain property, namely
1McFarland had been arrested for the robberies by Fort Worth
police in late December 1998 and incarcerated in the Tarrant
county, Texas, jail. He was later transferred into federal
custody when the state dismissed its robbery charges against him
and the United States Attorney adopted the robbery offenses for
federal prosecution.
2The counts of acquittal were count three (robbery on
November 24, 1998 of Haynie's Inc.) and count four (the related §
924(c)(1) count).
4
United States Currency, from the person and in the presence of . .
. [name of store employee], an employee of . . . [name and address
of store], against his will by means of actual and threatened
force, violence, and fear of injury to his person."3
The stores involved, the amounts taken, in each case from the
cash register, and the relevant dates of the four robberies were
the following:
Count one, robbery November 20, 1998 of "Buy-Low" convenience
store in which "about $100, close to $100" was taken;
Count five, robbery December 3, 1998 of Gateway Discount
Liquor store in which "somewhere around 15 [$1,500] to $2,000" cash
was taken;
Count seven, robbery December 11, 1998, Quickway Shopping
3Although, as indicated, these counts each reference
"attempt," the jury charge makes no reference whatever to
"attempt," and these counts were submitted to the jury entirely
on a completed offense basis. There was no conspiracy allegation
or count, each Hobbs Act count was submitted to the jury as a
separate and distinct offense, and the jury was charged "A
separate crime is charged in each count of the indictment. Each
count and the evidence pertaining to it should be considered
separately." The defendant acted alone in each of the robberies,
although there is evidence indicating that in at least one of
them he was driven from the site just after the robbery by his
wife or girlfriend. There is no suggestion that the defendant
(or the wife or girlfriend) was other than a resident of Fort
Worth, or that he had any intention or purpose to do or
accomplish anything other than simply what he did, namely take
cash from each store robbed.
5
convenience store in which "about $50" cash was taken;4
Count nine, robbery December 21, 1998, Jeff Stop convenience
store, in which $145 cash was taken.
Each of these four stores was a retail store, three being
retail convenience stores and one a retail liquor store. There is
no evidence that any of the four stores made any sales or shipments
to points or purchasers outside of Texas, or, indeed made any sales
other than at the store premises to retail purchasers resident in
Fort Worth. There is no evidence that any of the stores was
located at (or near) any transportation facility, such as a bus or
train station or airport, or on an interstate highway. Three of
the stores­Buy-Low, Jeff Stop and Gateway Discount Liquor­were
apparently stand-alone, single location, concerns, unaffiliated, by
common ownership or otherwise, with any other concern. The
Quickway Shopping convenience store was apparently one of an
unstated number of such stores so named, and William Gumfory, owner
of the store robbed, may have owned some (or all) of the other
4"About $50" is the testimony of Rosa Candanosa, the
employee on duty at the store when the robbery took place who
took the money from the cash register and handed it to the
defendant. The then store owner, William Gumfory, who at the
time of trial in March 2000 had been retired for an unstated
length of time, testified he was not at the store when the
robbery occurred. When asked by the prosecution "can you tell us
approximately how much your store was robbed the day Rosa
Candanosa was working" he replied "I really don't recall, but I
would say in the neighborhood of $100." No further precision was
supplied nor is there any explanation of how or on what basis the
"in the neighborhood of $100" was arrived at.
6
Quickway Shopping convenience stores.5 There is no evidence that
any of the four robbed stores (or any Quickway Shopping store) had
any facilities, property, employees, bank accounts or activities
outside of Fort Worth, or was owned, in whole or in part, by any
one not a Fort Worth resident.
Each of the four retail stores sold items of merchandise some
of which the evidence showed were originally manufactured or
processed outside of Texas.6 As to none of the three convenience
stores was there any evidence indicating what fraction or
percentage of their sales was of or allocable to items which had
been manufactured or processed out of Texas, or what was the total
dollar amount either of such sales or of all sales at the
particular store. As to the Gateway Discount Liquor store, one of
the three Texas wholesalers who supplied it testified that ninety-
five percent of what he distributed both generally and to that
particular store "came from outside the state of Texas" and that a
5The evidence in this respect is sparse, consisting only of
the following. William Gumfory replied "That is correct" to the
prosecutor's question "Was one of the convenience stores that you
owned Quickway Convenience Store shopping on 245 Bailey Fort
Worth, Texas" [The store robbed on December 11, 1998]. And, a
Weatherford, Texas, wholesaler testified that "we supplied
Quickway Convenience Stores as a group," that he supplied the
Quickway store at 245 Bailey Street, had long done business with
Mr. Gumfory, and answered "yes" to the prosecutor's question did
he "rely on Mr. Gumfory's stores, at least in the December `98
time frame, and stores like that, in conducting your business?"
6Such out-of-state items included the following. The Buy-
Low store sold cigarettes, Coors beer and Gatorade. The Quickway
Shopping store sold cigarettes, Tropicana Orange Juice, Coors
beer, Gatorade, Nabisco snacks, Anacin and Purina dog food. The
Jeff Stop sold cigarettes, Tropicana Orange Juice, Coors beer,
Anacin, and Purina dog food. The Gateway Discount Liquor store
sold various liquors produced outside of Texas.
7
very small amount of liquor or wine products was produced in Texas.
The only evidence as to the Gateway Discount Liquor Store's dollar
volume of sales and purchases was that it had $26,640.69 sales and
$23,084.73 purchases from November 17 to November 30, 1998, and
$34,910.03 sales and $36,547.67 purchases from December 1, 1998
through December 17, 1998, and that in the retail liquor business
people start buying after Thanksgiving and the busiest time of year
is from October through December.
There was no evidence that either the Buy-Low store or the
Jeff Store acquired any of their inventory from sources outside of
Texas, as opposed, for example, to acquiring it from a Texas
wholesaler. Indeed, there was no evidence whatever as to how or
from whom or where or on what basis either of those two stores
acquired their inventory, except that they purchased it. The only
evidence in this respect as to Gateway Discount Liquor is that it
purchased its inventory from three Texas wholesalers, as required
by Texas law. The only one of these three wholesalers who
testified stated "I pay for that product beforehand, and its mine
to distribute and sell and collect." Quickway Shopping purchased
its merchandise inventory from a Weatherford, Texas, wholesaler,
Hartnett Company, which in turn had purchased items including
Tropicana juices from Florida, Wrigley's Gum and Gatorade from
Chicago, and Purina dog food from Oklahoma. The goods Hartnett
Company acquires come to a warehouse in Texas. It then sells them
to local retail stores (and to some stores in Kansas). Quickway
Shopping also sold money orders which it acquired from a company in
Minnesota, and Mr. Gumfory testified "any money orders we sold we
8
paid off the same day" and estimated "we sold probably 300 a
month." It is not clear whether the 300 figure refers to the total
number of individual money orders or the total face amount of the
money orders sold per month. Nor is it clear whether the reference
is to all Gumfory's Quickway Shopping stores or the particular one
robbed of $50 on December 11, 1998.
The owners when the robberies occurred of Buy-Low, Jeff Stop
and Gateway Discount Liquor stores testified that the percentage of
their gross sales proceeds used to restock inventory was seventy-
five percent for Gateway and Jeff Stop and seventy percent for
Gateway. The former owner of Quickway Shopping testified that his
profit margin on sales was approximately twenty-five percent,
meaning that "if we sold $20,000 a month, we would have to buy
$15,000 a month to replace it." These store owners each gave
brief, conclusory testimony that robbery of money from the store
would cause problems respecting, hurt or hinder inventory
purchases.7 However, there was no evidence that any of the stores
actually did purchase less, or delay any purchase, as a result of
7The Buy-Low owner answered "yes" when asked "when money is
stolen from you like that, does it cause you problems in rebuying
inventory." The Jeff Stop owner answered "yes" when asked "when
your store is robbed of its money, does that hurt your ability to
re-buy, repurchase merchandise to sell in your store." The
Quickway Shopping owner, asked "if your store is robbed of its
money, does that hinder your ability to replenish your stock,"
responded "well, naturally, we have less money to operate with."
The Gateway Discount Liquor owner, asked "if your store is robbed
of money and you don't have that money, it hurts your ability to
replenish your stock," replied "yes. It does hurt us."
Comparable general testimony was likewise given by the liquor
wholesaler, the wholesaler who supplied Quickway Shopping and a
Coors distributor; these wholesalers also gave general testimony
that if their customers didn't pay them they couldn't pay the
suppliers from whom they had purchased their products.
9
(or following) the charged robbery of that store. No questions in
that respect were asked of the Buy-Low or Jeff Stop owners, and no
one identified as a seller or supplier to either testified.8
Likewise, neither the Gateway Discount Liquor owner (whose sales
and purchases rose following the robbery) nor the former Quickway
Shopping owner, nor their wholesalers, ever testified that as a
result of the charged robbery the retail store actually reduced or
delayed any purchases, and their testimony suggests that they did
not.9 The Quickway Shopping former owner, when asked "were you not
able to buy anything you would normally buy because that $100
wasn't there," responded "we would be able to buy it, but we would
have to take the $100 from the bank or somewhere to keep our
balances in the correct proportion."10 The Gateway Discount Liquor
owner, when asked "after the $1,500 to $2,000 was taken from you by
the defendant, did it cause your business problems," responded
8The Buy-Low owner testified that at some unspecified time
prior to the March 2000 trial he had elected to close his store,
that "six or seven months" after the charged November 20, 1998
robbery, "we had another robbery," and that he closed his store
for two reasons, "first of all" because his landlord sold the
store premises and "number two" because "I'm tired of" being
robbed.
9We also observe that the wholesaler supplying Quickway
Shopping, when asked "how do you know a [customer] store has been
robbed" responded "because they will call us and need an extra
delivery because they don't have any product in their store."
There is no evidence that this ever occurred respecting any of
the four stores.
10The owner, when asked approximately how much was taken in
the robbery, had stated "I really don't recall, but I would say
in the neighborhood of $100." He was not present when the
robbery occurred. The employee on duty testified that "about
$50" was taken. There is no other evidence as to the amount
taken (see note 4, supra).
10
"It kept me a little stretched. In business every day
sales are ringing, but we have to overstretch some bills
and tell the distributor that we won't be able to pay you
today, but we'll pay you in the next two or three days."
Apart from the just above quoted testimony of the Gateway Discount
Liquor owner, there was no evidence that any of the robberies
resulted in any of the victim stores even slightly delaying any
payment to any party as a result of the charged robberies.
McFarland made and renewed timely motions for judgment of
acquittal on the grounds, inter alia, that the required nexus to
interstate commerce was not shown as to any of the Hobbs Act
counts. These motions were overruled. The trial court's jury
charge instructed, with reference to the Hobbs Act counts, that,
among other things:
"If you decide that there is any effect at all of [sic]
interstate commerce, then that is enough to satisfy this
element. The effect can be minimal. A showing that a
business regularly buys goods from out of state allows an
inference that a robbery may impair a future purchase .
. . . If you find beyond a reasonable doubt that the
defendant's conduct affected interstate commerce, then
you may conclude that the government has met its burden
of proof as to the interstate commerce element of the
offense."
McFarland objected to the word "any" in the first sentence above
quoted, objected to the sentence "the effect can be minimal," and
to the failure to include the word "substantially," as he had
previously requested, between "conduct" and "interstate commerce"
in the last above quoted sentence. These objections were all
overruled.
Discussion
As noted, the principal issue presented is whether the Hobbs
Act extends, or may be applied consistent with the limitations of
11
the Commerce Clause reflected by Lopez and Morrison, to these
robberies of local retail stores.
I. The Act, its history and Supreme Court interpretation
The Hobbs Act, 18 U.S.C. § 1951, provides in relevant part:
" (a) Whoever 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, or commits or threatens
physical violence to any person or property in
furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this title
or imprisoned not more than twenty years, or both.
(b) As used in this section­
. . .
(3) The term "commerce" means commerce
within the District of Columbia, or any
Territory or Possession of the United States;
all commerce between any point in a State,
Territory, Possession, or the District of
Columbia and any point outside thereof; 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."11
11The balance of the statute consists of paragraphs (1) and
(2) of subsection (b), reading as follows:
" (1) The term `robbery' means the unlawful taking or
obtaining of personal property from the person or in
the presence of another, against his will, by means of
actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property,
or property in his custody or possession, or the person
or property of a relative or member of his family or of
anyone in his company at the time of the taking or
obtaining.
(2) The term `extortion' means the obtaining of
property from another, with his consent, induced by
wrongful use of actual or threatened force, violence,
or fear, or under color of official right."
and subsection (c), which provides: " (c) This section shall not
be construed to repeal, modify or affect section 17 of Title 15,
12
It was originally enacted July 3, 1946, ch. 537, Pub. L. 486,
60 Stat. 420,12 as an amendment to the generally similar Anti-
Racketeering Act of June 18, 1934 (the 1934 Act), Pub. L. 376, 48
Stat. 979-80.13 The Hobbs Act was occasioned by the holding in
United States v. Local 807, 62 S.Ct. 642 (1942) that the 1934 Act,
by virtue of its exclusion relating to an employer's payment of
wages to an employee and its provision indicating an intent not to
diminish union rights, did not apply to the activities of members
of a New York City truck drivers union who, by violence or threats,
extracted payments for themselves from out-of-state truckers in
return for the unwanted and superfluous service of driving the
trucks to and from the city. Id., at 643-44, 649; United States v.
Enmons, 99 S.Ct. 1007, 1011 (1973) ("[A]s frequently emphasized on
the floor of the House, the limited effect of the bill was to shut
off the possibility opened by the Local 807 case, that union
members could use their protected status to exact payments from
sections 52, 101-115, 151-166 of Title 29 or sections 151-188 of
Title 45."
12In the 1948 revision and codification of Title 18, purely
formal, stylistic changes were made to the Hobbs Act (largely
reordering and consolidating its subsections and paragraphs).
June 25, 1948, Pub. L. 772, c. 645, 62 Stat. 793-794. In 1994
the words immediately following "fined" in subsection (a) were
changed from "not more than $10,000" to "under this title."
Sept. 13, 1994, Pub. L. 103-322, Title XXXIII, § 330016(1)(L),
108 Stat. 2147.
13The 1934 Act was subsequently codified, without
substantive change, as §§ 420a through 420e of Title 18, U.S.
Code 1940 Ed.
13
employers for imposed, unwanted and superfluous services.").14
The Senate Report on S. 2248, which (as amended) became the
1934 Act, states that "the nearest approach to prosecution of
racketeers as such has been under the Sherman Antitrust Act" but
such prosecutions have been hampered by the requirement of proving
conspiracy or monopoly and by being merely a misdemeanor, and that
the proposed bill "is designed to avoid many of the embarrassing
limitations . . . of the Sherman Act, and to extend Federal
jurisdiction over all restraints of any commerce within the scope
14See also United States v. Green, 76 S.Ct. 522, 525, 526
(1956) ("The legislative history makes clear that the new [Hobbs]
Act was meant to eliminate any grounds for future judicial
conclusions that Congress did not intend to cover the employer-
employee relationship;" "The city truckers in the Local 807 case
similarly were trying by force to get jobs from the out-of-state
truckers by threats and violence"); H.R. Rep. 238, 79th Cong.,
1st Sess. (1945) (reporting favorably H.R. 32 which became the
Hobbs Act, the report consisting mostly of verbatim quotation of
the entire Local 807 majority opinion and dissent); 89 Cong. Rec.
3202 (1943) (". . . it is the intention of the Committee on the
Judiciary to enact legislation for one purpose, and one purpose
alone, namely, to correct the unfortunate decision in the Local
807 case") (Rep. Walter); 91 Cong. Rec. 11841-11842 (1945) ("I
want it distinctly understood that the legislation under
consideration is designed to meet one situation and one situation
alone. . . . Let us see what that situation is. Unfortunately,
the Supreme Court in the famous Local 807 case by a very strained
construction . . .") (Rep. Walter); 91 Cong. Rec. 11841 (1945)
("The sole purpose of the bill . . . is to undo the outrageous
opinion of the Supreme Court in the Teamsters Union case where
that Court legitimatized highway robbery committed by a labor
goon") (Rep. Cox); 91 Cong. Rec. 11900 (1945) ("This bill is
designed simply to prevent both union members and nonunion people
from making use of robbery and extortion under the guise of
obtaining wages in the obstruction of interstate commerce. That
is all it does. . . . this bill is made necessary by the amazing
decision of the Supreme Court in the case of the United States
against Teamsters Union 807 . . . That is all this bill does. We
think a mistake was made by the Supreme Court. We are attempting
to correct it . . .") (Rep. Hancock).
The Congressional Record does not reflect any Senate debate
or discussion of the Hobbs Act.
14
of the Federal Government's constitutional powers." S. Rep. 532,
73rd Cong., 2nd Sess. (1934). The House Report on S. 2248, which
recommends a rewritten form of S. 2248, states "this is the so-
called `antiracketeering bill' for the suppression of racketeering
in interstate commerce," and quotes a memorandum from Attorney
General Cummings noting that the bill, with the suggested
amendments, had been approved by representatives of organized labor
and that "The Sherman Antitrust Act is too restricted in its terms
and the penalties thereunder are too moderate to make that act an
effective weapon in prosecuting racketeers. The antiracketeering
bill would extend the Federal jurisdiction in those cases where
racketeering acts are related to interstate commerce and are
therefore of concern to the Nation as a whole." H. Rep. 1833, 73rd
Cong., 2nd Sess. (1934). Despite the breadth of some of this
language, it may be seriously doubted that Congress then
contemplated that it was making a federal crime the "plain vanilla"
cash robbery from a local retail store of the sort here involved.
Moreover, at that time the federal government's commerce power was
generally viewed far less expansively than it later came to be.
See Lopez, 115 S.Ct. at 1628. The then view of the commerce power
is also suggested by S. Rep. 1189, 75th Cong., 1st Sess. (1937),
the report of the principal congressional committee (the Copeland
Committee) working on the 1934 Act (see United States v. Culbert,
98 S.Ct. 1112, 1115 & n.6 (1978)), recounting its investigations,
commencing in 1933, into racketeering and the recommendations it
had made for legislation (including the 1934 Act). This report
reflects an understanding that there were meaningful limits on the
15
commerce power. For example, the report mentions the "Poultry
Racket" "practiced upon the live-poultry business in New York
City," to which the "poultry comes from the Southern and Midwestern
states," and, due to the rackets, the charge for shipping a carload
of poultry from Chicago to New York was less than the charge for
its unloading and delivery in New York City. Id. at 16, 17. The
report notes "[w]hile some phases of the poultry racket were of a
local nature and not within Federal jurisdiction, the committee
felt that insofar as the transportation and distribution of live
poultry was interstate in character, the necessary legislation
should be enacted. . . ." Id. at 18 (emphasis added). The report
also discusses "the `kick-back' racket . . . that nefarious
practice of requiring the employee to give back to his employer a
percentage of his earnings," id., observes, respecting the "kick-
back racket," that "a great proportion of the complaints came from
the building trades" but "[i]t is, of course, practiced in other
industries," id. at 19, and concludes, respecting the kick-back
racket, that: "After a thorough study of the testimony given and
the complaints made, the committee concluded that the majority of
the cases presented were of a local nature and were not within the
jurisdiction of the Federal Government. But it was decided that
the committee could effectuate the purpose of certain Federal
statutes concerning rates of wages to be paid on work done under
[Federal] Government contracts." Id. at 20 (emphasis added).15
15We are aware of the language in Judge Learned Hand's
opinion in United States v. Local 807, 118 F.2d 684 (2d Cir.
1941), aff'd, United States v. Local 807, 62 S.Ct. 642 (1942),
where, in the course of reversing the convictions of the union
16
truckers for violating the 1934 Act, he remarked "[f]or a number
of years before 1934­at least in the City of New York­the levy of
blackmail upon industry, especially upon relatively small shops,
had become very serious, and the local authorities either would
not, or could not, check it. . . . It was, at least primarily, to
check such Camorras that Congress passed this measure [the 1934
Act]." 118 F.2d at 687-88. In United States v. Staszcuk, 517
F.2d 53 (7th Cir. 1975), the en banc Seventh Circuit, in
upholding (over three dissents) a Hobbs Act conviction for
extorting $3,000 from a property owner to procure a zoning change
authorizing construction of an animal hospital (which would have
involved importing equipment from other states) despite the fact
that the owner, for unrelated reasons, later elected not to build
the hospital and improved the property with other construction
which would have been permitted without the zoning change, relied
on this language of Judge Hand's to broadly construe the Hobbs
Act's commerce coverage, Straszcuk at 57, in support of its
ultimate conclusion to affirm even though "the record
demonstrates the extortion had no actual effect on commerce."
Id. at 60. We attach no significance to Judge Hand's quoted
language. In the first place, Judge Hand in the passage in
question was not addressing the matter of an interstate commerce
nexus­which was plain and undisputed in the case before him­but
was rather distinguishing labor related extortion from other
kinds. Further, it is entirely unclear what he meant­especially
as it might bear on interstate commerce­by "industry" and
"relatively small shops." And, Judge Hand cites absolutely
nothing­no legislative history, no publications, nor anything
else­in support of his quoted observations (nor is any such
support cited in Staszcuk). Finally, the quoted passage in Judge
Hand's opinion was not cited or alluded to, or anything similar
to it stated, by the Supreme Court in the Local 807 case (or in
any other case of which we are aware). Doubtless in 1933 and
1934 there was great concern about rackets and crime, but that
does not suggest that Congress had a broad view of its Commerce
Clause powers or intended to legislate in matters "of a local
nature." In addition to the passages of the Copeland Committee
report cited in the text above, we also note the following:
"Demands in great numbers for all types of
investigations, into all kinds of wrongs, reached the
committee. These varied from requests that the
committee investigate the internal affairs of
municipalities, to requests that it look into specific
financial transactions, alleged unconscionable mortgage
foreclosures, and the like. The public generally
seemed to be unaware of, or at least not alive to, the
jurisdictional boundaries in this field created by the
constitutional limitations on the power of Congress.
. . .
[I]t was clear that the committee was not intended as a
superpolice, nor as a prosecuting or judicial body for
17
By the time the Hobbs Act eventually passed, the Supreme Court
had already begun its articulation of a Commerce Clause power
greatly expanded over that as previously defined. See Lopez, 115
S.Ct. at 1628. However, this does not seem to have been a matter
at all the subject of consideration by Congress in enacting the
Hobbs Act, and the Act was merely directed at changing the result
in the Local 807 case. See note 14 and accompanying text, supra.
The wording of the Hobbs Act did not in any presently meaningful
way change the 1934 Act's interstate commerce nexus requirement.16
the supervision and investigation of the activities of
local authorities. On the contrary, the subcommittee
was organized to consider ways and means by which the
Federal Government might aid in the suppression of
rackets and racketeering, and, therefore, its activity
would have to be limited for the most part to matters
falling within the categories of interstate commerce
and use of the mails."
Id. at 2.
16The 1934 Act defined "trade or commerce" as "trade or
commerce between any States, with foreign nations, in the
District of Columbia, in any Territory of the United States,
between any such Territory or the District of Columbia and any
state or other Territory, and all other commerce over which the
United States has constitutional jurisdiction." The Hobbs Act
definition is of the term "commerce" instead of the 1934 Act's
"trade or commerce," defined "Territory" as meaning "any
Territory or possession of the United States," omitted the word
"constitutional" just before "jurisdiction," and added the
category "between points within the same State, Territory, or the
District of Columbia but through any place outside thereof." The
Hobbs Act definition is otherwise the same as in the 1934 Act.
The Hobbs Act's addition of the latter category, if meaningful at
all, would merely appear to suggest concern that without it
something might possibly have been inadvertently excluded. The
concluding "all other commerce" clause in the Hobbs Act (and in
the 1934 Act) would appear to include commerce between points in
a single State and an Indian Tribe within that state, see, e.g.,
Morton v. Moncari, 94 S.Ct. 2474, 2483 (1974); Perrin v. United
States, 34 S.Ct. 388, 389 (1914), and commerce between points in
the same state by a vessel traveling along the portion of a
18
Nor is any more expansive relation to interstate commerce
suggested by the Congressional committee reports on H.R. 32, the
bill which became the Hobbs Act. The House Committee on the
Judiciary report states that the bill is a "successor" to similar
bills introduced in the 77th and 78th Congresses (the first not
acted on, the second passing the House but not acted on by the
Senate), and that the bill's purpose is "to prevent interference
with interstate commerce by robbery or extortion." H. Rep. 288,
79th Cong., 1st Sess. (1945), at 1. It goes on to say that the
bill
"is an amendment of the existing antiracketeering law
which was enacted in 1934. It was passed in an effort to
eliminate racketeering in relation to interstate
commerce, of concern to the Nation as a whole. That
statute came under examination of the Supreme Court in
United States v. Local 807, and the opinion in that case
is set out in full, both the majority opinion and the
dissent:", id. at 1, 2,
which opinions the report then proceeds to quote in full. Id. at
2-9. Thereafter, the report recites that the bill's objective "is
to prevent anyone from obstructing, delaying, or affecting
commerce, or the movement of any article or commodity in commerce
by robbery or extortion." Id. at 9. The concluding section of the
navigable waterway wholly within that state. See, e.g., Ex Parte
Garnett, 11 S.Ct. 840, 842 (1891).
The required nexus to commerce in the proscriptive section
of the 1934 Act ("Any person who, in connection with or in
relation to any act in any way or in any degree affecting trade
or commerce or any article or commodity moving or about to move
in trade or commerce") appears as broad as that of the comparable
provision in Hobbs Act ("whoever in any way or degree obstructs,
delays, or affects commerce, or the movement of any article or
commodity in commerce"), the latter essentially treating
"movement" as the equivalent of "moving or about to move," and
substituting "commerce" for "trade or commerce."
19
report commences by stating "The Congress does not need to be
reminded that the Constitution of the United States confers on it
the exclusive and unlimites [sic] power to regulate interstate
commerce," id. at 10 (emphasis added), that "the members of the
Constitutional Convention agreed that our Federal Government would
be destroyed if barriers should be erected in any way to impede the
free flow of interstate commerce," and, finally, that "This bill
would outlaw two kinds of criminal interference with interstate
commerce." Id. Certainly what this report is concerned with is
interference with the movement of articles in interstate commerce,
with interstate commerce itself.17
The debates in the House are wholly consistent with this.18
As previously observed, these debates reflect that the "sole"
purpose and effect of the Hobbs Act was to override the Local 807
case and remove the exemption from the 1934 Act which that case was
thought to create for union members. See note 14, supra, and
accompanying text. Two other aspects of these debates should be
mentioned.
First, the discussion of the evils the pending bill was
17The brief, half page Senate report does not point in any
different direction. Its only relevant statement is the
following:
"The purpose of this bill is to prevent interference
with interstate commerce by robbery or extortion, as
defined in the bill. . . . this bill is an amendment of
the existing law which was enacted in 1934. The
objective of the amendments is to prevent anyone from
obstructing, delaying, or affecting commerce, or the
movement of any article or commodity in commerce by
robbery or extortion."
18The Congressional Record does not reflect any debate or
discussion in the Senate.
20
designed to eliminate focused almost entirely on the interruption
of commodity shipments actually moving in interstate commerce,
principally agricultural commodities being carried by truck across
state lines.19
19See, e.g., 89 Cong. Rec. 3203 (1943) (Rep. Walter)
("Farmer after farmer in the eastern part of Pennsylvania has
been stopped at the entrance to the Holland Tunnel [into New
York], compelled to get off his truck and give to some man $9.40
to deliver that truck to a point where that farmer had been
delivering his produce for a great many years"); 91 Cong. Rec.
11902 (1945) (Rep. Walter) ("a processor from . . . Bethlehem
[Pa] . . . informed me he was no longer shipping articles to New
York by truck but was shipping them by train because he was
compelled to kick in . . . $10 for every load of his materials
that went into the gentleman's city"); id. at 11903 ("the
practice of members of that union to post themselves at the
bridges and at the Holland Tunnel. Here would come a farmer,
say, from North Carolina with a load of vegetables. The union
members would stop him at the bridge . . .") (Rep. Gwynne); id.
at 11904 ("some of us out in the country know something more
about New York . . . some of my [Pa.] neighbors are paying as
much as $90 a load to take their produce in and get out alive in
their trucks") (Rep. Gross); id. at 11905 ("The products of the
farms were being trucked from New Jersey, Pennsylvania, and
Maryland, and hundreds of these trucks were help up when they
approached the city limits of New York and especially the Holland
Tunnel") (Rep. Robsion); id. at 11906 ("These crimes are not
confined to racketeers in the labor movement. We have many
instances where one group of farmers has taken possession
unlawfully of the trucks of other farmers and overturned the
trucks and destroyed the produce of the others by violence and
fear and prevented the trucks moving in interstate commerce")
(Rep. Robsion); id. at 11910 (article from Dawson, Minnesota,
paper reciting that Dawson farmer sent to De Moines, Iowa, to
pick up machinery to install driers at Dawson elevators was
forced by Iowa labor groups to return to Dawson without his load
and to join union and pay dues "before they would permit him to
leave with his truck") (Rep. Anderson); id. at 11911 ("Let us
illustrate what we are proposing to stop by this measure we are
now considering. Here comes a farmer with a load of
produce­milk, butter, eggs, vegetables, . . . As they near a
State line in going to market to sell that produce a thug they
never saw before or a coterie of thugs comes up to the truck and
says, `Here, stop your truck.'") (Rep. Jennings); id. at 11917
("I want the farmers of this Nation protected from hijacking,
robbery, and assault when they deliver milk from New Jersey to
New York, or produce from South Carolina to New York") (Rep.
Rivers).
21
Other aspects of the debate likewise reflect an emphasis that
the bill applied only to interstate commerce, without any broad
reading of that concept. See, e.g., 89 Cong. Rec. 3210 (1943) ("It
is directed against robbery and extortion when used to obstruct the
free flow of goods in interstate commerce, no matter who the
offenders may be.") (Rep. Hancock); 91 Cong. Rec. 11843 (1943) (".
. . it is the duty of Congress to protect its citizens and the
people who use the highways in interstate commerce. Remember, this
proposal applies to interstate commerce only. . . . if interstate
commerce is being interfered with, and if the farmers and truckers,
who take food into New York from the surrounding territory and
States, must submit to the treatment outlined by Chief Justice
Stone, then it seems clear that it is the obligation of the
Congress to furnish national protection in these interstate
operations." (emphasis added) (Rep. Michener); id. (Rep. Graham.
"Is not this bill limited to interstate commerce alone?" Rep.
Michener. "Certainly."; emphasis added); id. (Rep. Robsion. "Would
this apply to those conditions in a number of other States where
they meet and overturn milk trucks and do other things like that?"
Rep. Michener. "This bill applies to interstate commerce only.";
emphasis added); id. at 11912 (". . . the sole and simple purpose,
the single purpose, of this bill is to do the best we can to
protect interstate commerce and free the highways and streets of
this country of robbers") (Rep. Hobbs). The following exchange is
similarly relevant:
"Mr. GRANGER. This applies only to interstate commerce,
does it not?
Mr. SPRINGER. It applies to interstate commerce.
22
Mr. GRANGER. It would not affect a farmer who picked up
produce within his own State and delivered it within his
own State? That would be intrastate commerce?
Mr. SPRINGER. Yes.
Mr. GRANGER. What is interstate commerce? Is a farmer
who crosses the State line with his own property engaged
in interstate commerce?
Mr. SPRINGER. There is no doubt but that he is engaged
in interstate commerce when he crosses a State line.
Mr. ROBSION of Kentucky. A transaction within a State
may be interstate commerce if it oppresses and interrupts
seriously or in a substantial way goods moving from one
State to another?
Mr. SPRINGER. The gentleman is entirely correct. That
has been defined by judicial decisions." Id. at 11910.
We are aware of nothing in the legislative history relating or
referring to the aggregation principle or anything comparable to it
as applicable to discrete intrastate actions which individually
have only a minimal, indirect and attenuated effect on interstate
commerce.
This legislative history strongly suggests to us that Congress
in enacting the Hobbs Act was concerned with protecting against
relatively direct obstruction of the actual movement of goods in
interstate commerce, and did not contemplate its application to
robberies of local retail stores such as those here.20 However, the
20Moreover, so far as we are aware the 1934 Act was never
applied to robberies of local retail stores such as those here,
and for many years the Hobbs Act apparently was not either. Cf.
United States v. Enmons, 93 S.Ct. 1007, 10015 (1973) ("It is
unlikely that if Congress had indeed wrought such a major
expansion of federal criminal jurisdiction in enacting the Hobbs
Act, its action would have so long passed unobserved;"also
invoking principles of strict construction of criminal statutes
and reluctance to assume significant change in relation between
federal and state criminal jurisdiction in declining broad
construction of Hobbs Act). Further, the "depletion of assets"
theory, which is essentially the basis for Hobbs Act prosecutions
such as that in this case, seems to have had its origin in United
States v. Provenzano, 334 F.2d 678 (3d Cir. 1964), where, in
upholding a "depletion of assets" jury charge in a conviction for
extorting $30,000 from an interstate trucking company to prevent
23
Supreme Court in Stirone v. United States, 80 S.Ct. 270 (1960),
stated that the Hobbs "Act speaks in broad language, manifesting a
purpose to use all the constitutional power Congress has to punish
interference with interstate commerce by extortion, robbery or
physical violence. The Act outlaws such interference `in any way
or degree.' 18 U.S.C. § 1951(a) . . ." Id. at 272. The victim
there was extorted of some $31,000 to avoid cancellation of his
contract to supply from his Pennsylvania plant concrete for the
construction of a Pennsylvania steel mill; the victim depended on
shipments of sand to him from outside of Pennsylvania to make the
concrete, and such shipments would have slackened or stopped had
his contract to supply the steel mill job been cancelled. Id. The
Court observed that "[i]t was to free commerce from such
destructive burdens that the Hobbs Act was passed," citing United
States v. Green, 76 S.Ct. 522 (1956). Stirone, at 272.21 Stirone
labor disruption of its terminal, the court stated:
"We can perceive no reason why extortive payments, in
substantial amounts, paid as here from the treasury of
a company engaged in interstate commerce in order to
avoid obstruction of the company's interstate business
should not be deemed to affect commerce and therefore
to lie within the proscription of the Hobbs Act. . . .
This was the substance of the court's charge. We hold
it to have been a correct one in the light of all the
circumstances." Id. at 693 (emphasis added).
In Esperti v. United States, 406 F.2d 148 (5th Cir. 1969), we
relied on Provenzano's depletion of assets theory in sustaining a
Hobbs Act conviction for robbery of $2,000 (proceeds of a sale to
a Chicago customer) and attempted extortion (to collect a $25,000
alleged debt to a New Yorker), the Florida victim being "Red Ball
Merchandising" which "sold close-out merchandise" and whose
"interstate sales and purchases amounted to ninety per cent of
its business."
21In Green the Court held the Hobbs Act applied to a union
agent's threats of violence to force an employer to pay union
members for unwanted and superfluous services notwithstanding
24
went on to state that it did not have to decide the "more difficult
question" of whether an adequate interstate commerce nexus would
have been shown by the evidence that the steel mill would produce
steel to be shipped in interstate commerce. Id. at 272. Later, in
United States v. Culbert, 98 S.Ct. 1112 (1978), the court stated
that the "in any way or degree . . . affected commerce . . . by
robbery or extortion" words of the Hobbs Act "do not lend
themselves to restrictive interpretation," and proceeded to quote
Stirone's statement that they manifest "`a purpose to use all the
constitutional power Congress has to punish interference with
interstate commerce by extortion, robbery or physical violence.'"
Culbert at 1113.22
that payments to the union or the agent personally were not
sought, noting that "The city truckers in the Local 807 case
similarly were trying by force to get jobs and pay from the out-
of-state truckers by threats and violence. The Hobbs Act was
meant to stop just such conduct." Green at 526. The Court went
on to observe "[w]e said in the Local 807 case that racketeering
affecting interstate commerce was within federal legislative
control." Id. Green then cites Cleveland v. United States, 67
S.Ct. 13 (1946) (upholding Mann Act convictions for transporting
a "plural wife across state lines" for purposes of cohabitation,
stating "[t]he power of Congress over the instrumentalities of
interstate commerce is plenary," id. at 16) and Mitchell v.
Vollmer & Co., 75 S.Ct. 860 (1955) (workers on project improving
the Algiers Lock, a unit of the Gulf Intercoastal Waterway, are
"engaged in commerce" for purposes of overtime under the FLSA;
"the work of improving existing facilities of interstate
commerce" is activity in commerce just as "[r]epair of facilities
of interstate commerce is activity `in commerce'").
22Culbert involved a Hobbs Act conviction for attempting to
extort "$100,000 from a federally insured bank." Id. Cf.
Westfall v. United States, 47 S.Ct. 629 (1927) (defrauding state
bank which is a member of the Federal Reserve System is properly
a federal offense). A divided Ninth Circuit panel had reversed
the conviction because there was no evidence "that the attempted
extortion of the bank assets related, in any way, to
`racketeering.'" United States v. Culbert, 548 F.2d 1355, 1357
(9th Cir. 1977). The Ninth Circuit reasoned that the Hobbs Act
25
In Jones v. United States, 120 S.Ct. 1904 (2000), the Court
construed the federal arson statute, 18 U.S.C. § 844(i), as not
extending to arson of a home insured by an out-of-state insurer,
financed by an out-of-state lender, and furnished with gas from
out-of-state, relying in part on the principle of avoiding a
statutory construction under which "`grave and doubtful
constitutional questions arise,'" and stating "[g]iven the concerns
carried forward the 1934 Act's antiracketeering purpose and that
"[g]iven the applicable de minimus burden on interstate commerce
rule . . . a contrary interpretation of the Act would justify
usurpation of virtually the entire criminal jurisdiction of the
states." Id. (the Ninth Circuit also relied on the similar
conclusions of the Sixth Circuit in United States v. Yokely, 542
F.2d 300 (6th Cir. 1976)). The Supreme Court reversed the Ninth
Circuit, holding that "racketeering" was not an element of an
offense under the Hobbs Act, relying on several grounds: first,
"[n]othing on the face of the statute suggests a congressional
intent to limit its coverage to . . . `racketeering'" and the
relevant statutory words "do not lend themselves to restrictive
interpretation," id. at 1113; second, the statute carefully
defines terms, but makes no "reference to racketeering­much less
any definition of the word," id. at 1114; third, making
racketeering an element" might create serious constitutional
problems, in view of the absence of any definition of
racketeering in the statute," id.; fourth, the legislative
history of the 1934 Act reflects that "Congress simply did not
intend to make racketeering a separate, unstated element of an
Anti-Racketeering Act violation," id. at 1115; fifth, the Hobbs
Act's purpose was simply to correct the "perceived deficiency" in
the 1934 Act (reflected by the Local 807 case) and "that
deficiency had nothing to do with the element of racketeering,"
id.; sixth, the rule of lenity did not apply, as it only applies
"`when we are uncertain about the statute's meaning,'" id. at
1116; and seventh, Congress was well aware that state laws
prohibited robbery and extortion. Id. at 1117. In the latter
connection, we observe that the legislative history clearly
indicates that the statements made regarding state law
prohibition of robbery and extortion were directed at answering
the criticism that the proposed Hobbs Act was anti labor and
infringed the rights of labor (which was the major issue
respecting the Act), the answer being that the proposed statute
did not prohibit anything not already unlawful; the statements in
no way related to the nature of the required interstate commerce
nexus.
26
brought to the fore by Lopez, it is appropriate to avoid the
constitutional question that would arise were we to read § 844(i)
to render the `traditionally local criminal conduct' in which
petitioner Jones engaged `a matter for federal enforcement.'" Jones
at 1911, 1912. Accordingly, in Jones, the court read the words
"used in" in section 844(i) as modifying "any activity affecting
interstate . . . commerce," so that "an owner-occupied residence
not used for any commercial purpose does not qualify as property
`used in' commerce or commerce-affecting activity" within the
meaning of section 844(i). Id. at 1908, 1910-11. However, the
Hobbs Act contains no comparable special language upon which an
analogous limiting construction can be focused. It does not at all
differentiate between robberies which "in any way or degree
obstruct[], delay[], or affect[] commerce or the movement of any
article or commodity in commerce." Thus, driven by the above noted
language in Stirone and Culbert, we conclude that to determine
whether the Hobbs Act applies to these offenses we must examine the
limits of the commerce power as articulated by the Supreme Court in
Lopez and Morrison.
II. Lopez and Morrison applied to this Hobbs Act prosecution
A. Overview; Commerce Power Categories
In Lopez the Court "identified three broad categories of
activity that Congress may regulate under its commerce power,"
namely:
"First, Congress may regulate the use of the channels of
interstate commerce" (citing, inter alia, United States v. Darby,
61 S.Ct. 451 at 457 (1941), sustaining statute prohibiting shipment
27
in interstate commerce of goods produced for interstate commerce by
employees whose wages and hours do not conform to the requirements
of the Fair Labor Standards Act; statute not invalid even if its
motive was to regulate local wages not otherwise subject to
commerce power).
"Second, Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities" (listing as examples "`destruction of an
aircraft,'" "`thefts from interstate shipments,'" and Southern R.
Co. v. United States, 32 S.Ct. 2 (1914), upholding Safety Appliance
Act equipment requirements as applied to cars of interstate carrier
moving on interstate railroad line even though particular cars were
carrying only intrastate traffic).
Third, "Congress' commerce authority includes the power to
regulate those activities having a substantial relation to
interstate commerce . . . i.e. those activities that substantially
affect interstate commerce. . . .
Within this final category, admittedly, our case law has not
been clear whether an activity must `affect' or `substantially
affect' interstate commerce in order to be within Congress' power
to regulate it under the Commerce Clause. . . . We conclude,
consistent with the great weight of our case law, that the proper
test requires an analysis of whether the regulated activity
`substantially affects' interstate commerce." United States v.
Lopez, 115 S.Ct. 1624, 1629-30 (1995).
Lopez held unconstitutional, as beyond Congress's power under
28
the Commerce Clause, the Gun-Free School Zones Act of 1990, 18
U.S.C. § 922(q) (1988 ed., Supp. V). It "quickly disposed of" the
first and second categories of congressional commerce power, noting
that section 922(q) clearly fell within neither and that "if §
922(q) is to be sustained, it must be under the third category as
a regulation of an activity that substantially affects interstate
commerce." Id. at 1630. It then went on to hold that the statute
likewise could not be sustained under the third category, rejecting
the Government's argument that "possession of a firearm in a local
school zone does indeed substantially affect interstate commerce."
Id. at 1632.
Some five years later in Morrison the Court reconfirmed
Lopez's Commerce Clause analysis and holding as well as its
articulation and description of the "`three broad categories of
activity that Congress may regulate under its commerce power.'"
Morrison at 1749. Morrison held unconstitutional, as beyond
Congress's power under the Commerce Clause, 42 U.S.C. § 13981, the
civil action portion of the Violence Against Women Act of 1994.23
Morrison observes that "[p]etitioners do not contend that these
cases fall within either of the first two categories of Commerce
Clause regulation. They seek to sustain § 13981 as a regulation of
activity that substantially affects interstate commerce. . . . [w]e
agree that this is the proper inquiry." Id. at 1749. The Court
held that section 13981 did not meet the requirements of the third
Lopez category, stating "petitioners' reasoning would allow
23Morrison also held § 13981 beyond Congress's power under §
5 of the Fourteenth Amendment. Id. at 1755 et seq.
29
Congress to regulate any crime so long as the nationwide,
aggregated impact of that crime has substantial effects on
employment, production, transit, or consumption," Morrison at 1752-
53, contrary to the constitutionally required "distinction between
what is truly national and what is truly local." Id. at 1754.24
B. Lopez category one.
This category­"use of the channels of interstate commerce"­is
clearly inapplicable to the present offenses, and the Government
does not contend otherwise.
C. Lopez category two.
The Government contends that these offenses fall within Lopez
category two because, according to the Government, the victim
stores were engaged in interstate commerce, relying on United
States v. Robertson, 115 S.Ct. 1732 (1995), and that therefore no
"substantial" effect on interstate commerce had to be shown.
For several reasons, we reject the Government's contention
that these are Lopez category two offenses. To begin with, simply
because a business is engaged to any extent in interstate commerce
does not alone suffice to bring regulation of any and all conduct
involving it within category two. That category applies to
"instrumentalities of interstate commerce," such as "an aircraft"
or a railroad line, and to "persons or things in interstate
commerce," such as "thefts from interstate shipments." Plainly, a
24Unlike the situation in Lopez, Congress in enacting §
13981 specifically invoked its powers under section 8 of Article
I of the Constitution, Morrison at 1748, and made numerous
findings regarding the adverse impact of gender motivated
violence on interstate commerce. Id. at 1752.
30
local retail store is not analogous to any of those.25 The
Government's argument would vastly expand Lopez's category two,
extending federal jurisdiction on a per se, categorical basis to a
broad range of matters such as shoplifting of a candy bar from any
business engaged in interstate commerce or children scuffling in
any such business's parking lot, and would also blur the
distinction between categories two and three. Moreover, we note
the Seventh Circuit's observation, rejecting the Government's
attempts to fit a Hobbs Act prosecution into Lopez category two,
that "[t]he Hobbs Act, however, falls within Lopez category three,"
at least where the conviction is sought to be sustained simply on
the theory that the victim was engaged in interstate commerce. See
United States v. Peterson, 236 F.3d 848, 856 (7th Cir. 2001).26
Nor do we agree that the Government's argument is supported by
Robertson. There the defendant was convicted of "various narcotics
offenses" and of violating 18 U.S.C. § 1962(a) (RICO) "by investing
the proceeds of those unlawful activities in the `acquisition of
any interest in, or the establishment or operation of, any
enterprise which is engaged in, or the activities of which affect,
25We respectfully disagree with the apparently contrary
conclusions of the divided panel in United States v. Harrington,
108 F.3d 1460, 1466, 1469-70 (D.C. Cir. 1997), and the seemingly
similar suggestion in United States v. Farmer, 73 F.3d 836 at 843
(8th Cir. 1966).
26So far as concerns application of the Hobbs Act to violent
interference with shipments actually moving or about to move in
interstate commerce (reflected in its "or the movement of any
article or commodity in commerce" prong, comparable to the 1934
Act's "or any article or commodity moving or about to move in
trade or commerce" language)­which was plainly at least the Hobbs
Act's primary purpose­Lopez category two would doubtless be the
appropriate category. Obviously, that is not the case here.
31
interstate or foreign commerce.'" Id. at 1732. The Ninth Circuit,
in a pre-Lopez decision, affirmed the narcotics convictions but
reversed the RICO conviction, holding that the RICO enterprise­an
Alaskan gold mine­was not shown to have "had more than an
incidental effect on interstate commerce" and hence did not meet
section 1962(a)'s "the activities of which affect, interstate . .
. commerce" requirement (without addressing the "engaged in . . .
interstate commerce" prong of section 1962(a)). United States v.
Robertson, 15 F.3d 862, 868 (9th Cir. 1994). The Ninth Circuit did
not even mention, let alone discuss, the Commerce Clause or the
limits of Congress's power thereunder. The Supreme Court, shortly
after Lopez, reversed the Ninth Circuit's reversal of the RICO
count, holding there was sufficient evidence that the gold mine was
"engaged in . . . interstate . . . commerce" for purposes of
section 1962(a). Robertson, 115 S.Ct. at 1733. It stated in this
connection:
". . . Robertson, who resided in Arizona, made a cash
payment of $125,000 for placer gold mining claims near
Fairbanks. He paid approximately $100,000 (in cash) for
mining equipment and supplies, some of which were
purchased in Los Angeles and transported to Alaska for
use in the mine. Robertson also hired and paid the
expenses for seven out-of-state employees to travel to
Alaska to work in the mine. . . . He again hired a number
of employees from outside Alaska to work in the mine.
. . .
Furthermore, Robertson, the mine's sole proprietor, took
$30,000 worth of gold, or 15% of the mine's total output,
with him out of the State.
Whether or not these activities met (and whether or not,
to bring the gold mine within the `affecting commerce'
provision of RICO, they would have to meet) the
requirement of substantially affecting interstate
commerce, they assuredly brought the gold mine within §
32
1962(a)'s alternative criterion of `any enterprise . . .
engaged in . . . interstate or foreign commerce.'" Id.
Robertson is a statutory construction case and does not purport to
make any constitutional holding or to address (or recognize as
being potentially before it) any constitutional issue, and it does
not mention Lopez or discuss its three categories of Commerce
Clause power.27
Finally, and in any event, we reject the underlying premise of
the Government's argument in this connection, namely that the
victim stores here were "engaged in" interstate commerce as the
Robertson Court understood and intended that phrase. Robertson's
principal illustrations of what is, and what is not, "engaged in
[interstate] commerce" are as follows:
"the Government proved that some . . . [equipment and
supplies] were purchased in California and transported to
Alaska for use in the mine's operations. Cf. United
States v. American Building Maintenance Industries, 422
U.S. 271, 285, 95 S.Ct. 2150, 2159, 45 L.Ed.2d 177 (1975)
(allegation that company had made local purchases of
equipment and supplies that were merely manufactured out
of state was insufficient to show that company was
"engaged in commerce" within the meaning of § 7 of the
Clayton Act).
. . .
As we said in American Building Maintenance, a
corporation is generally `engaged "in commerce"' when it
is itself `directly engaged in the production,
distribution, or acquisition of goods and services in
interstate commerce.' Id., at 283, 95 S.Ct., at 2158."
27Moreover, it is not clearly apparent that Congress's power
to criminalize an offender's use of the proceeds of his federal
narcotics offenses to invest in, establish or operate an
enterprise is necessarily dependent on the enterprise being
otherwise subject to Congress' power under the Commerce Clause.
See, e.g., United States v. Owens, 996 F.2d 59, 61 (5th Cir.
1993).
33
In American Building Maintenance the Court held summary judgment
was properly granted that the Benton janitorial service companies,
located in California, were not "engaged in [interstate] commerce,"
for purposes of section 7 of the Clayton Act, stating:
"[T]he Benton companies performed a substantial portion
[80% to 90%] of their janitorial services for enterprises
which were themselves clearly engaged in selling products
in interstate and international markets and in providing
interstate communication facilities. But simply
supplying localized services [in California] to a
corporation engaged in interstate commerce does not
satisfy the "in commerce" requirement of § 7.
To be engaged "in commerce" within the meaning of § 7, a
corporation must itself be directly engaged in the
production, distribution, or acquisition of goods or
services in interstate commerce.
. . .
Similarly, although the Benton companies used janitorial
equipment and supplies manufactured in large part outside
of California, they did not purchase them directly from
suppliers located in other States. [citation] Rather,
those products were purchased in intrastate transactions
from local distributors. . . . By the time the Benton
companies purchased their janitorial supplies, the flow
of commerce had ceased. See Schechter Corp. v. United
States, 295 U.S., at 542-543, 55 S.Ct. at 848." Id.,
2158-59 (emphasis added; footnote omitted).
Here there is no evidence that any of these local retail stores
made any sales other than at the store premises in Fort Worth or
any sales to any person or entity engaged in interstate commerce,
or had any operations, facilities or employees outside of Fort
Worth; nor is there any evidence that any of them acquired any of
their merchandise inventory other than from in-state wholesalers.28
28It is true that Quickway Shopping (one of which stores was
robbed of $50) sold some money orders which it purchased from a
company in Minnesota. But given that there is no evidence that
amount of these was other than insignificant­either absolutely or
as fraction of the store's total sales­we hold that this does not
34
If the Benton companies were not "engaged in" interstate commerce,
it necessarily follows, a fortiori, that these local retailers were
not.
D. Lopez category three.
We accordingly conclude that the issue of whether the Hobbs
Act is properly applied to these robberies turns on whether such
application meets the test of Lopez category three, as to which
"the proper test requires an analysis of whether the regulated
activity `substantially affects' interstate commerce." Id. at
1630.
The evidence does not reflect any particular, concrete effect
on interstate commerce that in fact actually resulted from any of
the four robberies. But the evidence does support the conclusions
that the victim stores each regularly used their funds to, among
other things, purchase from local wholesalers inventory which
included (but was not shown to be limited to) items manufactured
out-of-state, and that the robberies reduced, by the amounts taken
($50, $100, $145, $1,500-2,000), the funds the stores would, but
for the robbery, otherwise thereafter have had available for use in
(or withdrawal from) their respective businesses, including (but
not limited to) use for inventory purchasing. The evidence also
shows that any reduction in a retailer's purchases from its
wholesaler would reduce the funds the wholesaler would otherwise
constitute Quickway Shopping as being engaged in interstate
commerce, certainly not for purposes of bringing the robbery of
it within Lopez category two. Cf. American Building Maintenance
at 2153 and notes 3 and 4 (referring to "negligible" use of
interstate facilities and "insignificant" interstate purchases).
35
thereafter have had available for use in (or withdrawal from) its
business, including (but not limited to) use for purchase of out-
of-state merchandise. Cf. United States v. Atcheson, 94 F.3d 1237,
1243 (9th Cir. 1996) ("To establish a de minimis effect on
interstate commerce, the Government need not show that a
defendant's acts actually affected interstate commerce . . .
Rather, the jurisdictional requirement is satisfied `by proof of a
probable or potential impact'"). Assuming that all this suffices
to show that each individual robbery did probably or potentially
have some minimal, attenuated and indirect affect on interstate
commerce, it is clear that none individually had what could fairly
be described as a "substantial" affect (actual, probable or
potential).
The Government in this connection relies on the "aggregation"
principle under which in determining whether the affect on
interstate commerce is "substantial" the focus is not upon any one
individual instance of the activity covered by the regulation but
is rather upon whether the aggregate of all covered instances as a
whole substantially affects interstate commerce. The validity of
that general principle has long been clearly established, and is
recognized in both Lopez and Morrison. At the same time, however,
each of those decisions holds that the principle is not of
universal or unlimited application, and refused to apply it to
sustain the statutes there under consideration. Thus, in Morrison
the Court recognized that the aggregate of instances of gender-
motive violence within the scope of section 13981 did ultimately
have a large effect on interstate commerce, id. at 1752, but
36
nevertheless held that the aggregation principle could not be
applied, stating:
"We accordingly reject the argument that Congress may
regulate non-economic, violent criminal conduct based
solely on that conduct's aggregate effect on interstate
commerce. The Constitution requires a distinction
between what is truly national and what is truly local.
. . . The regulation and punishment of intrastate
violence that is not directed at the instrumentalities,
channels, or goods involved in interstate commerce has
always been the province of the States." Id. at 1754.
The central question in this case, then, is whether this Hobbs
Act prosecution can be sustained under the aggregation theory. We
now turn to that question.
E. Hobbs Act jurisdictional element.
Because the Hobbs Act has an interstate commerce related
jurisdictional element and the statutes at issue in Lopez and
Morrison contained no comparable provision, as the Supreme Court's
opinions in those cases emphasized, some of our sister circuits
have relied on this distinction (among other considerations) in
holding that Lopez and Morrison are either largely inapplicable to
Hobbs Act cases, or do not require that a substantial effect on
interstate commerce be shown in Hobbs Act prosecutions falling
under Lopez category three.29 We respectfully disagree. Such an
approach would in effect either create a fourth category of
commerce clause power, contrary to the plainly comprehensive three
category approach taken in Lopez and Morrison, or would do away
with the "substantially affect" requirement which those opinions so
29See United States v. Gray, 260 F.3d 1267, 1274 (11th Cir.
2001); United States v. Malone, 222 F.3d 1286, 1295 (10th Cir.
2000). See also United States v. Harrington, 108 F.3d 1460, 1465
(D.C. Cir. 1997).
37
clearly state is constitutionally mandated in category three cases.
Congress lacks the power to provide for a lesser relation to
interstate commerce in that category of case simply by including a
jurisdictional provision. Otherwise the principles enunciated in
Lopez and Morrison would be essentially meaningless. We agree with
the Seventh Circuit's observations in this respect in United States
v. Wilson, 73 F.3d 675, 685 (7th Cir. 1995).30
This is not to say that the Hobbs Act jurisdictional element
serves no function. It allows a determination in each case, based
on its particular facts and characteristics, whether in that case
application of the statute is consistent with Congress's Commerce
Clause power. Because of that jurisdictional element the statute
is not properly subject to being facially invalidated, which was
essentially the result in Lopez and Morrison where the statutes
involved lacked any jurisdictional element.
30The Wilson court stated: "In discussing the lack of a
jurisdictional element in Lopez, the court simply did not state
or imply that all criminal statutes must have such an element, or
that all statutes with such an element would be constitutional,
or that any statute without such an element is per se
unconstitutional." Id. (emphasis added). We quoted that
sentence from Wilson with approval in United States v. Bird, 124
F.3d 667, 675 (5th Cir. 1997).
Moreover, several decisions have indicated that Lopez and/or
Morrison preclude most Hobbs Act prosecutions for robberies of
individuals. See United States v. Lynch, 282 F.3d 1049, 1052-55
(9th Cir. 2002); United States v. Wang, 222 F.3d 243, 239-40 (6th
Cir. 2000); United States v. Collins, 40 F.3d 95, 100-101 (5th
Cir. 1994) (applying this Court's decision in Lopez, 2 F.3d 1342
(5th Cir. 1993), later affirmed by the Supreme Court). See also
United States v. Quigley, 53 F.3d 908, 910 (8th Cir. 1995)
(relying on Collins). Obviously, these decisions proceed on the
assumption that Lopez and/or Morrison speak to Hobbs Act
prosecutions in Lopez category three cases notwithstanding the
presence of a jurisdictional element in the Hobbs Act and the
absence of such an element in the statutes involved in Lopez and
Morrison.
38
F. Regulation of commercial or economic activity.
Some of our sister circuits have held that the refusal of
Lopez and Morrison to apply the aggregation principle to sustain
the statutes there under consideration is wholly inapplicable to
the Hobbs Act because those statutes proscribed offenses which were
not commercial or economic while robbery (or extortion, but we here
deal only with robbery), which the Hobbs Act proscribes, is a
commercial or economic activity as it always involves taking
"personal property" from another person. § 1951(b)(1). See United
States v. Gray, 260 F.3d 1267, 1274 (11th Cir. 2001) ("Unlike the
statute at issue in Morrison, the Hobbs Act plainly and undeniably
regulates economic activity"); United States v. Malone, 222 F.3d
1286, 1295 (10th Cir. 2000) ("Unlike the statutes at issue in
Morrison and Lopez, the Hobbs Act regulates economic activity").
But see United States v. Peterson, 236 F.3d 848, 852 (7th Cir.
2001) (". . . the Hobbs Act does not suggest that robbery is an
economic activity").
We respectfully take a somewhat different view of the matter.
The approach of these cases seems to be that whenever the
regulated activity is "economic," then, for purposes of Lopez
category three cases, there are never any limits whatever to use of
the aggregation theory and it may always be employed to satisfy
(and as practical matter will always satisfy) the "substantially"
affects requirement of Lopez category three.31 While this would
31Where only Lopez categories one or two are involved, a
showing of "substantially affects" is not required, and so
whether aggregation is available is generally irrelevant.
39
seem, at least as a practical matter, to limit Lopez category three
to cases where the regulated activity was non-economic and to
obliterate any distinction in "economic" cases between the Lopez
categories, we need not and do not reach that issue.
Assuming, arguendo, that there is a class of category three
cases as to which there are no restraints whatever on aggregation,
we conclude that such a class would exclude instances where "the
regulated activity" is not properly described as "commercial" or
"economic" in the same general sense as "commercial."32
Lopez and Morrison each refer to both "commercial" and
"economic" activities and appear to use the terms synonymously.
Thus Lopez states that section 922(q) does not "regulate[] a
commercial activity" id. at 1626 (quoted in Morrison id. 1750), and
that
"Section 922(q) is not an essential part of a larger
regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity
were regulated. It cannot, therefore, be sustained under
our cases upholding regulations of activities that arise
out of or are connected with a commercial transaction,
which viewed in the aggregate, substantially affects
interstate commerce," id. at 1631 (emphasis added),
and that
32If "the regulated activity" is not "commercial" (or the
regulation does not govern the conduct of a wholly or partially
commercial enterprise or endeavor), that means merely that, in
Lopez category three cases where there must be a "substantially
affects" showing, then, whether or not aggregation is available
depends on the considerations elaborated on in G below and in
Judge Higginbotham's Hickman dissent. We need not and do not
address whether such considerations (or similar ones) govern or
limit the availability of aggregation for such purpose where the
regulated intrastate activity is "commercial" (or the regulation
does govern the conduct of a wholly or partially commercial
enterprise or endeavor).
40
"We do not doubt that Congress has authority under the
Commerce Clause to regulate numerous commercial
activities that substantially affect interstate commerce
and also affect the educational process. . . .
Admittedly, a determination whether an intrastate
activity is commercial or noncommercial may in some cases
result in legal uncertainty." Id. at 1633 (emphasis
added).
The last sentence above quoted is likewise quoted in Morrison. Id.
at 1750. Justice Kennedy, in his concurring opinion in Lopez
(joined in by Justice O'Connor and joining in Chief Justice
Rehnquist's opinion for the Court) states:
"Were the Federal Government to take over the regulation
of entire areas of traditional state concern, areas
having nothing to do with the regulation of commercial
activities, the boundaries between the spheres of federal
and
state
authority
would
blur
and
political
responsibility would become illusory." Id. at 1638
(emphasis added).
The above passage is likewise quoted with approval in Morrison.
Id. at 1750.
And, since what we are concerned with is the power of Congress
under the Commerce Clause­the power "[t]o regulate Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes"­"commercial" rather than simply any broadly understood
concept of "economic" seems to be the appropriate concept.
Robbery is the "activity" regulated by the Hobbs Act, and we
conclude that for these purposes robbery cannot be considered a
commercial activity. Robbery does have an economic effect. But
so, too, do not only all thefts of any kind from any victim but
also, for example, virtually all criminal homicides. Moreover, the
here relevant portion of the Hobbs Act, apart from simply
specifying that the accused have committed a "robbery" which "in
41
any way or degree . . . affects commerce" (although not requiring
any intention to have or foreknowledge of such an effect), says
nothing whatever about the identity, status or activity (whether as
being engaged in any sort of commercial activity or otherwise) of
either the victim or the robber, and does not purport to in any way
regulate the conduct of any commercial activity. What is relevant
in this connection under Lopez and Morrison is not the effects of
the conduct which the statute proscribes but whether the statute
may fairly be said to regulate commercial activity. The here
relevant portion of the Hobbs Act cannot.
We recognize that some decisions have taken the view that "the
Hobbs Act regulates the interference with economic activity by
robbery," Peterson at 852, and for that reason alone an aggregation
analysis is always per se appropriate and all that needs be shown
is a depletion of assets. Id. ("what is aggregated is the
depletion of the interstate entity's assets by robbery"). See also
Gray at 1274 ("Economic activity, or more precisely the infliction
of economic harm, is at the heart of the Hobbs Act's prohibition on
robbery"). However, as noted, the here relevant portion of the
Hobbs Act says nothing about the victim being an "interstate
entity."33 And, we are aware of no Commerce Clause case in which
the Supreme Court has applied the aggregation principle to a class
of activities where contours of the class are not reasonably
inferable from the language of the challenged statute or
regulation. Moreover, the approach of allowing aggregation simply
33Nor may the victims here be properly so characterized.
See part IIC, supra.
42
because of "the infliction of economic harm" (or the "depletion of
. . . assets") equally supports making a federal offense of any
crime (say any criminal homicide or assault producing serious
bodily injury) so long as it causes economic harm or depletes
economic resources and hence in some way or degree affects
interstate commerce­in the same sense as does a fifty dollar
robbery or a fifty cent shoplifting from a victim (whether an
individual or a local retailer) who purchases items made in another
state­and so long as the aggregate effect of all such crimes on
interstate commerce is substantial. Yet, Morrison rejects the
notion that Congress may regulate a crime simply because "the
nationwide, aggregated impact of that crime has substantial effects
on employment, production, transit, or consumption." Id. at 1752-
53. Lopez and Morrison reflect that such a limitation on the
aggregation principle is necessary because "[t]he Constitution
requires a distinction between what is truly national and what is
truly local," and "[t]he regulation and punishment of intrastate
violence that is not directed at the instrumentalities, channels,
or goods involved in interstate commerce has always been the
province of the States." Id. at 1754. Certainly, none of the
instant robberies can be characterized as "directed at the
instrumentalities, channels, or goods involved in interstate
commerce."34 Further, the several decisions refusing to find the
34And, the here relevant portion of the Hobbs Act,
denouncing any "robbery" which "in any way or degree . . .
affects commerce" is in no way limited to robberies "directed at
the instrumentalities, channels, or goods involved in interstate
commerce."
43
Hobbs Act applicable to most robberies of individuals under
theories of deletion of assets and aggregation of the effect on
interstate commerce of all such robberies likewise support our view
in this respect.35 It has been said that this distinction is
justified because "in general . . . businesses purchase on a larger
scale than individuals." United States v. Boulahanis, 677 F.2d
586, 590 (7th Cir. 1982). However, this justification is not
persuasive because the here relevant portion of the Hobbs Act makes
no distinction between the robberies it proscribes on the basis of
whether the victim is a business (or is engaged in a commercial
activity), and because virtually every consumer regularly expends
considerable funds on the purchase of items originating out-of-
state and there are many more consumers than businesses. Indeed,
consumer spending is generally estimated to amount to two-thirds of
the national economy. See also United States v. Thomas, 159 F.3d
296, 298 (7th Cir. 1998) ("since the aggregate effect of such
35See United States v. Lynch, 282 F.3d 1049, 1054 (9th Cir.
2002) (". . . robbery does have an economic component; however,
that economic component must rise above the simple, though
forced, economic transaction between two individuals. Otherwise,
almost every violent property crime would be transformed into a
federal offense, contrary to the teachings of Morrison"); United
States v. Wang, 222 F.3d 234, 239-40 (6th Cir. 2000) (restaurant
owner robber of $4,200 by former employee; of $4,200 taken $1,200
had been withdrawn that day from restaurant with intent to
deposit it in the restaurant bank account the next day;
restaurant purchased meat from out-of-state suppliers; not
covered by Hobbs Act, citing Morrison); United States v. Quigley,
53 F.3d 908, 910 (8th Cir. 1995); United States v. Collins, 40
F.3d 95, 100-101 (5th Cir. 1994) (robbery of Mercedes-Benz
automobile, cell phone, cash, jewelry and clothes); United States
v. Buffey, 899 F.2d 1402 (4th Cir. 1990) ($20,000 extortion);
United States v. Matson, 671 F.2d 1020 (7th Cir. 1982) ($3,000
extortion); United States v. Merolla, 523 F.2d 51 (2d Cir. 1975)
(extortion of contractor by owner).
44
robberies [of individuals] on commerce is non-trivial, those cases
are in tension with the ones . . . which insist on aggregation").
Moreover, as previously noted, we are aware of no Supreme Court
Commerce Clause decision applying the aggregation principle to a
class of activities the contours of which are not reasonably
inferable from the language of the challenged statute or
regulation. Thus, the aggregation principle if applied to Hobbs
Act prosecutions, would apply all robberies (of any personal
property, from any victim, by any robber) which "in any way or
degree . . . affect[s] commerce."
We turn now to the appropriate standards to determine whether
in such a case the applicable Lopez category three "substantially
affects" requirement can be met by aggregating the effects of all
such robberies.
G. Aggregation and the Hobbs Act
As previously observed, the aggregation principle has
relevance only in Lopez category three cases, cases that are
concerned only with regulation of intrastate conduct. As to such
regulation, Lopez's explicit requirement that the regulated
intrastate conduct not merely affect interstate commerce but that
it do so "substantially" is obviously designed to insure that
congressional power under the Commerce Clause is not wholly without
meaningful limits and does not obliterate the "distinction between
what is truly national and what is truly local," id. at 1634, so as
to transform to a unitary system of government the constitutionally
established federal system under which, among other things, there
is "no better example of the police power, which the Founders
45
denied the National Government and reposed in the States, than the
suppression of violent crime and vindication of its victims."
Morrison at 1754. Yet if there are essentially no limits on use of
the aggregation principle to satisfy the "substantially"
requirement, then that requirement becomes virtually meaningless
and wholly incapable of performing the function it is designed to
serve, for the greater the breadth and generality of the regulatory
net which Congress casts over intrastate conduct the more
"substantial" will be the aggregated affect on interstate commerce
of the total of all the intrastate conduct so regulated. Moreover,
if the aggregation principle is applicable "the courts have no
power `to excise, as trivial, individual instances' of the class"
being aggregated. Perez v. United States, 91 S.Ct. 1357, 1361
(1971) (quoting Maryland v. Wirtz, 88 S.Ct. 2017, 2022 (1968)).
Although the Supreme Court has on several occasions sustained
federal statutes on the aggregation theory, it has never applied or
even referred to it in a Hobbs Act case (nor is anything in the
Hobbs Act legislative history supportive of such an approach). Nor
since Lopez and Morrison has the Court made any general analysis or
explanation of the contours of the doctrine.
In United States v. Robinson, 119 F.3d 1205 (5th Cir. 1997),
we rejected an as-applied challenge to a Hobbs Act conviction which
urged that under Lopez the evidence was insufficient because it
showed only that the charged robberies had some, but not a
substantial, effect on interstate commerce.36 We rejected that
36Robinson involved one conspiracy and three substantive
counts involving retail store robberies. The victim "stores
46
contention, relying on the "aggregation principle" as reflected by
cases such as Wickard v. Filburn, 63 S.Ct. 82 (1942), Katzenbach v.
McClung, 85 S.Ct. 377 (1964) and Heart of Atlanta Motel v. United
States, 85 S.Ct. 348 (1964), held that "Lopez did not undermine
this principle" and relied in that connection on the Tenth
Circuit's decision in United States v. Bolton, 68 F.3d 396 (1995).
Robinson, 1214-15.
Subsequently, in United States v. Hickman, 151 F.3d 449 (5th
Cir. 1998) (panel opinion), 179 F.3d 230 (5th Cir. 1999) (en banc),
we again addressed the requisite interstate commerce connection
respecting Hobbs Act convictions for several robberies of retail
establishments. The Hickman panel affirmed the convictions,
considering itself bound by Robinson, but expressed "serious
questions" as to the propriety of applying the aggregation
principle in that setting.37 The en banc court noted that "[b]y
provided check-cashing services . . . the stores cashed out-of-
state checks, payroll checks, and government benefit checks . . .
several of the stores sold products that had been shipped to
Texas from other states. The victims . . . suffered substantial
losses as a result of the robberies: one store was forced to
close permanently for lack of capital, and the others were unable
to cash checks for a finite period of time." Id. at 1208.
"[T]hese robberies caused business losses of approximately $5,000
each" to two different victims and "$60,000" to a third. Id. at
1209.
37The panel opinion states:
"A review of Supreme Court authority raises serious
questions regarding whether aggregation principles can
be used as the commerce clause jurisdictional hook
under the Hobbs Act when the underlying crimes arise
from a purely local crime spree. . . . These local
robberies are not the sort of economic activity that
can legitimately be viewed in the aggregate for
traditional economic impact analysis purposes. The
conceptual difference between the consumption of home-
grown wheat that might otherwise have been sold on the
47
means of an equally divided en banc court, we affirm the counts of
conviction," but no opinion for affirmance was issued. Hickman,
179 F.3d 230. Half the judges comprising the en banc court joined
in a dissenting opinion by Judge Higginbotham urging reversal on
the basis that, particularly in light of Lopez, the aggregation
principle was not properly applicable to those Hobbs Act
prosecutions. Id.
Given the intervening decision in Morrison we revisit that
issue and now express our essential agreement with the conclusions
and underlying reasoning of Judge Higginbotham's Hickman opinion.38
As stated in that opinion:
"We would hold that substantial effects upon interstate
commerce may not be achieved by aggregating diverse,
separate individual instances of intrastate activity
where there is no rational basis for finding sufficient
connections among them. Of course, Congress may protect,
enhance, or restrict some particular interstate economic
market, such as those in wheat, credit, minority travel,
open market, see Wickard v. Filburn, 317 U.S. 111, 63
S.Ct. 82, 87 L.Ed. 122 (1942), or denying service in a
restaurant to a particular race of interstate
travelers, see Katzenbach v. McClung, 379 U.S. 294, 85
S.Ct. 377, 13 L.Ed.2d 290 (1964), and a string of local
robberies is apparent. We, however, are bound by
circuit law. See United States v. Robinson, 119 F.3d
at 1208. Robinson constitutes clear circuit precedent
for the application of aggregation to this local non-
economic activity, thereby setting the commerce clause
jurisdictional hook." Id. at 456.
38We recognize decisions of our sister circuits that
continue after Morrison to apply an aggregation analysis to Hobbs
Act prosecutions. See, e.g., United States v. Elias, 285 F.3d
183, 188-89 (2d Cir. 2002); United States v. Gray, 260 F.3d 1267,
1273-74 (11th Cir. 2001); United States v. Peterson, 236 F.3d
848, 852 (7th Cir. 2001); United States v. Malone, 222 F.3d 1286,
1294-95 (10th Cir. 2000). But see United States v. Lynch, 282
F.3d 1049, 1054 (9th Cir. 2002); United States v. Wang, 222 F.3d
234, 240 (6th Cir. 2000). For the reasons stated herein, we
respectfully view the matter differently.
48
abortion service, illegal drugs, and the like, and
Congress may regulate intrastate activity as part of a
broader scheme. The Hobbs Act is not a regulation of any
relevant interstate economic market, nor are there other
rational connections among nationwide robberies that
would entitle Congress to make federal crimes of them
all. The Hobbs Act does not target any class of product,
process, or market, or indeed even commercial victims.
It facially applies to any robbery, or its attempt, of
any person or entity. . . . The Hobbs Act offers no
`regulatory scheme' which `could be undercut' if
individual robberies were not aggregated. . . . Thus,
putting aside robberies as part of an effort to regulate
particular interstate markets such as guns, drugs, or
organized crime syndicates, a local robbery spree can be
within Congress's power only if it by itself has a
substantial effect." Id. at 231.
. . .
"Where Congress has sought to regulate­protect, enhance,
or restrict­some particular market such as wheat, credit,
minority travel, or abortion service, it has pointed the
way to a rational aggregation test. It has identified
those things that affect that market, things which if not
all subject to the regulation would erode the effort.
Intrastate production and sales can be aggregated,
because the prices of goods and services are determined
in interstate markets. If, for example, the federal
government enacts a price control to ensure sufficient
income for producers, it will be thwarted if consumers
switch to buying goods in intrastate commerce or produce
the goods themselves. Because the instances of economic
activity are intimately connected and in the aggregate
substantially affect commerce, Congress can regulate such
activity." Id. at 233.
We also observe that not only does the Hobbs Act "not target
any class of product, process or market or even commercial
victims," but it has also been held to apply to robbery (or
extortion) which adversely affects illegal commerce39 as well as to
39See, e.g., United States v. Peterson, 236 F.3d 848, 854
(7th Cir. 2001) ("the Hobbs Act does not require that the
commerce affected be legal commerce"); United States v. Jones, 30
F.3d 276, 286 (2d cir. 1994); United States v. Ambrose, 740 F.2d
505, 512 (7th Cir. 1984) (Hobbs Act properly "read to punish
extortion that promotes illegal commerce as well as extortion
that retards legal commerce"). See also, e.g., United States v.
Bailey, 227 F.3d 792, 798 (7th Cir. 2000) ("robbery of cocaine
49
that which beneficially affects commerce.40
The analysis in the Hickman en banc dissent fully comports
with the following crucial passage in Lopez explaining the Court's
refusal to sustain 18 U.S.C. § 922(q) under an aggregation theory,
viz:
"Section 922(q) is not an essential part of a larger
regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity
were regulated. It cannot, therefore, be sustained under
our cases upholding regulations of activities that arise
out of or are connected with a commercial transaction,
which viewed in the aggregate, substantially affects
interstate commerce." Id. at 1631 (emphasis added).
Where the Supreme Court has applied aggregation to uphold
federal regulation of intrastate conduct against constitutional
challenge under the Commerce Clause, there has always been a
rational basis to find sufficient interrelationship or commonality
of effect on interstate commerce among the discrete intrastate
instances regulated and between them and a scheme of regulation
(protection, enhancement or restriction) of some particular
interstate market or activity such that the regulation of those
intrastate activities can rationally be viewed as necessary to the
effectiveness of or a meaningfully supporting part of the scheme of
dealers generally has an effect on commerce" for purposes of
Hobbs Act).
40See, e.g., United States v. Diaz, 248 F.3d 1065, 1084
(11th Cir. 2001) (under Hobbs Act "the effect on interstate
commerce is not limited to only adverse effects"); United States
v. Kaplan, 171 F.3d 1351, 1357 (11th Cir. 1999) (Hobbs Act
"intended to protect commerce from any and all forms of effect,
whether they are . . . beneficial or adverse"); United States v.
Mattson, 671 F.2d 1020, 1024 (7th Cir. 1982) ("Even a beneficial
effect on interstate commerce, e.g., facilitating the flow of
building materials across state lines, is within the prohibition
of the statute").
50
regulation of that particular interstate activity or market.
We now turn to the most frequently cited of these cases.
Wickard v. Filburn, 63 S.Ct. 82 (1942), involved a farmer who
"owned and operated a small farm . . . maintaining a herd of dairy
cattle, selling milk, raising poultry, and selling poultry and
eggs" and raising "a small acreage of winter wheat." Id. at 84.
He sold part of the wheat, fed part to his poultry and cattle, some
of which were sold, used some for seeding and some in making flour
for home consumption. In the year in question his wheat "available
for marketing" quota under the Agricultural Adjustment Act of 1938
as amended was 11.1 acres but he harvested and threshed 23 acres
and was penalized 49 cents a bushel on the 239 bushels harvested
and threshed from the 11.9 acres of excess acreage. Id. at 83, 84,
86.41 The Court assumed that this excess was consumed on the farm,
but nevertheless, and despite the comparatively minimal quantity,
sustained the penalty as against Commerce Clause challenge,
stating, inter alia,
"The effect of consumption of home-grown wheat on
interstate commerce is due to the fact that it
constitutes the most variable factor in the disappearance
of the wheat crop.
. . .
One of the primary purposes of the Act in question was to
increase the market price of wheat and to that end to
limit the volume thereof that could affect the market.
It can hardly be denied that a factor of such volume and
variability as home-consumed wheat would have a
substantial influence on price and market conditions.
This may arise because being in marketable condition such
wheat overhangs the market and if induced by rising
41Wheat not threshed was not considered "available for
marketing" and could without penalty be cut and cured or fed as
hay or reaped and fed with the head and straw together. Id. at
93.
51
prices tends to flow into the market and check price
increases. But if we assume that it is never marketed,
it supplies a need of the man who grew it which would
otherwise be reflected by purchases in the open market.
Home-grown wheat in this sense competes with wheat in
commerce. . . . Congress may properly have considered
that wheat consumed on the farm where grown if wholly
outside the scheme of regulation would have a substantial
effect in defeating and obstructing its purpose to
stimulate trade therein at increased prices.
. . .
Control of total supply, upon which the whole statutory
plan is based, depends upon control of individual
supply." Id. at 90-91 (emphasis added).
We note that Lopez describes Wickard as "perhaps the most far
reaching example of Commerce Clause authority over intrastate
commerce." Lopez at 1630. Clearly, however, the factors that
brought Wickard under the aggregation principle are absent in the
present character of prosecution. In Wickard market forces related
the effect of the individual instances of regulated intrastate
conduct to each other and to the scheme of regulation of the
particular interstate market, namely sustaining the price at which
wheat was sold in interstate commerce; moreover, the diverse
instances of regulated intrastate conduct in Wickard each had a
similar effect on the regulatory scheme, that is each had the same
tendency to affect the interstate price of wheat in the same way.
Likewise, in United States v. Wrightwood Dairy Co., 62 S.Ct.
523 (1942), the Court upheld a regulation prescribing the minimum
price to be paid producers for all milk marketed in the Chicago
area, approximately forty percent of which came from out-of-state,
rejecting the contention that the regulations could not under the
Commerce Clause be applied to a local milk marketer all of whose
business was entirely intrastate. The Court explained:
52
". . . the marketing of intrastate milk which competes
with that shipped interstate would tend seriously to
break down price regulation of the latter.
. . .
We conclude that the national power to regulate the price
of milk moving interstate into the Chicago, Illinois,
marketing area, extends to such control over intrastate
transactions there as is necessary and appropriate to
make the regulation of the interstate commerce effective;
and that it includes authority to make like regulations
for the marketing of intrastate milk whose sale and
competition with the interstate milk affects its price
structure so as in turn to affect adversely the
Congressional regulation." Id. at 527.
The decisions in Heart of Atlanta Motel v. United States, 85
S.Ct. 348 (1964), and Katzenbach v. McClung, 85 S.Ct. 377 (1964),
sustained under the Commerce Clause the public accommodation
provisions of Title II of the Civil Rights Act of 1964 applicable
to hotels and restaurants respectively. In doing so the Court in
each case pointed to the overwhelming evidence before Congress in
its consideration of the legislation that racial discrimination by
hotels and restaurants impeded minority interstate travel. In
Heart of Atlanta the Court noted that the Committee Reports and
testimony before Congress reflected that:
"[O]ur people have become increasingly mobile with
millions of people of all races traveling from State to
State; that Negroes in particular have been the subject
of discrimination in transient accommodations, having to
travel great distances to secure the same; that often
they have been unable to obtain accommodations and have
had to call upon friends to put them up overnight, . . .
and that these conditions had become so acute as to
require the listing of available lodging for Negroes in
a special guidebook . . . that this uncertainty [of the
Negro traveler finding lodging] stemming from racial
discrimination had the effect of discouraging travel on
the part of a substantial portion of the Negro community.
This was the conclusion not only of the Under Secretary
of Commerce but also of the Administrator of the Federal
Aviation Agency who wrote the Chairman of the Senate
Commerce Committee that it was his `belief that air
commerce is adversely affected by the denial to a
53
substantial segment of the traveling public of adequate
and desegregated public accommodations.' . . . We shall
not burden this opinion with further details since the
voluminous testimony presents overwhelming evidence that
discrimination by hotels and motels impedes interstate
travel." Id. at 355 (emphasis added).42
The Court went on to hold that interstate travel was interstate
commerce under the Commerce Clause and that accordingly Congress's
commerce power embraced the power to remove the impediment to
interstate travel posed by race based refusal to serve hotel
customers. Id. at 355-360. McClung similarly placed great
emphasis on the same consideration, id. at 381-82,43 and goes on to
hold that the fact that one restaurant's activities may have but a
de minimus effect on interstate commerce was not significant,
relying on Wickard. McClung at 382.
42The portion of the above quotation up through the
reference to "a special guidebook" is quoted in Perez v. United
States, 91 S.Ct. 1357, 1361 (1971), as explanatory of the
decision in Heart of Atlanta.
43McClung states:
". . . there was an impressive array of testimony that
discrimination in restaurants had a direct and highly
restrictive effect upon interstate travel by Negroes.
This resulted, it was said, because discriminatory
practices prevent Negroes from buying prepared food
served on the premises while on a trip, except in
isolated and unkempt restaurants and under most
unsatisfactory and often unpleasant conditions. This
obviously discourages travel and obstructs interstate
commerce for one can hardly travel without eating.
Likewise, it was said, that discrimination deterred
professional, as well as skilled, people from moving
into areas where such practices occurred and thereby
caused industry to be reluctant to establish there."
Id. at 381-82 (emphasis added).
This passage from McClung is likewise quoted in full in
Perez v. United States, 91 S.Ct. 1357, 1361 (1971), as
explanatory of the decision in McClung.
54
In Heart of Atlanta and McClung the discrete local activities
regulated­the race based refusal of diverse hotels and restaurants
to serve minority customers­each had a similar effect on a
particular interstate market or activity, namely impeding minority
interstate travel, an obstruction to interstate commerce which the
statute was designed to remove.
Maryland v. Wirtz, 88 S.Ct. 2017 (1968),44 rejected Commerce
Clause challenges to the 1961 amendments to the Fair Labor
Standards Act adopting the "enterprise concept" extending coverage
to include not only employees personally engaged in interstate
commerce or in the production of goods for interstate commerce, but
also all those employed by "an enterprise" engaged in interstate
commerce or in the production of goods for interstate commerce.
The Court noted that in the original act Congress had found that
"substandard wages and excessive hours, when imposed on employees
of a company shipping goods into other States, gave the exporting
company an advantage over companies in the importing States" and
that this had the "undesirable effect of driving down labor
conditions in the importing States." Id. at 2020.45 The Court went
on to state:
44Wirtz was overruled on other grounds in National League of
Cities v. Usery, 96 S.Ct. 2465 (1975), which was in turn
overruled in Garcia v. San Antonio Metropolitan Transit
Authority, 105 S.Ct. 1005 (1985).
45See also id. n.12 quoting congressional finding that
substandard labor conditions "in industries engaged in commerce
or in the production of goods for commerce . . . causes commerce
and the channels and instrumentalities of commerce to be used to
spread and perpetuate such labor conditions among the workers of
the several States."
55
"When a company does an interstate business, its
competition with companies elsewhere is affected by all
its significant labor costs, not merely by the wages and
hours of those employees who have physical contact with
the goods in question." Id. at 2021.
Wirtz also noted that Congress had found that substandard labor
conditions tended to labor disputes and strikes, "that when such
strife disrupted businesses involved in interstate commerce, the
flow of goods in commerce was itself affected," id. at 2021, and
that this applied equally to substandard labor conditions of all
employees of an enterprise engaged in commerce, not merely those
personally so engaged. Id. at 2021-22. Wirtz goes on to state
that under the Commerce Clause courts could not "excise, as
trivial, individual instances falling within a rationally defined
class of activities," citing Wickard. Wirtz at 2022.
The intrastate activities regulated in Wirtz (wages of
employees of an enterprise engaged in interstate commerce or in the
production of goods for or acquisition of goods directly in
interstate commerce even where the employee personally was not so
engaged) were by market forces interrelated and related to
interstate commerce and to the regulated interstate market in
wages. Moreover, each of those intrastate activities had the same
character of effect on the statutory scheme of regulation­as each
proscribed substandard wage tended, by market forces, to lower
wages generally and to foster industrial discord, contrary to and
tending to undermine the statutory scheme for maintaining wages of
employees of enterprises engaged in interstate commerce (or the
production of goods for or acquisition of goods directly in
interstate commerce) and avoiding the disruption of interstate
56
commerce incident to industrial strife resulting from substandard
wages.
In Perez v. United States, 91 S.Ct. 1357 (1971), the Court
sustained Perez's conviction for making an extortionate extension
of credit contrary to the provisions of Title II of the Consumer
Credit Protection Act of 1968, rejecting the contention that the
statute was unconstitutional as not requiring proof that the
particular transaction affected interstate commerce. The Court
observed that "[p]etitioner is one of the species commonly known as
`loan sharks' which Congress found are in large part under the
control of `organized crime,'" citing congressional findings under
Title II that "[o]rganized crime is interstate and international in
character," that "[a] substantial part of the income of organized
crime is generated by extortionate credit transactions," and that
"[e]xtortionate credit transactions are carried on to a
considerable extent in interstate and foreign commerce and through
the means and instrumentalities of such commerce" and "[e]ven where
. . . purely intrastate in character . . . directly affect
interstate and foreign commerce." Id. 1358 & n.1. It also noted
evidence before Congress that loan sharking was "the second largest
source of revenue for organized crime" and is "controlled by
organized criminal syndicates," that "through loan sharking the
organized underworld has obtained control of legitimate businesses,
including securities brokerages and banks," id. at 1362, and
concluded by stating that "loan sharking in its national setting is
one way organized interstate crime . . . syphons funds from
numerous localities to finance its national operations." Id. at
57
1362-63.
The Court likewise noted that "[t]here was ample evidence
showing petitioner was a `loan shark' who used the threat of
violence as a method of collection," id. at 1358, and "[i]n the
setting of the present case there is a tie-in between local loan
sharks and interstate crime." Id. at 1367.46
In upholding the conviction the Perez Court relied on Wickard,
Wrightwood Dairy Co., Heart of Atlanta, McClung, and Wirtz for the
principle that the class of activities is the proper measure of the
required relationship to interstate commerce and that courts would
not "`excise, as trivial, individual instances' of the class."
Perez at 1360-61.
Plainly, Perez dealt with a national market in credit, in
which individual instances interact with each other by virtue of
market forces. More significantly, perhaps, it dealt with a
statute attempting to regulate a particular interstate activity,
that of "organized interstate crime," which was financed by the
both local and interstate loan sharking which it controlled. Id.
46The Court also noted that Perez, among other collection
threats, had said "my people" could put the victim in the
hospital if he didn't pay. Id. at 1359. The Second Circuit,
whose affirmance of the conviction was ultimately affirmed by the
Supreme Court, noted that the victim borrowed the money to open
his own butcher shop, having been unable to procure a loan
through normal banking channels, that the rate of interest
charged by Perez "was obviously large enough to perpetuate the
indebtedness forever," that payments to Perez were made only by
such methods as the victim's delaying payments to his meat
suppliers, and that as a result of all this, including Perez's
threats of violence and of "the attention of persons higher in
the moneylending chain," the victim "abandoned his business" and
fled to Puerto Rico "leaving his debts, legitimate and
illegitimate, behind." United States v. Perez, 426 F.2d 1073,
1074 (2d Cir. 1970).
58
at 1362-63.47 Moreover, Perez also relied on the principle that
"`when it is necessary in order to prevent an evil to make the law
embrace more than the precise thing to be prevented it may do so'"
(quoting Westfall v. United States, 47 S.Ct. 629 (1927)), and then
observed "in the present case there is a tie-in between local loan
sharks and interstate crime." Id. at 1362. This would appear to
invoke the rule that where the same kind of trafficking is carried
on both interstate and intrastate Congress in preventing the
interstate trafficking may also proscribe the intrastate
trafficking where, as a practical matter (for reasons such as the
fungibility of the particular commodities or the like), it is
necessary to regulate the intrastate trafficking in order to
effectively regulate the interstate trafficking. See, e.g., United
States v. Lopez, 459 F.2d 949, 951-53 (5th Cir. 1972).48
47As the Second Circuit had observed in its affirmance of
the conviction:
"Loan-sharking activities can persuasively be
characterized as generally in or affecting commerce
precisely because such practices depend for their full
effect on monopoly in metropolitan areas and national,
or at least multi-state, organization. This provided a
logical basis for congressional focus on loan-sharking
rather than on a variety of other crimes which may be
far more "local" in nature, e.g., robbery, burglary,
larceny." United States v. Perez, 426 F.2d 1073, 1079
(2d Cir. 1970) (emphasis added).
48Much the same thought is expressed in the Second Circuit's
opinion affirming Perez's conviction, viz:
"What is known as legislative fact for a class of
transactions­the effect on interstate commerce­is not
necessarily easily provable in an individual instance
of loan-sharking. Trying to trace the flow of funds
from the immediate enforcer to the organization behind
the loan might well be impossible in a particular case.
Money, of course, is a classic fungible commodity;
showing its movement interstate may be completely
impossible where all that moves is cash recorded, if at
59
The present case does not involve the targeting of any
particular interstate market or activity, and it is evident that
the proscription of robberies which do not have the requisite
effect on interstate commerce is in no sense necessary to effective
regulation of those that do.
We finally turn in this connection to Hodel v. Virginia
Surface Mining & Reclamation Ass'n, 101 S.Ct. 2352 (1981) (Hodel v.
Virginia) and Hodel v. Indiana, 101 S.Ct. 2376 (1981), in each of
which the Court rejected Commerce Clause challenges by various coal
producers to certain provisions of the Surface Mining and
Reclamation Control Act of 1977. The challenged provisions
constituted a complex regulatory scheme governing surface coal
mining operations, requiring, among other things, land restoration,
use of dams, spoil disposal and the like. The Court noted
congressional findings that surface mining adversely affects
interstate commerce by, inter alia, destroying the utility of land
for commercial, industrial, agricultural, forestry and other
purposes, causing erosion and contributing to flooding, polluting
water and otherwise. Hodel v. Virginia at 2361. The Court
observed that "coal is a commodity that moves in interstate
all, as an intangible on someone's records or in
someone's memory." United States v. Perez, 426 F.2d
1073, 1080-81 (2d Cir. 1970).
Similarly, in United States v. Darby, 61 S.Ct. 451, 461 (1941),
the Court stated:
"Congress in the exercise of its power to require
inspection and grading of tobacco shipped in interstate
commerce may compel such inspection and grading of all
tobacco sold at local auction rooms from which a
substantial part but not all of the tobacco sold is
shipped in interstate commerce."
60
commerce. Here Congress rationally determined that regulation of
surface coal mining is necessary to protect interstate commerce
from adverse effects that may result from that activity" and that
"the power conferred by the Commerce Clause [is] broad enough to
permit congressional regulation of activities causing air or water
pollution, or other environmental hazards that may have effects in
more than one state." Id. at 2363. Hodel v. Indiana focused on
the prime farmland provisions of the Act, holding that "Congress
had a rational basis for finding that surface coal mining on prime
farmland affects interstate commerce in agricultural products."
Id. at 2384. Both decisions note that federal standards were
appropriate to insure that the forces of interstate competition in
the coal industry would not undermine the maintenance of adequate
standards. Thus Hodel v. Virginia states:
"the Act responds to a congressional finding that
nationwide `surface mining and reclamation standards are
essential in order to insure that competition in
interstate commerce among sellers of coal produced in
different States will not be used to undermine the
ability of the several States to improve and maintain
adequate standards on coal mining operations within their
borders.' . . . The prevention of this sort of
destructive interstate competition is a traditional role
for congressional action under the Commerce Clause." Id.
at 2363.
Hodel v. Indiana expresses essentially the same thought.49 A
footnote called for at the conclusion of the portion of the Hodel
v. Indiana opinion dealing with the Commerce Clause states:
49The opinion there states: ". . . the Act reflects the
congressional goal of protecting mine operators in States
adhering to high performance and reclamation standards from
disadvantageous competition with operators in States with less
rigorous regulatory programs." Id. at 2386.
61
"Appellees contend that a number of the specific
provisions challenged in this case cannot be shown to be
related to the congressional goal of preventing adverse
effects on interstate commerce. This claim, even if
correct, is beside the point. A complex regulatory
program such as established by the Act can survive a
Commerce Clause challenge without a showing that every
single facet of the program is independently and directly
related to a valid congressional goal. It is enough that
the challenged provisions are an integral part of the
regulatory program and that the regulatory scheme when
considered as a whole satisfies this test." Id. at 2386
n.17 (emphasis added) (citing Heart of Atlanta Motel and
McClung).
Thus the Hodel cases deal with a complex regulatory program of
a particular industry engaged in interstate commerce designed to
control a particular set of interstate effects of certain practices
of that industry. The regulated instances of intrastate conduct
are related to each other and to the particular scheme of
regulation of interstate commerce and effects thereon by the forces
of the interstate market in the particular regulated industry. And
the regulated instances of intrastate conduct also all either have
the same character of effect on interstate commerce or are an
integral or essential part of the overall complex regulatory scheme
governing particular businesses engaged in interstate commerce,
such that unless the covered intrastate activities were regulated
the regulatory scheme would be undercut.
It is also significant that in all the above discussed Supreme
Court aggregation cases the intrastate conduct being regulated was
conduct forming a part of the operation of a wholly or partially
commercial enterprise (whether owned and operated by an individual
or some legal entity). The regulations governed aspects of how
such a commercial (or partially commercial) enterprise must
62
operate, what it must or must not do in its operations. See
Morrison, 120 S.Ct. at 1750 n.4 ("[I]n every case where we have
sustained federal regulation under Wickard's aggregation principle,
the regulated activity was of an apparent commercial character.").
We recognize that language in Russell v. United States, 105
S.Ct. 2455 (1985), a prosecution under the federal arson statute,
18 U.S.C. § 844(i), suggests that a broader­indeed virtually
unlimited­application
of
the
aggregation
principle
is
constitutionally permissible.50 But the only issue in Russell was
one of statutory construction; no constitutional or Commerce Clause
claim was presented to the Supreme Court. Russell involved the
owner of a two unit apartment building which was being rented to
tenants at the time he attempted to destroy it by fire; he earned
rental income from it and treated it as business property for tax
purposes. Id. at 2456.51 He unsuccessfully contended before the
50Russell states:
"[T]he local rental of an apartment unit is merely an
element of a much broader commercial market in rental
properties. The congressional power to regulate the
class of activities that constitute the rental market
for real estate includes the power to regulate
individual activity within that class." Id. at 2457.
51See also the opinion of the Seventh Circuit affirming the
conviction, United States v. Russell, 738 F.2d 825, 827 (1984),
stating:
"The South Union Street apartment building was one of
four pieces of property that Russell owned and rented
to tenants. Russell's income tax returns from 1976
through 1982 demonstrated that Russell treated these
properties as income property for which he claimed
business deductions for depreciation and expenses.
These properties also were covered by business fire
insurance policies, in contrast to the defendant's own
residence which he covered by a homeowner's policy
limited to owner-occupied premises. At the time of the
incident in question, Russell lived in neither unit of
63
Supreme Court, as he had in the District Court, 563 F. Supp. 1058
(N.D. Ill. 1983), and in the Court of Appeals, 738 F.2d 825 (7th
Cir. 1984), "that the building was not commercial or business
property, and therefore was not capable of being the subject of an
offense under section 844(i)." Id. at 2456. In the Supreme Court
he presented only an issue of statutory construction and expressly
disclaimed any constitutional argument, his "Brief For Petitioner"
there stating:
"Mennuti [United States v. Mennuti, 639 F.2d 107, 2d Cir.
1981, the case on which he principally relied] does not
hold, nor does petitioner contend, that Congress could
not have drafted a statute encompassing virtually every
building in the land, had it chosen to do so. Thus, this
case does not present a constitutional challenge to
congressional power under the Commerce Clause. It is our
contention that, as held in Mennuti, the statute that
Congress did pass, 18 U.S.C. § 844(i), as explicated by
the House Judiciary Committee Report referred to above,
does not cover a building used as a dwelling by a tenant
of the owner, even though interstate utilities may have
been used in the building." Id. at 11 (emphasis added;
footnote omitted).52
We also note that section 844(i) applies only to property that is
the South Union Street property."
52The Government's "Brief For The United States" in the
Supreme Court likewise states "Petitioner concedes that Congress
has power under the Commerce Clause to prohibit arson of sort he
attempted. Relying on United States v. Mennuti, 639 F.2d 107 (2d
Cir. 1981), petitioner argues that Congress did not intend to
exercise its commerce power fully in enacting section 844(i), but
intended to cover `business property' only." Id. at 5.
Nothing in either the District Court or the Court of Appeals
opinions in Russell even mentions any constitutional issue, and
each treats the case as solely one of statutory construction,
namely whether § 844(i) was inapplicable (as the defendant
contended, before those courts and the Supreme Court, that it
was) because the property was residential and hence not business
property. Both those courts rejected that contention, holding
that though residential in one sense the property was used as a
business by the defendant. See United States v. Russell, 738
F.2d at 827.
64
"active[ly] employ[ed] for commercial purposes," Jones, 120 S.Ct.
at 1910, while the here relevant prong of the Hobbs Act is in no
way analogously limited but rather applies regardless of whether or
not the victim is engaged in any character of commercial activity.
We conclude that Russell does not resolve the Commerce Clause
aggregation issue as applied to this character of Hobbs Act
prosecution.
We recognize that "substantial" for purposes of Lopez category
three has a qualitative as well as a quantitative aspect, though
those two aspects are somewhat interrelated rather than being
entirely independent of each other. Limits on the aggregation
principle, necessary to give meaning to "substantial" so as to
preserve the distinction between "what is truly national and what
is truly local," should thus take into account both quantitative
and qualitative considerations. We conclude that the limits we
have outlined do so notwithstanding that their most obvious focus
may be quantitative. To the extent that there is a meaningful,
rational basis to aggregate, then the aggregated quantitative
effect on interstate commerce tends to qualitatively justify
viewing the matter as truly national rather than truly local.
Conversely, that the regulated category three intrastate conduct is
not a commercial activity but is rather essentially "the
suppression of violent crime" is a qualitative consideration
pointing towards the regulation being of a truly local nature
unless there is a meaningful and rational basis for aggregation.
There is no sufficient rational basis to aggregate the effects on
interstate commerce of any of the four individual prototypically
65
local crimes of violence here prosecuted with the effects on
interstate commerce of all the undifferentiated mass of robberies
covered by the Hobbs Act's general proscription of any and all
robberies that "in any way or degree . . . affect[] commerce."
Conclusion
We turn to Lopez and Morrison for guidance, concluding that
their relevance is not confined to cases where the statute lacks a
jurisdictional element. Moreover, we conclude that the Hobbs Act's
here relevant proscription of any robbery that "in any way or
degree . . . affects commerce" does not constitute a regulation of
commercial activity, notwithstanding that all robberies have some
economic effect, and hence is within the scope of Lopez and
Morrison. We further conclude that the instant robberies fall
within Lopez category three, and for that reason they are within
the Commerce Clause power only if they "substantially" affect
interstate commerce. Individually considered, it is clear that
none of them do. Nor is there any rational basis to for that
purpose aggregate their respective effects on interstate commerce
with the effect on interstate commerce of all the undifferentiated
mass of robberies covered by the Hobbs Act's here relevant general
proscription of any and all robberies which "in any way or degree
. . . affect[] commerce." To allow such aggregation in Lopez
category three cases would, without adequate justification, bring
within the scope of the Commerce Clause the proscription of local
violent (and other) crimes not constituting the regulation of
commercial activity, crimes prototypical of those that historically
have been within the reserved police power of the states, contrary
66
to the principle that the Commerce Clause is limited to matters
that are truly national rather than truly local.
The conviction on each of the Hobbs Act counts accordingly
should be reversed.53 Because each of the section 924(c)(1) counts
of conviction is concededly dependent on the corresponding Hobbs
Act count of conviction, all the section 942(c)(1) counts of
conviction should likewise be reversed.
We respectfully dissent from the affirmance of these
convictions.
53As we conclude the evidence does not suffice to show the
requisite effect on interstate commerce we do not separately
address the complaints of the jury charge.
67
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring in the dissent
from the judgment affirming conviction, with whom GARWOOD, JOLLY
and DeMOSS, Circuit Judges, join:
For a second time this court has been unable to agree upon the
bite of recent Supreme Court interpretations of the Commerce
Clause. This should be no surprise. We are left adrift by a
statute whose reach is at best no more fixed than a property line
set at the latest low tide mark of an ocean tributary.
There is some certainty. The Supreme Court has turned away
from the New Deal view that the reach of the Commerce Clause is to
be largely defined by the political process. But the path it will
follow and how far it will go are undecided. In turn, the
respective roles of Congress and the courts in this enterprise
remain uncertain. Add the Hobbs Act's unique effort to define its
reach by proscribing all robberies over which there is federal
jurisdiction ­ a wholly tautological statement made at the zenith
of the judiciary's abandonment of the commerce field to the
Congress ­ and we are left with three choices. We can take the
Hobbs Act as a congressional punt and decide it ourselves, we can
leave it to the political process, or we can invoke the dialogic
process of the doctrine of clear statement. The first two options
describe this court's division. Our court's impasse leads me to
state the case for the third path. At the least, it will make
68
plain the division of this court. In describing this path, I need
not retreat from the view expressed for half of our court in
Hickman and so ably defended in Judge Garwood's opinion, again for
one half of our court.
I
With the developing case law since Hickman, there is a step
that principles of judicial restraint offer this inferior court
before it decides if Congress has the authority under the Commerce
Clause to make a federal crime of local robberies such as those
before us here. It could insist that Congress first do what it has
not done ­ make clear its purpose to reach the wholly intrastate
activity charged in the crimes now before us. For reasons I will
explain, by the third path we ought to refuse to apply the Hobbs
Act to this genre of local robberies until Congress clearly states
its purpose to do so. Only then should the courts decide the
commerce question now being pressed upon us.
II
The Supreme Court has long required that if Congress intends
to alter "the usual constitutional balance between the States and
the Federal Government,"54 it must make an unmistakably clear
statement of its intention to do so in the language of the
statute.55
54 Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989)
(quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)).
55 Will, 491 U.S. at 65; United States v. Bass, 404 U.S. 336, 349
(1971).
69
Although it found expression most often in the context of
congressional abrogation of state sovereign immunity,56 the doctrine
of clear statement has been applied broadly where uncertainty in
the application of congressional directives would leave to the
court the decision to upset the federal-state balance. The Supreme
Court has invoked the doctrine in various settings. It found that
states were not "persons" within the meaning of 42 U.S.C. § 1983,57
and that the Federal Age Discrimination in Employment Act could not
be construed to interfere with a State's choice of judges absent
clear language that judges are included.58 Similarly, the doctrine
of clear statement is one of the articulated limits on the spending
power,59 and federal laws criminally punishing "conduct readily
denounced as criminal by the States" are narrowly interpreted
absent a clear statement of Congress' intent to significantly alter
the federal state-balance.60
The doctrine of clear statement is animated by principles of
federalism inherent in the structure of the Constitution.61
56 Atascadero, 473 U.S. at 242.
57 Will, 491 U.S. at 65.
58 Gregory v. Ashcroft, 501 U.S. 452, 463-64 (1991). This although the
statute provided that uncertainty of scope should be resolved in favor of
coverage. Id. at 467.
59 South Dakota v. Dole, 483 U.S. 203, 207 (1987).
60 Bass, 404 U.S. at 349.
61 See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55-56 (1996)
("This rule arises from a recognition of the important role played by the
Eleventh Amendment and the broader principles that it reflects."); Gregory,
501 U.S. at 461 ("This plain statement rule is nothing more than an
acknowledgment that the States retain substantial sovereign powers under our
70
Although the protection of the States against intrusive exercises
of Congress' Commerce Clause powers is still largely left to the
political process,62 to permit courts to decide whether a poorly
aimed congressional thrust encroached upon state regulation of
intrastate criminal activity "would evade the very procedure for
lawmaking on which Garcia relies to protect states' interests."63
Insisting upon a clear statement from the Congress is a modest
exercise of judicial power. It only asks that Congress do its job,
insisting that Congress engage its political responsibility by
being clear of its purpose when it would reach into a sphere of
state authority.64 In its most sanguine form, it "may lead some
members to engage in the kind of deliberation about the scope of
their Article I powers that they should undertake anyway as part of
their responsibility to uphold the Constitution."65
The doctrine of clear statement does not require us to define
"traditional governmental activities" in the abstract, an approach
rejected by the Court in Garcia.66 We follow long-standing Supreme
constitutional scheme.").
62 Garcia v. San Antonio Metropolitan Transit Authority, 469 US. 528
(1985) (declining to review limitations placed upon Congress' Commerce Clause
powers by our federal system).
63 Gregory, 501 U.S. at 465 (quoting LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL
LAW § 6-25, at 480 (2d ed. 1988)).
64 See United States v. Lopez, 514 U.S. 549, 577 (Kennedy, J.,
concurring) (citing New York v. United States, 505 U.S. 144, 155-169 (1992)).
65 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-9, at 857 (3d ed. 2000).
66 Garcia, 469 U.S. at 538-540 (arguing that it is too difficult to
define a "traditional governmental activity").
71
Court precedent, decided after Garcia,67 that requires us to be
certain of Congressional purpose before finding that a federal law
overrides the federal-state balance.68 There is here no cordoning
off of traditional governmental activities -- rather, we follow the
Supreme Court's lead, recognizing that the doctrine of clear
statement protects a sphere of state authority.69 Local robberies
of local businesses have always been the concern of state
government and within this sphere of state authority that must not
be entered absent a clear congressional statement.70 Significantly
and independently it is a legal doctrine uniquely fitted to the
hand of a court that would act with restraint in insisting that the
enumerated powers remain just that. For this reason, by this path
we would not now decide that the Hobbs Act may be applied to
discrete local robberies. The political process ought to first
decide its intended reach, at least before the full force of
judicial review is unleashed.
III
67 Gregory, 501 U.S. at 464 (explaining how the doctrine of clear
statement works in conjunction with Garcia's conviction that the federal-state
balance is primarily protected by the political process); Will, 491 U.S. at
65; Atascadero, 473 U.S. at 247 (articulating doctrine of clear statement four
months after Garcia was decided).
68 Id. at 460 (citing Atascadero, 473 U.S. at 243).
69 Gregory, 501 U.S. at 460-61 (requiring a clear statement of
congressional intent before interpreting a law to infringe upon State
sovereignty); see also Lopez, 514 U.S. at 611 (Souter, J., dissenting) (noting
that the doctrine of clear statement should be relied upon in cases
implicating congressional encroachment upon "state legislative prerogatives"
or "enter[ing] into spheres already occupied by the States.").
70 Bass, 404 U.S. at 523-24.
72
The Hobbs Act fails to provide the expression of "unequivocal
congressional intent" necessary to intrude upon this sphere of
state authority.71 It is true that the statute reaches all
robberies that affect commerce "in any way or degree,"72 and it is
also a truism that the Hobbs Act expresses congressional intent to
use "all the constitutional power Congress has."73 Neither of these
statements state a congressional purpose to regulate the robberies
here, as I will explain. And although in recent years there have
been episodic federal prosecutions of these type of local
robberies, this activity of other branches of government reflects
purpose only in the sense that it was not halted by the Congress ­
inaction from which we ordinarily do not infer purpose and
certainly not clear purpose. Significantly, there is no principled
limit to a reading of commerce power that would sustain federal
jurisdiction over the activity charged in the cases before us
today. Those who would argue that the Congress has clearly
expressed its purpose to make federal crimes of the robberies here
will have to persuade that Congress intended to reach the
proverbial "robbery of the lemonade stand"; that its purpose was to
claim federal hegemony over local activities, including a street
mugging. Either that or defy the words claimed to be so clear by
some case-by-case judgment that is little more than the arbitrary,
"well, not that far."
71 Atascadero, 473 U.S. at 247.
72 18 U.S.C. § 1951.
73 Stirone v. United States, 361 U.S. 212, 215 (1960).
73
By the time the Anti-Racketeering Act of 1934 was amended and
became the Hobbs Act, the Supreme Court had already held that
congressional power under the Commerce Clause was "plenary and
extends to all such commerce be it great or small."74 This was a
direct subscription to the view that the limits of congressional
power under the Commerce Clause will be set by the political
process; at the least the political process was the main player.
As the Court later conceded in Katzenbach v. McClung,75 it would not
"interfere" as long as Congress violated "no express constitutional
limitation."76 Until Lopez was decided, the Court upheld all
Commerce Clause legislation as a matter of course, concluding that
where there is "a rational basis for finding a chosen regulatory
scheme necessary to the protection of commerce, our investigation
is at an end."77 Given that the Court wholly deferred to Congress'
own interpretation of the limits of the commerce power, the
observation that the Hobbs Act purports to reach to the limits of
the commerce power as defined by the courts sheds no light. In an
era when the limits of the commerce power were defined by the
Congress, even a congressional directive to reach to the limits of
the Commerce Clause was no direction at all ­ it was wholly
74 Nat'l Labor Relations Bd. v. Fainblatt, 306 U.S. 601, 606 (1939); see
also Nick v. United States, 122 F.2d 660, 668-69 (4th Cir. 1941) (holding that
Fainblatt mandates an expansive reading of the Anti-Racketeering Act).
75 379 U.S. 294 (1964).
76 Id. at 304.
77 Maryland v. Wirtz, 392 U.S. 183, 189 (1968) (quoting Katzenbach, 379
U.S. at 303-04).
74
tautological and as we will see, the Hobbs Act definition of
commerce was not even that pointed.
Lopez and Morrison, with the doctrine of substantiality,
returned the courts to the field, to once again police the limits
of congressional authority under the Commerce Clause. Arguably,
when the Court began to withdraw from the concession to the
political process, the earlier congressional directives that the
Act ought reach as far as the constitution permits could then be
seen as a clear expression of congressional purpose in that it was
no longer talking to itself; rather the courts were to decide. But
with the doctrine of substantiality, whether the meandering
intrusions by local United States Attorneys can be validated if
Congress wishes to do so, is at best uncertain. The statute's
description of robberies and its definition of commerce are quite
different, its commerce definition clearly reaching conduct falling
under the first two prongs of Lopez but leaving intrastate activity
(as before us here) to be picked up at all only by its question-
begging catch of all other commerce over which the United States
has federal jurisdiction:
"commerce within the District of Columbia, or
any Territory or Possession of the United
States; all commerce between any point in a
State, Territory, Possession, or the District
of Columbia and any point outside thereof; 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."78 (emphasis supplied)
The "robberies" in this case, if picked up at all, must be
reached by the phrase "and all other commerce over which the United
78 18 U.S.C. § 1951(b)(3) (emphasis added).
75
States has jurisdiction." This expression of purpose, made at the
zenith of legislative hegemony in the contest of who decides the
limits of the commerce power, is no more plain than the Jones Act's
reach of any seaman or the Omnibus Crime Control and Safe Streets
Act's reach of every firearm.79
IV
As we observed, it is now clear that this generalized reach
cannot touch intrastate acts that do not have a substantial effect
upon interstate commerce. The government concedes that the
robberies before us cannot meet the substantial effects requirement
­ all robberies must be aggregated. At this point we can engage in
a supposition that Congress thought all these local robberies were
sufficiently linked to regulate them as a class. This is fanciful
because such an aggregation was not even thought to be necessary at
the time of the 1934 Act or the Hobbs Act. The fact is that
Congress has never made that decision. It has never decided
whether or what to aggregate.
Hickman insists that Morrison's requirement that regulated
intrastate activities have a substantial effect upon intrastate
commerce has no content absent a further insistence upon a rational
relationship among discrete effects that would be aggregated. This
means that a judgment about the rationality of aggregating the
effects of these discrete robberies is a correlative requirement of
substantiality, and must be made. By this third path, it must
79 Welch, 483 U.S. at 475-76 (applying doctrine of clear statement to
exempt states from the Jones Act despite the sweeping language of "[a]ny
seaman" in the statute); Bass, 404 U.S. at 350 (employing the doctrine of
clear statement to exclude the "mere possession" of firearms from the reach of
the Act).
76
first be made by the Congress. Only after that judgment is made,
should the courts decide the issue of the level of deference due
that legislative judgment. And it is then that the very content of
the newly required substantial effect will be decided.
There is irony in a court about the task of policing the
enumerated powers moving to the alternative of presuming a
legislative judgment or supplying its own view in the first
instance. If it is sufficient to hypothesize rationality, drawing
upon the creativity of counsel and judicial imagination there is
nothing substantial about substantiality; the courts will have
wholly deferred to the political process as the arbiter of the
state-federal role. On the other hand, if the congressional
purpose is not relevant, or is simply supplied by the courts, the
courts would be the exclusive arbiter. I am not persuaded that the
principle of the separation of powers ought to only oscillate
between these two polarities.
V
This is not the first time that the doctrine of clear
statement has been applied to limit the application of a federal
criminal statute to intrastate criminal conduct. In United States
v. Bass,80 for example, the Court required a clear statement from
Congress before it would apply the Omnibus Crime Control and Safe
Streets Act to extend federal law enforcement to a class of
intrastate criminal activity that had long been regulated solely by
80 Bass, 404 U.S. at 349-51.
77
the States.81 Two years later, in United States v. Enmons,82
Congress applied this doctrine to the Hobbs Act. In Enmons the
Court refused to apply the Hobbs Act to violence associated with a
labor dispute even though this activity was presumptively within
the broad bounds of the statute. Despite the general and broad
language of the Hobbs Act, the Court required "language much more
explicit" before it would apply it to local strikes because doing
so would represent "an extraordinary change in federal labor law"
and constitute "an unprecedented incursion into the criminal
jurisdiction of the States."83
In response to Enmons, the Sixth and Ninth Circuits narrowly
construed the Hobbs Act, concluding that only activities that
constitute "racketeering" are prohibited by the Act.84 The Court
rejected this approach in United States v. Culbert,85 concluding
that it conflicted with a plain reading of the statute as well as
the legislative history.86 Culbert also rejected the claim that the
doctrine of clear statement required the Court to read a
racketeering requirement into the Hobbs Act, characterizing the
argument as an attempt to "manufacture ambiguity where none
81 Id. at 350-51.
82 410 U.S. 396 (1973).
83 Id. at 350-51.
84 United States v. Culbert, 548 F.2d 1355 (9th Cir. 1977); United
States v. Yokley, 542 F.2d 300 (6th Cir. 1976).
85 435 U.S. 371 (1978).
86 Id. at 373-378.
78
exists."87 The Court also rejected the idea that a racketeering
requirement must be read into the Act because without a
racketeering requirement, the federal-state balance would be upset.
The Court held that "there is no question that Congress intended to
define as a federal crime conduct that it knew was punishable under
state law."88 Of course, these were robberies fully under the first
two prongs of Lopez, never seen as the exclusive domain of the
states.
Culbert and Enmons teach that by defining as a federal crime
conduct that it knew was punishable under state law, Congress knew
that it would alter the balance of federal-state power. The
question was whether the application of the statute would generate
a result that interfered with state authority in a way that
Congress had not intended.89 Unlike Culbert, which involved an
attempted robbery of $100,000 from a federally insured bank, Enmons
involved the application of the Hobbs Act to violence used to
achieve legitimate union objectives in a strike, thereby
effectuating "an unprecedented incursion into the criminal
jurisdiction of the States."90 Here, as in Enmons, we cannot apply
87 Id. at 379.
88 Id. at 379.
89 It should be noted that while Culbert held that "Congress intended to
make criminal all conduct within the reach of the statutory language" of the
Hobbs Act, this must be read as a response to the argument that a racketeering
requirement be read into an act, given that the conduct reached in Enmons fit
within the statutory language but presumably could not be reached without a
clear statement from Congress.
90 Enmons, 410 U.S. at 411.
79
the statute to violate the protected sphere of state authority
without a clear statement that Congress intended that result.
V
To make clear its purpose to regulate this activity, Congress
must make a legislative judgment about the rationality of
regulating the activity as a class, impliedly or explicitly.
Courts in turn must decide the deference due that legislative
judgment, a task that has proved difficult and divisive in the
course of recent cases. Only then will it be decided whether the
requirement of substantial effect has content or is only a symbolic
waive of the judicial hand. The recent pattern of Commerce Clause
cases offers a powerful argument for the dialogic legislative first
step afforded by the doctrine of clear statement.
The Court's claim of a judicial role in defining the limits of
the commerce power did not suggest that it was to the exclusion of
Congress. Nonetheless, we could simply proceed. And in
justification point out that even with a clear statement, at the
margins we might yet be engaged to adjudicate the limits by a case-
by-case decision of this one's in and that one's out. But there
remains the nagging precedent and transcendent question of the
rationality of aggregating and what is meant by rationality, a task
the Congress and the courts in turn have not faced. The question
nags because of the further suggestion that unless no deference
will be given to such a congressional decision, we ought not
proceed without it, and the Supreme Court has not said that no
deference is due.
80
All said, by the third path we ought to require Congress to
first make clear the wholly intrastate robberies with an effect
upon interstate commerce that it would regulate, whether connected
by conspiracy, spree, or in some other way, possibly a
confrontational response of single robbery without substantial
effect. As Chief Justice Rehnquist reminded in Morrison:
[I]n the performance of assigned constitutional duties
each branch of the government must initially interpret
the Constitution, and the interpretation of its powers by
any branch is due great respect from the others....91
We have nothing from the Congress.
91 United States v. Morrison, n.7 120 S.Ct. 1740, 1753
(2000).
81
EDITH H. JONES, Circuit Judge, dissenting, with whom JOLLY, SMITH,
DeMOSS and CLEMENT, Circuit Judges, join:
Judges Garwood's and Higginbotham's non pareil opinions
explain why eight members of this court would hold that appellant
McFarland could not be constitutionally prosecuted under the Hobbs
Act for routine convenience store robberies. The Supreme Court's
decisions in Lopez and Morrison compel this result, in our view, by
limiting the extent to which the Commerce Clause facilitates ever-
deeper federal incursions into the states' constitutional
prerogative of local crime control. Eight other judges silently
reject this conclusion. Unfortunately, they have withdrawn from
the field of reasoned dispute, just as they did in a similar case
two years ago. United States v. Hickman, 179 F.3d 230 (5th Cir.
1999) (en banc). It is our view that our court owes the public a
candid explanation of our respective positions.
One may ask why our silent colleagues should be called on
to write anything. Is it somehow inappropriate for courts to issue
opinions when they are evenly divided? The short answer to this
question is, no. Both the general role of the appellate courts and
the exact circumstances of this case virtually demand expression of
our competing views.
Federal appellate courts' twin duties are to decide
appeals and to articulate the law. Writing reasoned opinions,
especially in important cases, is critical to the responsible
performance of these duties. One of the most prominent studies of
the federal appellate courts exhorts us:
The obligation to give reasons is vital to both
functions. When reasons are announced and can be
weighed, the public can have assurance that the
correcting process is working. Announcing reasons can
also provide public understanding of how the numerous
decisions of the system are integrated. In a busy court,
the reasons are an essential demonstration that the court
did in fact fix its mind on the case at hand. An
unreasoned decision has very little claim to acceptance
by the defeated party, and is difficult or impossible to
accept as an act reflecting systematic application of
legal principles. Moreover, the necessity of stating
reasons not infrequently changes the results by forcing
the judges to come to grips with nettlesome facts or
issues which their normal instincts would otherwise cause
them to avoid.
Paul D. Carrington, Daniel J. Meador and Maurice Rosenberg, Justice
on Appeal 10 (West 1976) (emphasis added). Judge Wald, formerly
Chief Judge of the District of Columbia Circuit, also emphasized
this point: "The courts' opinions should contain reasoned
explanations of their decisions to lend them legitimacy, permit
public evaluation, and impose a discipline on judges." Hon.
Patricia Wald, The Problem with the Courts: Black-Robed Bureaucracy
or Collegiality Under Challenge?, 42 Md. L.REV. 766, 768-69 (1983).
The benefits of issuing reasoned opinions ­ fostering
public understanding of the law, accountability and transparency,
and imposing self-discipline on the judges ­ are not limited to
majority opinions. Judges' occasional writings, such as
concurrences, dissents, opinions following denial of en banc
rehearing ­ and opinions written despite an evenly divided court ­
lack the force of law but deploy the force of suasion for exactly
the same purposes as majority opinions. In no case can we compel
our brethren to provide published reasons for their decisions. By
their silence here, however, they have defaulted their duties of
public explication, accountability and transparency.
83
Our
colleagues'
uniform
silence
is
initially
disappointing because this is an important case. For more than a
decade, the Supreme Court has been reinvigorating federalism as a
component of our constitutional structure. Lower federal courts
have the obligation conscientiously to enforce the Court's
decisions in this evolving area. The new trend furnishes issues
that should intellectually delight and challenge us and evoke our
utmost analytical powers. Our opinions may be useful to the
Supreme Court, for good or ill, when this case is appealed, and may
be persuasive in other federal courts.
The reticence of our colleagues cannot, in our view, be
rationalized as prudence, or the unwillingness to write reasons in
a non-definitive case. The outcome of this case is definitive.
When the court tackled the same issue two years ago, nearly the
same group of judges declined to give reasons for affirming a Hobbs
Act conviction against a Commerce Clause attack. As a result, the
federal government feels free to prosecute purely local robberies
without inhibition in this circuit. Our pattern jury instructions
continue to say that a showing of any effect on interstate commerce
(no matter how small) will suffice to create federal jurisdiction
over a Hobbs Act crime. The only brake installed by this court
against federalization of all robberies under the Hobbs Act
consists of our arbitrary exclusion a few years ago of robberies of
individuals. United States v. Collins, 40 F.3d 95 (5th Cir. 1994).
The affirming judges' silence here thus assures, whether they
desire it or not, that there is no principled limit on federal
prosecution of robberies ­ even of the proverbial lemonade stand.
84
Adding to the mystery of their silence is the long-
standing and consistent, albeit optional, practice of issuing
explanatory opinions in other courts that have split evenly when
sitting en banc. There are at least two dozen cases in recent
years, from nearly every circuit, in which such opinions were
i s s u e d . 9 2 R e s p o n d i n g t o a c o l l e a g u e ' s
92United States v. Brown, 276 F.3d 14 (1st Cir. 2002) (en
banc): Three judges wrote separate statements supporting
reversal of the district court's judgment
Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (en banc): 1
opinion concurring in affirmance by equally divided court; 2
dissenting opinions.
United States v. Walton, 207 F.3d 694 (4th Cir. 2000) (en
banc): An opinion for affirmance written by a deceased judge was
concurred in by half the court. In addition, two judges wrote
separate concurring opinions, and three judges wrote dissenting
opinions.
United States v. Barber, 119 F.3d 276 (4th Cir. 1997).
Stupak-Thrall v. United States, 89 F.3d 1269 (6th Cir. 1996)
(en banc): The order affirming the judgment of the district
court by an equally divided vote states: "The mandate will not
issue for fourteen (14) days from the date of this order so that
members of the court may file any separate opinions they wish
to." Id. at 1269. Thereafter, concurring and dissenting
opinions were filed.
United States v. Page, 167 F.3d 325 (6th Cir. 1999) (en
banc): 8 judges joined separate concurring opinion supporting
affirmance; 3 separate opinions supporting reversal.
Norwood v. Bain, 166 F.3d 243 (4th Cir. 1999) (en banc):
separate opinions written explaining reasons why judges would
reverse or affirm district court's judgment on issues as to which
en banc court was equally divided.
United States v. Chen, 131 F.3d 375 (4th Cir. 1997) (en
banc): defendants' 18 U.S.C. § 924(c)(1) convictions were
affirmed by an equally divided court. Judge Wilkins wrote a
separate concurring opinion explaining the reasons for affirming
those convictions. The judges who voted to reverse the
convictions did not file an opinion.
Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996) (en banc): One
separate opinion in favor of affirming; two separate opinions in
85
favor of reversing. The separate opinion in favor of affirmance
cites cases regarding the practice of filing opinions in such
cases in other circuits and notes:
Our prior cases do not purport to announce a
rule that opinions on the merits should not
be written, and we believe that there should
be an option to issue them (which is
obviously exercised affirmatively in this
case). This is especially so because the
views of this court of intermediate appeal
might be useful to the Supreme Court in the
event of an application for certiorari.
Id. at 922 n.2.
United States v. Hamrick, 43 F.3d 877 (4th Cir. 1995) (en
banc).
Smith v. Zant, 887 F.2d 1407 (11th Cir. 1989) (en banc): By
an equally divided vote, the court affirmed the district court's
grant of habeas relief as to Smith's death sentence. Judge
Tjoflat wrote a separate concurrence explaining why he and five
other judges would affirm the denial of habeas relief as to the
conviction, and would reverse the grant of habeas relief as to
the death sentence. Judge Kravitch wrote a concurrence and
dissent explaining why six judges would reverse the denial of
habeas relief as to the conviction and affirm the grant of habeas
relief as to the death sentence.
United States v. Grey Bear, 863 F.2d 572 (8th Cir. 1988) (en
banc): Separate opinions were filed in support of reversal and
in support of affirmance. The opinion in support of reversal
states that it is written "solely because" the opinion in support
of affirmance "could cause confusion among lawyers and district
judges of this circuit." Id. at 573. The opinion in support of
affirmance states: "As the divided court today affirms the
rulings of the district court with respect to joinder and
severance, it is appropriate that we articulate the reasons that
five judges vote in favor of this result." Id. at 580.
Hotel & Restaurant Employees Union, Local 25 v. Smith, 846
F.2d 1499 (D.C. Cir. 1988): The court split over the issues of
standing and ripeness. Judge Mikva's separate opinion
acknowledges that the opinions "carry no weight and determine no
law of the circuit" and that it is "unlikely they will shed much
light." Nevertheless, he states that "[a] reasonable regard for
our colleagues' views in disagreement ... compels our brief
statement of how we believe this appeal should have been
resolved." Id. at 1500. Judge Silberman filed a separate
opinion for the other half of the court.
Piper v. Supreme Court of New Hampshire, 723 F.2d 110 (1st
86
criticism of his filing a separate opinion in one such case, Judge
Wilkins of the Fourth Circuit had this explanation:
Judge Murnaghan's unsupported statement that a judge
should remain silent when an en banc vote on a particular
issue is equally divided is misplaced. To the contrary,
many times a judge feels that it is important for the
Cir. 1983) (en banc): Separate opinions supporting affirmance
and reversal.
Elmore v. Cone Mills Corp., 23 F.3d 855 (4th Cir. 1994) (en
banc): The court was evenly divided as to one issue. Three
separate opinions were filed regarding that issue, two in support
of affirmance and one in support of reversal.
Faulkner Advertising Assocs., Inc. v. Nissan Motor Corp. in
U.S.A., 945 F.2d 694 (4th Cir. 1991) (en banc): Separate
opinions in support of affirmance and in support of reversal.
United States v. Klubock, 832 F.2d 664 (1st Cir. 1987) (en
banc): one opinion supporting affirmance and two supporting
reversal.
Jenkins v. Agyei, 807 F.2d 657 (8th Cir. 1987) (en banc):
separate opinions supporting affirmance and reversal.
Roesch, Inc. v. Star Cooler Corp., 712 F.2d 1235 (8th Cir.
1983) (en banc): After noting that the usual practice when a
judgment is affirmed by an equally divided court is not to
express any opinion, the judges supporting affirmance stated:
"In the present case, however, because of the significance of the
issue involved and the circumstances of the changed en banc
panel, we elect to set forth our reasons for affirming the
district court's judgment." Id. at 1236. A brief dissent was
filed by the judges supporting reversal, relying on the reasons
discussed in a dissenting opinion filed in a companion case
(Battle).
Battle v. Watson, 712 F.2d 1238 (8th Cir. 1983) (en banc):
The judges supporting affirmance adopted the reasoning of the
judges supporting affirmance in Roesch. The judges supporting
reversal wrote a separate dissent.
But see FMC Corp. v. United States Dep't of Commerce, 29
F.3d 833 (3d Cir. 1994) (en banc): One of the dissenting
opinions contains a footnote stating: "Because the court is
equally divided on the issue of the government's liability as an
arranger, and it is our tradition not to write an opinion in that
situation, I do not set forth what I believe are independent
reasons to reverse the district court in that regard." Id. at
854 n.7.
87
litigants and others to know why the court is divided on
a particular issue. And, we routinely author opinions
that do not carry the weight of the majority opinion such
as concurring opinions, dissenting opinions, and opinions
following a failed poll for en banc consideration; an
expression of the reasons supporting a vote in this
situation is not dissimilar. Moreover, the expression of
the views of individual judges when an en banc vote is
equally divided is hardly novel.
United States v. Barber, 119 F.3d 276, 289 (4th Cir. 1997) (en
banc) (citing cases).
In this court as well, silence is not our custom. Judges
have explained themselves in many previous cases where this court
divided evenly en banc. Carter v. United States, 325 F.2d 697 (5th
Cir. 1963) (en banc); United States v. Holmes, 537 F.2d 227 (5th
Cir. 1976) (en banc); Meltzer v. Bd. of Pub. Instruction of Orange
County, Florida, 577 F.2d 311 (5th Cir. 1978) (en banc); United
States v. Ibarra, 965 F.2d 1354 (5th Cir. 1992) (en banc); United
States v. Greer, 968 F.2d 433 (5th Cir. 1992) (en banc); United
States v. Kirk, 105 F.3d 997 (5th Cir. 1997) (en banc); United
States v. Hickman, 179 F.3d 230 (5th Cir. 1999) (en banc). In
1997, five of the eight judges who now say nothing joined an
opinion on an issue similar to the one now before us, whether Lopez
applied to invalidate a federal gun possession violation. United
States v. Kirk, 105 F.3d at 998 (en banc) (separate opinion of
Judge Parker, joined by Judges King, Davis, Wiener and Stewart).
The court was also evenly divided in Kirk. One wonders what could
prompt silence here, when juxtaposed with the writings there? In
sum, there are customary, issue-specific and even judge-specific
precedents for publishing written explanations following evenly
split en banc decisions in our court.
88
Given the sharpness and timeliness of the issue that
divides this court, the silence of those who affirm McFarland's
conviction has a public dimension. The court is an institution
defined by the reasoned exercise of power. It signals disregard
for the public ­ the federal prosecutors and defense attorneys ­
who remain unenlightened over how to avert, or precipitate, serious
discussion of the limits now imposed by the commerce clause on
federalization of local crime. Silence exhibits a unique unconcern
for appellant McFarland, as earlier for appellant Hickman, both of
whom were entitled to know how the power of the federal government
constitutionally bore down on them. Our court almost invariably
gives reasons for affirming criminal convictions ­ but not today.
Even in non-orally argued summary calendar dispositions, the
defendants invariably receive some explanation in response to their
appeals.93 Finally, this silence signals indifference toward the
predictability required of a fair-minded criminal justice system.
While
diminishing
the
court's
transparency
and
accountability, our colleagues' silence may also obscure their
internal disagreements. But if that were the sole purpose, it
makes no sense. Judges often express different reasons for
reaching a single result. In fact, the best test of competing
93As Judge Richard Arnold put it, "The third duty of the
court is to write an opinion which is intelligible, which
explains the result, and which we hope, is acceptable to the
losing side. I think about losing litigants a lot. Those are
the people who need to understand that they have been heard ­
that a reasoning creature of some kind has evaluated their
argument and comes to some sort of conclusion about it. They
won't like it; they won't enjoy losing, but I hope that they will
have a sense that they have been heard." Richard S. Arnold, The
Future of the Federal Courts, 60 Mo. L. Rev. 533, 536 (1995).
89
legal theories is in the open marketplace of ideas. Silence,
therefore, could mean an unwillingness to compete.94
Had any of our silent colleagues chosen to compete, they
would have to explain why ­ in the face of Lopez, Morrison, Jones
and Judges Garwood's and Higginbotham's able opinions ­ the Hobbs
Act regulates "interstate commerce" by federalizing even a single
local robbery.95 Because our colleagues are unwilling to speak for
themselves, and because the public is entitled to receive some
reasons for affirming McFarland's conviction, we shall attempt to
paraphrase the most significant arguments for their position.
Those who affirm concede that none of these local
robberies, considered individually or collectively, "substantially
affects" interstate commerce, as Lopez category III requires. They
acknowledge they can only show a proper basis for federal
prosecution under Lopez and Morrison if the Hobbs Act "regulates"
some intrastate activity whose aggregate national impact
substantially affects interstate commerce. But what is the
regulated activity, and how are its "substantial effects"
94"If I cannot give a reason I should be willing to stand
to, I must shrink from the very result which otherwise seems
good." County of Los Angeles v. Kling, 474 U.S. 936, 940 n.6
(1985) (Stevens, J. dissenting from summary reversal) (quoting
Karl Llewellyn, The Common Law Tradition 26 (1960), quoted in
Reynolds & Richman, The Non-Precedential Precedent -- Limited
Publication and No-Citation Rules in the United States Courts of
Appeals, 78 Colum. L. Rev. 1167, 1204 (1978)).
95We all agree that under the Hobbs Act, Congress may punish
robberies that are perpetrated against the channels of interstate
commerce (Lopez category I), goods or things in interstate
commerce (Lopez category II), and even individual robberies that
"substantially affect" interstate commerce (Lopez category III).
Our dispute rests solely on whether intrastate robberies like the
ones before us, that have no impact on interstate commerce, can
be federally prosecuted.
90
calculated? There are mutually conflicting ways to answer these
critical questions. The silent judges apparently cannot agree on
the answers, and some of them apparently adhere to more than one
answer.
The first route is to assert that robbery is an "economic
activity." This theory draws on an alleged distinction between
Morrison and Lopez. Even if Morrison states a categorical rule
against aggregating the effects of "noneconomic, violent criminal
conduct", some of the silent judges apparently believe that
aggregation of robberies under the Hobbs Act is still permissible.
While Lopez suggested that aggregation of noncommercial activities
is inappropriate, see Lopez, 514 U.S. at 561, 115 S. Ct. at 1631
(emphasis added), Morrison's language "clarifies" that the
aggregation of noneconomic activities is problematic. 529 U.S. at
617, 120 S. Ct. at 1754 (emphasis added). Thus, their argument
goes, Congress could have had a rational basis for concluding that
the Hobbs Act regulates economic activity because robbery is an
"economic crime." More colorfully, one might assert that because
the thief sticks his hand into the stream of commerce, not
inadvertently or tangentially, but as a primary and defining aspect
of his conduct, robbery is an economic activity. Substituting yet
another metaphor, the robber's conduct is a "coercive barter" in an
unquestionably commercial environment ­ a convenience store.
Of course, robbery should not be considered an "economic"
activity. The dictionary defines "economic" as "relating to, or
concerned with the production, distribution and consumption of
commodities." Webster's Third New International Dictionary 720
91
(1981). Certainly, robbery has some economic effect, but so do
murder, aggravated assault, and theft. Further, to say that
robberies may be aggregated because robbery is an economic activity
is contrary to the decisions of this court and many other courts
that robberies of individuals may not be aggregated for prosecution
under the Hobbs Act. See cases cited in n.35 of Judge Garwood's
opinion. Under the robbery-as-economic-activity theory, Congress
could make it a federal crime intentionally to walk out of your
neighbor's house with a $5 bill he left on his kitchen counter.
Arson is frequently an economically-motivated crime, but
in Jones, the Supreme Court interpreted the federal arson statute
not to reach the immolation of an individual owner-occupied
residence. Justice Ginsburg wrote for a unanimous Court that,
"[g]iven the concerns brought to the fore in Lopez, it is
appropriate to avoid the constitutional question that would arise
were we to read [the federal arson statute] to render `the
traditionally local criminal conduct' in which petitioner Jones
engaged `a matter for federal law enforcement'" Jones v. United
States, 529 U.S. 848, 858, 120 S. Ct. 1912 (2000).96
Moving in exactly the opposite direction, some of our
silent colleagues would agree that robbery is not an economic act,
96Justice Ginsburg further noted that in Lopez, "the Court
stressed that the [regulated activity] was one of traditional
state concern and that the legislation aimed at activity in which
`neither the actors nor their conduct has a commercial
character." Jones, 529 U.S. at 858, 120 S. Ct. at 1911-12
(quoting Lopez, 514 U.S. at 577, 580, 115 S. Ct. at 1638, 1640
(Kennedy, J. concurring)). Additionally, Justice Stevens, in
concurrence, stated the courts should be reluctant to "believe
Congress intended to authorize federal intervention in local law
enforcement in a marginal case such as this [arson of a private
residence]." Id. at 859 (Stevens, J. concurring); see also
Lopez, 514 U.S. at 561 n.3, 115 S. Ct. at 1631 n.3.
92
but because the Hobbs Act has a jurisdictional hook encompassing
any robbery that has "any effect" on interstate commerce, and
because robbery is not "too attenuated" from commercial enterprise,
Congress has power to proscribe all robberies under the Commerce
Clause. But the question these judges have not answered is how
their rationale provides any limit at all to the prosecution of
local crime by the federal government. Under their position, a
federal statute could extend to all murders and assaults which "in
any way or degree affect commerce," or a federal statute could
criminalize all murders or assaults in which the victim is an
income earner and which "in any way or degree affect commerce."
Aggregating such crimes would result in the requisite "substantial
effect." Obviously, such "reasoning would allow Congress to
regulate any crime as long as the nationwide, aggregated impact of
that crime has substantial effects on employment, production,
transit or consumption." Morrison, 529 U.S. at 615, 120 S. Ct. at
1752-53. Morrison clearly rejected this view.
Some would affirm by crafting a narrower approach to the
statute, arguing that the Hobbs Act is really concerned with
convenience store robberies and the like, that is, with robberies
of commercial establishments.97 This approach stalls, however,
because it requires ignoring or judicially rewriting the statute;
97Advocates of this position would contend that Congress
can, pursuant to its Commerce Clause power, regulate otherwise
local criminal conduct that targets businesses, but not
individuals. This "rule", they could say, provides a clear,
practical guideline for legislators who are considering federal
criminal legislation as well as for federal prosecutors. Let us
ignore that this "rule" amounts to judicial legislation ­ if the
"rule" were so easily defensible, why is it not articulated as
the position of the silent colleagues?
93
the statute is not restricted to robberies of businesses or
commercial enterprises, much less to convenience stores or any
other specific victim. It plainly and broadly applies to any
robbery of any victim which "in any way or degree . . . affects
[interstate] commerce." Further, in a purely result-oriented
fashion, this position allows aggregation of all convenience store
robberies, so that any of them ­ including a $1 robbery from a
local store that buys $10 a month of out-of-state goods from a
local wholesaler - may properly be prosecuted as a federal crime,
but it excludes a $10,000 robbery of diamonds from a jewel merchant
walking along a city street. Congress was hardly so inconsistent.
Alternatively, instead of facing the hard decision
whether robbery is or is not an "economic activity," some of our
silent colleagues would argue that the Hobbs Act is "more closely
related to economic activity" than are other crimes, hence,
aggregation of robberies is permitted. But, as the Court pointed
out in Morrison, "in those cases where we have sustained regulation
of intrastate activity based upon the activity's substantial
effects on interstate commerce, the activity in question has been
some sort of economic endeavor." Morrison, 529 U.S. at 611, 120 S.
Ct. at 1750. See also Morrison, Id. n.4 (". . . in every case
where we have sustained federal regulation under the aggregation
principle in Wickard (citation omitted), the regulated activity was
of an apparently commercial character. See, e.g., Lopez.")
(citation omitted) (emphasis added). All of the Court's prior
aggregation holdings involved a regulation of the conduct of a
wholly or partially commercial enterprise. The Hobbs Act is not
94
such a statute. This theory would extend aggregation to an area no
Supreme Court holding has traversed. Lopez and Morrison plainly
point away from such an extension.
Then again, some of our colleagues may head in a
different direction and dispute the premise that it has made a
crucial difference to the Supreme Court whether aggregation was
based on the status of the regulated activity as commercial or
noncommercial. From this standpoint, aggregation turns on the
effects of the activity (such as robbery) and not on the inherent
relation of the activity to interstate commerce. But Lopez says
exactly the opposite: "[w]here economic activity substantially
affects interstate commerce, legislation regulating that activity
will be sustained." Lopez, 514 U.S. at 560, 115 S. Ct. at 1630
(emphasis added).
One distinctive approach would state that robbery is not
an economic activity, but also would assert that Judge Garwood's
opinion has constructed a new test different from that in Lopez and
Morrison. Since no further explanation is offered, the source of
the novelty would apparently be left to the reader's imagination.
Yet another conclusory position seems to assert that
prosecutors have been convicting defendants under the Hobbs Act by
aggregating the de minimis effects of local, intrastate robberies
for forty years. Of course, Lopez and Morrison had not been
decided forty years ago. Moreover, even though recent opinions of
sister circuits may support this sort of an argument for stare
95
decisis, their inadequate reasoning does not sustain the
constitutionality of the Hobbs Act as here applied.98
Finally, some of our silent colleagues would go so far as
to suggest that if the Supreme Court wanted to rein in application
of the Hobbs Act, it has had ample opportunity to do so. This
court should not take the initiative. But this reasoning is
backwards. It is the lower courts' duty faithfully to apply the
Supreme Court's rulings in Lopez and Morrison in the first
instance. We cannot ignore the Court's decisions any more than we
are permitted to second-guess its failure to grant certiorari on
issues of interest to us.
Despite their internal conflicts or incoherency, all of
these arguments share a common thread. None of them responds to
the federalism concerns expressed so unmistakably in Lopez and
Morrison.99 None of them sets any principled limit on the exercise
of federal power to prosecute indisputably local crime.100 None of
98See United States v. Gray, 260 F.3d 1267, 1274-75 (11th
Cir. 2001); United States v. Peterson, 236 F.3d 848, 852 (7th
Cir. 2001); United States v. Malone, 222 F.3d 1286, 1294-95 (10th
Cir. 2001). Several of the circuit courts have also drawn the
patently arbitrary distinction between robberies of individuals
and commercial establishments.
99To cite but one example: "Were the Federal Government to
take over the regulation of entire areas of traditional state
concern, areas having nothing to do with the regulation of
commercial activities, the boundaries between the spheres of
federal and state authority would blur and political
responsibility would become illusory." Morrison, 529 U.S. at
611, 120 S. Ct at 1750, (quoting Lopez, 514 U.S. at 577, 115 S.
Ct. at 1638 (Kennedy, J., concurring)).
100"If accepted, petitioners' reasoning would allow Congress
to regulate any crime as long as the nationwide, aggregated
impact of that crime has substantial effects on employment,
production, transit, or consumption. Indeed, if Congress may
regulate gender-motivated violence, it would be able to regulate
murder or any type of violence since gender-motivated violence,
96
them respects that the words "commerce" and "economic" have fixed
meanings, which do not conventionally include ordinary robbery.
Chief Justice Rehnquist's conclusion in Morrison was,
however, tolerably clear to the lay reader:
We accordingly reject the argument that
Congress may regulate noneconomic, violent
criminal conduct based solely on that
conduct's aggregate effect on interstate
commerce. The Constitution requires a
distinction between what is truly national and
what is truly local. In recognizing this fact
we preserve one of the few principles that has
been consistent since the [Commerce] Clause
was adopted. The regulation and punishment of
intrastate violence that is not directed at
the instrumentalities, channels, or goods
involved in interstate commerce has always
been the province of the States. Indeed, we
can think of no better example of the police
power, which the Founders denied the National
Government and reposed in the States, than the
suppression of violent crime and vindication
of its victims."
Morrison, 529 U.S. at 617, 120 S. Ct. at 1754. (citations and
footnote omitted). We might have had a forthright and responsible
debate, if our colleagues had adhered to their duty to express
reasons why they have chosen to allow McFarland to be convicted of
a federal crime.
as a subset of all violent crime, is certain to have lesser
economic impacts than the larger class of which it is a part."
Morrison, 529 U.S. at 615, 120 S. Ct. at 1752-53.
97

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