United States v. Miles

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-10001

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GREGORY LYNN MILES, and

GERALD JEHORAM GUSTUS,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Texas

September 5, 1997

Before DeMOSS and DENNIS, Circuit Judges, and DUPLANTIER, District

Judge.*

PER CURIAM:

In this appeal of their respective criminal convictions,

Appellants raise three issues. First, they argue that the district

court improperly instructed the jury as to the Hobbs Act; second,

they argue that they were improperly subjected to double jeopardy;

and, third, they argue that, under the Supreme Court’s decision in

United States v. Lopez, 514 U.S. 549 (1995), the Hobbs Act is

*

District Judge of the Eastern District of Louisiana, sitting

by designation.

unconstitutional on its face, or as applied in this case, and that

the evidence is insufficient to support a finding of "substantial

effect" on commerce as they argue is required by Lopez. For the

following reasons, we affirm the judgments of the district court.

FACTUAL BACKGROUND

Appellants/Defendants Gregory Lynn Miles and Gerald Jehoram

Gustus ("Defendants") were indicted for conspiracy, four counts of

interference with interstate commerce by robbery, and four counts

of firearm violations for their participation in a series of

robberies occurring in Tarrant County, Texas over a two month

period. These Tarrant County robberies involved three McDonald's

restaurants, a Taco Bueno restaurant, and a Colters's Barbecue and

Grill. Gustus alone was indicted for the robbery and firearm

violation as to one of the five robberies involved. The following

facts were introduced at trial concerning each of the robberies and

are not disputed on appeal:

On October 18, 1991, shortly after 7:00 a.m., the Defendants

entered a McDonald's Mini-Mac on North Watson Road ("North Watson"

store) in Arlington, Texas. At gunpoint, they removed approxi-

mately $1,500 from the restaurant's safe. The Defendants were

identified at trial as the robbers by the restaurant manager

Jenette Johnson and another employee. Johnson also testified that

the North Watson store is located near Highway 360, a highway which

connects Interstate Highway 20 and Interstate Highway 35. She

further testified that the restaurant is located one-half mile from

2

the Six Flags Over Texas amusement park. According to Johnson, the

store was closed for approximately one hour following the robbery.

On November 7, 1991, Gustus robbed a second McDonald's located

on East Division Street ("East Division" store) in Arlington,

Texas. According to the testimony of a McDonald's employee,

Esmerelda Graciano, the store was robbed upon its opening at 6:00

a.m. by two men fitting the physical descriptions of the

Defendants. Graciano testified that at least one of the assailants

had a gun during the robbery. The government introduced into

evidence a written confession from Gustus regarding all five of the

robberies, including the robbery of the East Division store.1

On December 7, 1991, Defendants entered and robbed a third

McDonald's restaurant located in Euless, Texas ("Euless" store).

The store manager, Regina Woodley, testified that the Defendants,

whom she identified at trial, entered the restaurant shortly after

it opened at 6:00 a.m. and, at gunpoint, took approximately $3,000.

Woodley further testified that the store closed for a period of

time following the robbery2 and that the Euless store is located

approximately five minutes from the Dallas/Fort Worth International

Airport.

In connection with the three McDonald's robberies, the

government introduced the testimony of Richard Matson, the field

1

Defendant Miles was not indicted for this robbery or the

firearm violation connected therewith.

2

Ms. Woodley testified that the store "closed for a while"

following the robbery. In response to the question of how long the

store was closed because of the robbery, Woodley replied, "I don't

recall how long."

3

purchasing manager for the Dallas and Oklahoma regions of

McDonald's. Matson testified that, at the time of the robberies,

the North Watson and Euless stores were company-owned stores that

purchased many of their ingredients and supplies from out-of-state

locations. He also stated that the employee paychecks for the

company stores are received from the McDonald's headquarters in

Chicago, Illinois, and that the stores send their money and

receipts to the Chicago office.

Matson testified that the East Division store was a franchise

store at the time of its robbery and that franchise stores obtain

their food from the same out-of-state vendors as the company

stores. He also testified that the franchise stores send rent

payments and service fees to the McDonald's headquarters in

Chicago.

On cross-examination, Matson stated that, to his knowledge,

the robberies of the three McDonald's restaurants in Tarrant County

did not affect the shipment of goods from out of state to the

distribution centers in Texas. He further admitted that the

employee paychecks, which originated out of state, were not, to his

knowledge, disrupted because of the robberies.

On November 22, 1991, Defendants entered a Colter's Barbecue

and Grill ("Arlington Colter's") shortly after 7:30 a.m. and

removed approximately $1,300 at gunpoint from the restaurant safe.

The robbery occurred during a food delivery prior to the

restaurant's opening. According to the testimony of the restaurant

manager, Susan Brenner, the delivery driver and employees were

4

detained in the restaurant cooler during the robbery. Brenner and

another employee identified the Defendants as the perpetrators.

Brenner also testified that the restaurant is located in Arlington,

Texas, and that it is approximately one-half block from Interstate

Highway 20.

Payton Cullum, a regional vice-president of Colter's,

testified that, at the time of the robbery, the Arlington Colter's

purchased many of its products from out-of-state suppliers in

accordance with the company purchasing policy. Cullum also stated

that Colter's has catered at least one event out of state (in New

York), even though its restaurants are located solely in Texas. He

further testified that money received from sales at the Colter's

restaurants is used, in part, to purchase food and supplies from

out-of-state vendors. Cullum testified that the money taken during

the robbery of the Arlington Colter's would have been used for such

purchases.

On cross-examination, Cullum stated that the robbery of the

Arlington Colter's did not stop the company from purchasing its

products from out-of-state suppliers. Further, Cullum admitted

that, because the restaurant opened on time, the robbery did not

stop travelers on nearby Interstate Highway 20 from being able to

eat at the Arlington Colter’s.

On November 26, 1991, Defendants entered a Taco Bueno

("Arlington Taco Bueno") at 6:00 a.m. during a food delivery. At

gunpoint, the Defendants removed approximately $1,200 from the

restaurant's safe. The store manager, Jon Brdecka, identified the

5

Defendants as the robbers. Brdecka also testified that the

restaurant was not yet open for business at the time of the

robbery. According to Brdecka, he and the delivery driver were

detained in the restaurant cooler for a short period of time during

the robbery. Brdecka also testified that the restaurant is located

on South Cooper in Arlington, Texas, approximately two miles from

Interstate Highway 20. He also stated that the Arlington Taco

Bueno serves people from out of state, that he has occasionally

noticed out-of-state license plates in the parking lot, and that

his paycheck is received from out of state.

John Dunion, the vice-president in charge of purchasing for

the Black Eyed Pea restaurants, which owns Taco Bueno, testified

that Taco Bueno restaurants are located in Texas and Oklahoma and

that the restaurants purchase many of their food products from out-

of-state vendors. Dunion testified that the Arlington Taco Bueno

purchases its food from out-of-state vendors in accordance with the

company guidelines. Additionally, he testified that the money from

the Arlington Taco Bueno is deposited in a local bank and later

wired to a New York bank and held in commercial paper. Dunion

stated that money stolen from the Arlington Taco Bueno affected the

amount wired from Texas to New York for that deposit. On cross-

examination, Dunion testified that the robbery of the Taco Bueno

did not change the out-of-state purchasing habits of the company.

6

PROCEDURAL BACKGROUND

The Defendants were first charged in an eleven-count

indictment filed on April 7, 1992.3 At the time of the first

federal indictment, Defendants were in the custody of the State of

Texas awaiting trial on state charges for other robberies.4 The

federal indictment charged them with conspiracy to interfere with

commerce by robbery in violation of 18 U.S.C. § 1951, four counts

of interference with commerce by robbery in violation of 18 U.S.C.

§ 1951, and four counts of using and carrying a firearm during and

in relation to the commission of a crime of violence in violation

of 18 U.S.C. § 924(c).5 The Defendants each initially agreed to

plead guilty to three of the eleven counts in the indictment in

exchange for dismissal of the remaining counts.6 The plea

agreements, however, were subsequently rejected by United States

District Judge John McBryde as undermining the statutory purpose of

3

On July 1, 1992, the government filed a one-count information

in addition to the original indictment as to Miles only. The count

charged Miles with a felon in possession of a firearm violation (18

U.S.C. § 922(g)) for a separate offense which occurred on November

26, 1991. This information count was later dismissed pursuant to

Miles's second plea arrangement.

4

See infra notes 11-12 (discussing the information available

from the record on appeal regarding the Defendants' state

convictions.

5

Gustus was charged with an additional robbery count and

firearm count.

6

Miles agreed to plead guilty to the conspiracy to commit

robbery count, one firearm violation count, and a charge of

possession of a firearm by a felon in violation of 18 U.S.C. §

922(g). Gustus agreed to plead guilty to the conspiracy count and

two firearm violation counts.

7

sentencing,7 and the Defendants' case was set for trial. On the

day the trial was to begin, the Defendants entered into a second

plea agreement in which they each pleaded guilty to four of the

eleven counts.8 This plea agreement was accepted by Judge McBryde

and the Defendants were sentenced accordingly.9 On appeal, this

Court reversed and remanded, finding that the district court had

improperly participated in the plea negotiations. See United

States v. Miles, 10 F.3d 1135 (5th Cir. 1993).

Upon remand, the case was reassigned to United States District

Judge Terry Means who quashed the original indictment without

prejudice on May 24, 1994. Judge Means noted that the government

failed to allege the requisite effect on interstate commerce, an

essential element of a Hobbs Act violation under 18 U.S.C. § 1951.

The Defendants were reindicted on June 14, 1994, by a federal

grand jury. At the time of this second indictment, Defendants were

serving time in the state prison pursuant to state convictions for

robbery and other offenses. Miles’s state sentence was fifty

7

Under the plea agreement, Miles would have been sentenced to

approximately 204 months (17 years) and Gustus to approximately 480

months (40 years).

8

Miles pleaded guilty to the conspiracy count and three firearm

violation counts in exchange for dismissal of the remaining counts

against him, including the one-count information added to the

indictment. Gustus also pleaded guilty to the conspiracy and three

firearm counts in exchange for dismissal of the remaining counts

against him.

9

Miles was sentenced to a total of 700 months (approximately 58

years) with a three-year term of supervised release on each count.

Gustus was sentenced to a total of 750 months (approximately 63

years) with a three-year term of supervised release on each count.

8

years.10 Defendant Gustus’s state sentence subjected him to life

imprisonment after serving a sentence of fifteen years.11

The second federal indictment charged Defendants with the same

counts and violations as the original indictment, with the

exception that this later indictment included the wording

"interstate commerce."12 The Defendants pleaded not guilty and were

tried by a jury in the court of United States District Judge Eldon

10

Miles was sentenced to 50 years for his participation in the

December 18, 1991, aggravated robbery of a McDonald’s in Cooke

County, Texas. Also, when the presentence investigation report was

prepared for federal sentencing, Miles was under indictment for

aggravated robbery in Rockwall, Texas. Further, a motion to revoke

Miles’s 10-year probation sentence, previously received for another

aggravated robbery conviction, was pending.

11

Gustus was sentenced to 15 years for aggravated robbery and 35

years for aggravated sexual assault in connection with the January

16, 1991, robbery of a Dallas Burger King. Gustus was also

sentenced to 50 years for aggravated robbery and 50 years for

aggravated sexual assault in connection with the October 7, 1991

robbery of a second Burger King restaurant in Dallas. From the

record it is unclear if the above convictions were to run

concurrently or consecutively. Gustus was further sentenced to 35

years, to run concurrently with the previous convictions in Dallas,

for the December 18, 1991, aggravated robbery of a Cooke County

McDonald’s. During the commission of the above mentioned offenses,

Gustus was on probation for another aggravated robbery. Following

the above convictions, Gustus’s 10-year probation sentence was

revoked and he was sentenced to life imprisonment. His life

imprisonment was to run consecutively to his 15-year sentence which

he received previously for the January robbery of the Dallas Burger

King.

12

Defendants were charged with conspiracy to affect interstate

commerce by robbery (count 1), four counts of affecting interstate

commerce by robbery (counts 2, 6, 8, and 10) and four counts of

knowingly carrying and using a firearm in relation to the

commission of a crime of violence (counts 3, 7, 9, and 11). Gustus

was also charged with an additional robbery (count 4) and firearm

count (count 5). All of these counts used the same charging

language. We note that in these counts the government did not use

the statutory phrase "in any way or degree" in describing the

effect on interstate commerce.

9

Mahon. During their trial, Defendants timely moved for dismissal

of their charges on the grounds that the use of a de minimis

standard for determining an effect on commerce was unconstitutional

and that the government failed to show a substantial effect on

interstate commerce as required by the Hobbs Act and the Fifth

Circuit’s decision in United States v. Lopez, 2 F.3d 1342 (5th Cir.

1993), aff’d, 514 U.S. 549 (1995).13 Defendants’ motions were

denied. The Defendants were convicted on all counts and sentenced

as follows:

Miles was sentenced on the federal convictions to a total of

858 months (approximately seventy-two years). Of the total

sentence, seventy-eight months are to run concurrently to the state

sentence that Miles is currently serving in Texas, and the

remaining 780 months are to run consecutively to the state

sentence. Gustus was sentenced to a total of 1,140 months

(approximately ninety-five years). Of Gustus’s total sentence, 120

months are to run concurrently with the state sentences that Gustus

is currently serving in Texas, and the remaining 1,020 months are

to run consecutively to Gustus’s state sentences.

The Defendants filed timely notices of appeal.

DISCUSSION

13

The Defendants relied upon the Fifth Circuit’s decision in

Lopez because at the time of the trial, in late 1994, the U.S.

Supreme Court’s decision affirming the Fifth Circuit’s ruling had

not yet been handed down.

10

Miles and Gustus raise three issues on appeal. We will

address each issue in turn.

I.

Gaudin Error

Miles and Gustus first argue that the district court erred by

instructing the jury incorrectly on the elements of a Hobbs Act

offense, 18 U.S.C. § 1951.14 Holding that Defendants’ argument is

foreclosed by United States v. Parker, 104 F.3d 72 (5th Cir. 1996)

(en banc), cert. denied, 117 S. Ct. 1720 (1997), we find no error.

In relevant part, the district court instructed the jury as

follows:

If you believe beyond a reasonable doubt the

government’s evidence regarding interstate

commerce, to wit, that McDonald’s, Colters, and

Taco Bueno bought and sold merchandise that had

traveled from another state to Texas, or that the

robberies affected sales by the stores of such

merchandise, or that the money proceeds from these

stores moved in interstate commerce, or that these

stores served customers who travel in interstate

commerce, then you are instructed as a matter of

law that there was an effect on interstate

commerce....

14

The Hobbs Act states, in relevant part:

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.

18 U.S.C. § 1951(a).

11

Miles and Gustus argue that the district court’s instruction

impermissibly reserved for itself the question of whether the

alleged acts of the Defendants affected interstate commerce.

Specifically, Miles and Gustus argue that the district court’s

instruction does not comport with the Supreme Court’s holding in

United States v. Gaudin, 515 U.S. 506 (1995), which held that the

Constitution gives a criminal defendant the right to demand that a

jury find him guilty of all the elements of the crime with which he

is charged.

Subsequent to the submission of Defendants’ briefs, this Court

decided United States v. Parker, a case which is, as to the form of

the jury instruction, virtually indistinguishable from the case at

bar. In the Parker case, this Court considered, under the Supreme

Court’s ruling in Gaudin, whether the district court had erred by

reserving for itself the question of whether Parker's alleged acts

affected interstate commerce. In affirming the district court’s

instruction, we held that "the trial court committed no Gaudin-type

error." Parker, 104 F.3d at 73.

The complaint of Miles and Gustus in the instant case is

identical to the complaint of the defendant in Parker. Under the

doctrine of stare decisis, we are bound to adhere to Parker’s

earlier holding. See, e.g., United States v. Arce, 118 F.3d 335,

338 (5th Cir. 1997). In so doing, we hold that the district court

committed no Gaudin-type error.

12

II.

Double Jeopardy

Miles and Gustus argue that they were unconstitutionally

subjected to double jeopardy when they were tried and convicted

under both the Hobbs Act and 18 U.S.C. § 924(c) (using or carrying

a firearm in relation to a crime of violence). They contend that

under the test set forth in Blockburger v. United States, 284 U.S.

299 (1932), these two convictions violate the double jeopardy

prohibition.15 Like the preceding issue, however, the law is

settled in this Circuit. Defendants have no double jeopardy claim.

In United States v. Parker, 73 F.3d 48, 55 (5th Cir.), aff’d,

104 F.3d 72 (5th Cir. 1996), cert. denied, 117 S. Ct. 1720 (1997),

we also examined this same issue and held as follows:

This Circuit has acknowledged that the "same

elements" test [of Blockburger] still controls.

United States v. Martinez, 28 F.3d 444, 446 (5th

Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 281,

130 L.Ed.2d 197 (1994). Martinez case held that §§

1951 and 924(c)(1) passed the Blockburger test

because § 1951 requires proof of threats or force

but not possession of a weapon, while § 924

requires proof that the defendant used or carried a

weapon but not that the weapon was used for threat

or force. Additionally, subsequent to Martinez

this court again addressed the issue in United

States v. Gonzales, 40 F.3d 735 (5th Cir. 1994),

cert. denied, ___ U.S. ____, 115 S. Ct. 1716, 131

L.Ed.2d 575 (1995), holding that cumulative

sentences imposed pursuant to § 924 are permissible

because the legislature intended to authorize such

punishments.

15

Under Blockburger, each conviction must require proof of

a fact or element that the other does not. Blockburger, 284 U.S.

at 304.

13

Parker, 73 F.3d at 55 (footnote omitted).16 Finding that

Defendants’ argument is foreclosed by Parker, we hold that the

district court committed no error on this issue.

III.

Constitutionality of Hobbs Act and Sufficiency of Evidence in Light

of Lopez

Finally, Miles and Gustus argue that, under the Supreme

Court’s decision in Lopez, the Hobbs Act is both unconstitutional

on its face and as applied in this case. They also argue that the

evidence in this case is insufficient to support the finding of

"substantial effect" on commerce, which the Defendants argue is

required by Lopez.

During the pendency of this appeal another panel of this Court

decided United States v. Robinson, No. 96-11165 (5th Cir. Aug. 8,

1997). In Robinson, this Court relied upon United States v.

Bolton, 68 F.3d 396 (10th Cir. 1995), cert. denied, 116 S. Ct. 966

(1996), which reasons that Lopez permits the application of federal

law based on a de minimis nexus to interstate commerce, provided

that the "statute regulates an activity which, through repetition,

in aggregate has a substantial effect on interstate commerce."

Bolton, 68 F.3d at 399. Finding this reasoning unassailable, the

panel in Robinson held:

under the third category of the commerce power

described in Lopez, the particular conduct at issue

16

As to the double jeopardy issue, the original Parker panel’s

holding was affirmed and reinstated by the en banc panel. Parker,

104 F.3d at 73.

14

in any given case need not have a substantial

effect upon interstate commerce. Congress is free

to act -- and the government to apply the law -- so

long as the regulated activity, in the aggregate,

could reasonably be sought to substantially effect

interstate commerce.

Robinson, No. 96-11165, slip op. at 5009.

The argument of Miles and Gustus in the instant case as to the

effect of Lopez upon the Hobbs Act is almost identical to the

contentions of the defendant in Robinson. Under the doctrine of

stare decisis, we are bound by Robinson’s earlier holding.

Accordingly, we AFFIRM the judgments of conviction and sentences of

Gregory Lynn Miles and Gerald Jehoram Gustus.

15

16

DeMOSS, Circuit Judge, specially concurring.

I concur fully with the per curiam disposition of the alleged

Gaudin error in Part I of the foregoing opinion and with the

disposition of the double jeopardy issue in Part II. As to the

issues pertaining to the constitutionality of the Hobbs Act and the

sufficiency of the evidence, I also recognize that our decision is

controlled by the prior decision of this Court in United States v.

Robinson, No. 96-11165 (5th Cir. Aug. 8, 1996); however, I find

myself in such fundamental disagreement with the conclusions in

Robinson as to the effect of United States v. Lopez, 514 U.S. 549

(1995), on Hobbs Act prosecutions that I must register these

contrary viewpoints.

I. United States v. Lopez

In its Lopez decision, the Supreme Court restated certain

"first principles" as the foundation upon which it based its

analysis of the Commerce Clause. The first of these principles is

that the federal government is one of "enumerated powers." Lopez,

514 U.S. at 552; see U.S. CONST., art. I, § 8. These enumerated

powers are few and defined, while the powers which are to remain in

state governments are "numerous and indefinite." Id. (citing THE

FEDERALIST NO. 45, at 292-93 (James Madison) (Clinton Ressiter ed.,

1961)). "Just as the separation and independence of the coordinate

branches of the federal government serve to prevent the

accumulation of excessive power in any one branch, a healthy

balance of power between the States and the Federal Government will

reduce the risk of tyranny and abuse from either front." Id.

(citing Gregory v. Ashcroft, 504 U.S. 452, 458 (1991)). This theme

of the unique contribution of federalism in our system of

government was the key reason for the concurrences of Justices

Kennedy and O’Connor in the Lopez majority decision. In his

concurring opinion, Justice Kennedy, joined by Justice O’Connor,

stated:

The theory that two governments accord more

liberty than one requires for its realization

two distinct and discernable lines of

political accountability: one between the

citizens and the Federal Government; the

second between the citizens and the States.

Id. at 576 (Kennedy, J., concurring).

The next first principle which the Lopez court cited is that

limitations on the commerce power are inherent in the very language

of the Commerce Clause itself. Id. at 553. "The enumeration

presupposes something not enumerated; and that something, if we

regard the language or the subject of the sentence, must be the

exclusively internal commerce of a State." Gibbons v. Ogden, 22

U.S. (9 Wheat.) 1, 195 (1824).

The third principle which the Lopez court referred to was that

the power of the Commerce Clause "is subject to outer limits."

Lopez, 514 U.S. at 557. Quoting from its decision in NLRB v. Jones

& Laughlin Steel Corp., 301 U.S. 1 (1937), the Court warned that

the scope of interstate commerce power, "must be considered in

light of our dual system of government and may not be extended so

as to embrace effects upon interstate commerce so indirect and

18

remote that to embrace them, in view of our complex society, would

effectually obliterate the distinction between what is national and

what is local and create a completely centralized government."

Lopez, 514 U.S. at 557 (quoting Jones & Laughlin, 391 U.S. at 37).

Finally, the Court in Lopez clearly reaffirmed the principle

that the federal government does not have a general police power.

Id. at 566.

Using these first principles, the Supreme Court in Lopez then

identified "three broad categories of activity that Congress may

regulate under its commerce power." Id. at 558. First, Congress

may regulate the use of the channels of interstate commerce

(hereinafter "Lopez Part I"). Id. (citing United States v. Darby,

312 U.S. 100, 114 (1941) and Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241, 256 (1964)). 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 ("Lopez Part

II"). Id. (citing Shreveport Rate Cases, 234 U.S. 342 (1914);

Southern Ry. Co. v. United States, 222 U.S. 20 (1911); and Perez v.

United States, 402 U.S. 146, 150 (1971)). And finally, Congress

may regulate those intrastate economic activities having a

substantial relation to interstate commerce or those activities

that substantially affect interstate commerce ("Lopez Part III").

Id. at 558-59 (citing Jones & Laughlin, 301 U.S. at 37 and Maryland

v. Wirtz, 392 U.S. 183, 196 n.27 (1968)).

Under this last category, the Court recognized in Lopez that

19

its case law had not always been clear as to whether an activity

must "affect" or "substantially affect" interstate commerce.

Nevertheless, the Court clearly concluded that, "consistent with

the great weight of our case law . . . the proper test requires an

analysis of whether the regulated activity ‘substantially affects’

interstate commerce." Id. at 559. In reviewing the history of its

own decisions relating to the exercise by Congress of the Commerce

Clause power, the Court in Lopez twice expressly pointed out that

it has never said that "Congress may use a relatively trivial

impact on commerce as an excuse for broad general regulation of

state or private activities." Id. at 558, 559 (quoting Wirtz, 392

U.S. at 197 n.27).

Accordingly, in measuring the constitutionality of a statute

under the Part III "substantial effects" test, I read Lopez to

establish the following subordinate tests, each of which must be

satisfied to uphold the constitutionality of a statute under Lopez

Part III:

1. Does the regulation control a commercial or economic

activity necessary to the regulation of some interstate

commercial activity;

2. Does the statute include a "jurisdictional nexus"

requirement to ensure that each regulated instance of the

activity substantially affects interstate commerce; and

3. Does the rationale offered in support of the

constitutionality of the statute (i.e., statutory findings,

legislative history, arguments of counsel, findings of a trial

20

court, or a reviewing court’s determination of the purposes of

the statute being challenged) have a logical stopping point

which preserves the distinction between what is national and

what is local in the activities of commerce.

These three subordinate tests must guide a reviewing court’s

determination of a statute’s constitutionality under Lopez Part

III.

In the instant case, the government argues that the Lopez

decision should be confined to its facts. It is obvious that the

statute involved in Lopez, the Gun Free School Zone Act, 18 U.S.C.

§ 922(q)(1)(A), is not the same statute as the Hobbs Act. Based

upon this distinction, the government contends that "United States

v. Robertson, [514 U.S. 669] (1995), decided five days after Lopez,

clearly demonstrates that Lopez is limited to the specific facts of

that case and that statutes such as the Hobbs Act are

constitutional." I see nothing in Robertson to support the

government’s contention.

First, Robertson involved a prosecution under the Racketeer

Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961

et seq., and the critical issue was whether the defendant had

invested drug proceeds in an enterprise which was "engaged in or

affecting interstate commerce" as defined in RICO. In its

Robertson opinion, the Court held that the defendant had invested

in an "enterprise engaged in interstate or foreign commerce."

Robertson, 514 U.S. at 671. The Court did not mention Lopez at all

and declined to address whether or not that enterprise "affected

21

interstate commerce." Id. Furthermore, my research indicates that

the Supreme Court has never addressed the constitutionality of the

Hobbs Act as it applies to robberies, nor has the government cited

any Supreme Court case that upholds the constitutionality of the

Hobbs Act in situations involving robberies. In fact, the Lopez

court, in making its historical review of decisions interpreting

the Commerce Clause, did not cite any of its decisions involving

the Hobbs Act.

Consequently, I would decline the government’s invitation to

limit the language and analysis of the majority opinion in Lopez to

a determination of nothing more than the constitutionality of the

Gun Free School Zone Act. I suggest that it is our function as an

intermediate federal court to carefully examine the language,

reasoning, and analysis of the Supreme Court’s Lopez decision, and

to follow and apply that decision as best we can in this case.

II. The Hobbs Act

The present text of the Hobbs Act was adopted more than fifty

years ago in 1946. It amended an Act "to protect trade and

commerce against interference by violence, threats, coercion and

intimidation," which had previously been adopted in 1934. In 1942,

the United States Supreme Court in United States v. Local 807 of

International Brotherhood of Teamsters, 315 U.S. 521 (1942),

reversed a conviction, under the 1934 Act, of a labor union and

some of its members. The Court held the instructions given by the

trial court did not properly explain the language in the Act which

22

excepted "the payment of wages by a bona fide employer to a bona

fide employee" from the prohibitions of the Act. Local 807, 315

U.S. at 537. This decision precipitated the filing of the bill

which ultimately became the Hobbs Act. The decision caused such a

stir in Congress that its entire text was printed in full in the

report of the House Committee on the Judiciary which recommended

favorable passage of the Hobbs Act. The text of the Hobbs Act

itself does not contain any statutory findings. The report of the

House Judiciary Committee does not contain any legislative

findings; it simply states:

1. "The objective of title I is to prevent anyone from

obstructing, delaying, or affecting commerce, or the movement of

any article or commodity in commerce by robbery or extortion as

defined in the bill." H.R. REP. NO. 79-238, at 1369 (1945).

2. "In the light of the testimony and admissions contained

in the hearings and of the above-quoted provisions of the

Constitution, there must be agreement that those persons who have

been impeding interstate commerce and levying tribute from free-

born American citizens engaged in interstate commerce shall not be

permitted to continue such practices without a sincere attempt on

the part of Congress to do its duty of protecting interstate

commerce." Id. at 1370.

The portions of the Constitution quoted in the committee

report were:

1. "the citizens of each State shall be entitled to all

privileges and immunities of citizens in the several States," id.

23

(quoting U.S. CONST., art. I, § 9, cl. 2); and,

2. "No tax or duty shall be laid on articles exported from

any State," id. (quoting U.S. CONST., art. I, § 9, cl. 5); and,

3. "No state shall, without the consent of the Congress, lay

any impost or duties on imports or exports, except what may be

absolutely necessary for executing its inspection laws...." Id.

(quoting U.S. CONST., art. 1, § 10, cl. 2).

A careful review of the floor debates and dialogues of members

of the House on the subject of the Hobbs Act clearly indicates that

Congress sought to address a particular evil by the passage of the

Hobbs Act: the practice of certain unions and union members in

major cities along the East Coast of the United States,

particularly New York City, who would stop trucks which were

inbound to those cities carrying loads of produce from neighboring

states and force the driver of the truck to either pay in cash a

day’s wage for a New York City union truck driver or to hire a

union truck driver to drive the truck to its destination in New

York City. In these congressional debates, the conduct most

frequently was labeled "extortion" or "paying of tribute." The

term "robbery" was used occasionally, but, more often, the term was

"highway robbery," reflecting the speaker’s focus on both the

location where the stop and "robbery" would occur, and the fact

that the individual victims were the drivers of the inbound

trucks.1 In these legislative debates there is absolutely no

1

See 91 CONG. REC. 11,899-922 (1945); see also Sam Hobbs,

The Hobbs Anti-Racketeering Bill, 13 JBA DIST. COLUM. 101-11 (1946).

The following are two quotations from the Congressional Record of

24

discussion which would indicate an intention on the part of

the House debates, describing the circumstances typically discussed

as justifications for the Hobbs Act:

Here comes a farmer with a load of

produce -- milk, butter, eggs, vegetables,

potatoes, things he has raised and produced

upon his farm. He owns that property. Into

it has gone his toil and his sweat, and that

of his wife and children, some of whom may

accompany him. As they near a State line in

going to market to sell the produce a thug

they never saw before or a coterie of thugs

comes up to the truck and says, "Here, stop

your truck." The farmer says, "Why, I do not

want to stop my truck. I am going to market."

The thug says, "Yes; but you stop your truck

now." The farmer asks, "Well, what do you

want?" The thug, "I want $9.42 if it is a big

truck or $8.41 [if] it is a little truck."

The farmer says, "I don’t want to pay it.

I don’t need your help." The thug says, "Yes;

but if you do not pay me I will knock you in

the head and knock your child or your wife in

the head." Maybe it is the man’s wife who is

with him. Then, in fear, not wishing to be

mutilated or perhaps killed, and not desiring

to see his wife and child killed, the farmer

pays the money.

91 CONG. REC. 11,911 (1945) (statement of Rep. Jennings).

Hon. Joe Eastman, then head of the Office

of Defense Transportation, told me that his

examiners reported 1,000 trucks a night being

held up and robbed in various cities of this

Union from Los Angeles to Seattle, across

through Milwaukee, Chicago, and through

Scraton, Pa., which was another hot spot,

Philadelphia, New York, and over 100 a day at

the New York end of the Holland Tunnel. He

was there begging as a witness in 1943,

pleading the cause of defense transportation,

and called attention to the numbers and

numbers of trucks loaded with shells and guns

for our Army and Navy which were held up and

robbed by those goons at the mouth of the Holland Tunnel.

Id. at 11,912 (statement of Rep. Hobbs).

25

Congress to reach robberies which might occur at the retail

locations where the produce might ultimately be delivered.

Likewise, there is no discussion in these legislative debates as to

what significance, if any, Congress attached to the words "in any

way or degree" (which were included in the Hobbs Act, just as they

had previously been included in the 1934 Act).

I turn now to the text of the Hobbs Act itself. For purposes

relevant to this case, the Hobbs Act states:

(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 conspires so to do

... shall be fined under this title or

imprisoned not more than twenty years or both.

(b) As used in this section --

(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

....

****

(3) The term "commerce" means ...

all commerce between any point in a

State, Territory, Possession, or the

District of Columbia and any point

outside thereof....

18 U.S.C. § 1951. Giving the words used in the statute their

common, ordinary meaning, Moskal v. United States, 498 U.S. 103,

108 (1990), I construe the statute as follows:

26

The gravamen of the offense proscribed by the Hobbs Act is the

obstructing, delaying, or affecting of interstate commerce. The

words "by robbery" define the cause or method by which the delay,

obstruction, or effect on interstate commerce is produced.

The elements of the crime which must be proved beyond a

reasonable doubt by the government are (i) the delay, obstruction,

or effect on interstate commerce and (ii) that such delay,

obstruction, or effect was caused by robbery. The phrase "in any

way or degree" modifies the verbs "obstructs, delays, or affects."

The phrase "commerce or the movement of any article or

commodity in commerce" is the object of the verbs "obstructs,

delays, or affects."

The prepositional phrase "between any point in a State,

Territory, Possession or the District of Columbia and any point

outside thereof" is the essential element of the definition of

"commerce" in subparagraph (b)(3); if that prepositional phrase is

inserted after the word "commerce" (where it appears in two places

in the opening sentence of subparagraph (a)), a clearer sense of

the prohibited conduct is apparent.

The dictionary definition of "commerce" is "an interchange of

goods or commodities between different countries or between areas

of the same country; trade." WEBSTER’S COLLEGE DICTIONARY 272 (1991).

The definition of the term "trade" is "the act or process of

buying, selling, or exchanging commodities at either wholesale or

retail, within a country or between countries." Id. at 1413.

"Affect" primarily means "to produce an effect or change in." Id.

27

at 23. The dictionary definition of the noun "effect" is

"something that is produced by an agency or cause; result;

consequence." Id. at 426. Applying these common, everyday

definitions, I conclude that the word "commerce," as used in the

Hobbs Act, clearly means an activity or process between a point in

one state and a point in another state. The verbs "delay,

obstruct, or affect" make good sense if the word "commerce" is read

to mean such an activity or process. Neither the verb "delay" nor

the verb "obstruct" makes good sense if the word "commerce" is

construed to mean "an entity engaged in commerce."

Finally, I note that there is nothing in the language of the

Hobbs Act that purports to define "who" might be the victim of the

robbery as defined therein. Nor is there any language that

purports to define "who" might be engaging in the interstate

commerce defined therein.

III. Constitutionality of the Hobbs Act Under Lopez Part I

Taking into consideration the plain language of the Hobbs Act

itself, the insights given by its legislative history, and the

language of the Supreme Court in Lopez, I pass quickly over Lopez

Part I because I can see no basis in law or fact for finding that

the food outlets where the robberies occurred in this case were

channels of interstate commerce. The meaning of the term "channel

of interstate commerce," Lopez, 514 U.S. at 558, must refer to the

navigable rivers, lakes, and canals of the United States; the

interstate railroad track system; the interstate highway system;

28

the interstate pipeline systems; interstate telephone and telegraph

lines; air traffic routes; television and radio broadcast

frequencies; and satellite communication frequencies on, over, and

through which flow the goods, commodities, and information which

constitute commerce between places in different states. There is

no evidence or testimony whatsoever in this case that would permit

a conclusion that any of the retail food outlets in this case

constituted "a channel of interstate commerce." Under Part I of

Lopez, therefore, the Hobbs Act is facially constitutional, but

nothing supports the constitutionality of the Hobbs Act as applied

to the facts in this case.

IV. Constitutionality of the Hobbs Act Under Lopez Part II

Under Part II of Lopez, the Supreme Court recognized that

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." Lopez, 514 U.S. at 558. As indicated by

the cases cited by the Supreme Court in identifying Part II powers,

I read the term "instrumentalities of interstate commerce" to refer

to trains, planes, cars, trucks, boats, and other vehicles by which

people or commodities move in a channel of commerce; I read the

term "persons in commerce" to mean passengers, travelers,

operators, or crew members on the instrumentalities of interstate

commerce; and I read the term "things in interstate commerce" to

mean the goods or commodities being transported as cargo in

29

interstate commerce. I note that the Supreme Court used the verb

"protect" as well as the verb "regulate" in defining Part II.

Clearly under Part II of Lopez, the Hobbs Act is facially

constitutional as an exercise of congressional power to regulate

and protect the instrumentalities, people, and goods actually

moving in interstate commerce from robberies. Yet there is no

evidence or testimony in this case which could support a conclusion

that any "instrumentality of commerce," any "persons . . . in

interstate commerce," or any "things in interstate commerce" were

"obstruct[ed], delay[ed], or affect[ed]" by the subject robberies.

In the Hobbs Act, the term "robbery" is defined as "[t]he

unlawful taking or obtaining of personal property from the person

against his will by force, or violence." 18 U.S.C. § 1951(b)(1).

How can a robbery delay, obstruct, or affect commerce or the

movement of any article or commodity in commerce? Obviously, if

the "personal property" which is taken as part of the robbery is

itself a commodity "in interstate commerce," then there could be an

obstruction of the movement in interstate commerce of that

commodity, regardless of the quantity or value of that commodity

which was taken. Likewise, if the person who is robbed is,

himself, "in interstate commerce" (either as a passenger or a

traveler, or as an operator or crew member of an instrumentality of

interstate commerce operating in interstate commerce), then

whatever is taken from that person (whether it be cash money,

watches, jewelry, or credit cards, regardless of the quantity,

number, or value, thereof) could constitute an effect on commerce

30

because Congress intended that such passenger, traveler, operator,

or crew member would be protected while in interstate commerce.

These are the very circumstances and events which the legislative

history shows that Congress clearly had in mind when it passed the

Hobbs Act. These are also the circumstances which are compelled by

the plain, common-sense reading of the words of the Hobbs Act.

Thus, under Part II of Lopez, what was taken in the robbery,

and the person from whom such property was taken, determine whether

the robbery "delay[ed], obstruct[ed], or affect[ed] interstate

commerce." In each of the robberies involved in this appeal, what

was taken was cash from the cash register or safe of a retail fast

food outlet. From where did this cash come? It came from

customers as the proceeds from sales conducted on the premises of

the fast food outlets after these customers paid cash money over

the counter for the food products available. These customers were

the final retail consumers of these food products. These sales

transactions were exclusively local and intrastate in nature and

were taxable by the State of Texas under its general sales tax.

Both seller and buyer were in the same place and the transfer of

possession took the form of hand-to-hand and person-to-person

exchange, both as to the food product being sold and bought and as

to the money being given therefor as consideration. I would

conclude, then, that as a matter of law, the money taken from the

cash register was not a commodity or product moving in interstate

commerce.

31

Likewise, the persons from whom this cash was taken do not

qualify as persons "in interstate commerce." In this case, there

is absolutely no evidence that any interstate passenger or traveler

was even present on the occasion of any robbery, much less that any

such passenger or traveler was actually robbed of any of his

personal property. In one instance, there is testimony that the

driver of a delivery truck was present during one of the robberies.

Yet, as to this occasion, there is no testimony (i) that this

driver was making any kind of interstate delivery, nor (ii) that

any of the product which he was delivering was taken in the

robbery, nor (iii) that any of his personal property was taken.

Because the employees of the fast food outlet were obviously

present during the robberies, the critical question becomes whether

these employees can be considered operators or crew members of any

instrumentality of interstate commerce. I think not. An instru-

mentality of interstate commerce is something which effectuates the

movements of goods, commodities, or information from a place in one

state to a place in another state. In the case of goods and

commodities, the essential features of an instrumentality are its

abilities to move and to transport such commodities. The fast food

outlets in this case have neither essential feature. Consequently,

because neither the cash which was taken, nor the persons from whom

the cash was taken, meet the test of being "in interstate

commerce," I conclude that the evidence in this case is wholly

32

insufficient to support a finding under Lopez Part II that the

robberies at issue "delay[ed], obstruct[ed], or affect[ed]"

interstate commerce.

V. Constitutionality of the Hobbs Act Under Lopez Part III

With respect to Lopez Part III, the Supreme Court recognized

in Lopez that its case law had not always been clear as to whether

an activity must merely "affect" or "substantially affect"

interstate commerce to be within Congress’s regulatory power.

Lopez, 514 U.S. at 559. However, the Court clearly concluded that

"consistent with the great weight of our case law . . . the proper

test requires an analysis of whether the regulated activity

‘substantially affects’ interstate commerce." Id. In reviewing

the history of its own decisions relating to the exercise by

Congress of its Commerce Clause power, the Court in Lopez stressed

that it "has never declared that ‘Congress may use a relatively

trivial impact on commerce as an excuse for broad general

regulation of state or private activities.’" Id. (quoting Wirtz,

392 U.S. at 196 n.27).

Prior to the decision in Robinson, our Circuit tested two

other criminal statutes against Lopez’s requirement of a

substantial effect on interstate commerce. In United States v.

Kirk, 105 F.3d 997 (5th Cir. 1997) (en banc), petition for cert.

filed, 65 U.S.L.W. 3756 (U.S. May 5, 1997) (No. 96-1759), an

equally divided en banc court affirmed a conviction for intrastate

possession of a machine gun, 18 U.S.C. § 992(o). Three opinions

33

were filed by various judges of this Court, two opinions (endorsed

by a combination of eight judges) upholding the constitutionality

of § 922(o), and one opinion (endorsed by eight other judges)

holding that § 922(o) did not satisfy the test of Lopez Part III.

It is important to note, however, that each and every opinion in

Kirk recognized that Lopez required the use of the adverb

"substantially" in testing whether an effect on commerce passed

constitutional muster. See Kirk, 105 F.3d at 978 (opinion of

Parker, J.), 999-1000 (opinion of Higginbotham, J.), 1008 (opinion

of Jones, J.).

Subsequently, in United States v. Corona, 108 F.3d 565 (5th

Cir. 1997), we upheld the constitutionality of a federal criminal

statute involving purely intrastate activity under the third Lopez

category by reading into the statute a requirement that the

intrastate activity involved must substantially affect interstate

commerce. The Corona decision affirmed an arson conviction

involving the burning of a building rented by a taxi company. In

addition to its customary purely local trips, the taxi company

offered transportation to interstate travelers arriving at an

airport. We reasoned that Congress could criminalize the specific

activity involved, i.e., the burning of a taxi company warehouse,

because destruction of such a building could have a substantial

effect upon interstate commerce. Corona, 108 F.3d at 571.

We also concluded that under Lopez, Congress cannot

constitutionally make all arsons federal crimes; only those arsons

which substantially affect interstate commerce are subject to

34

federal regulation. The prosecution of other arsons is solely a

state concern. Thus an element of the crime of federal arson is

that the defendant’s actions had a substantial effect upon

interstate commerce. This of course requires a case-by-case

analysis. We analyzed the evidence in Corona and concluded that

the burning of a taxi-cab warehouse had such an effect and was

therefore a federal crime. 18 U.S.C. § 844(i).

Corona is important to our consideration of the Hobbs Act

because, like the Hobbs Act, the arson statute does not expressly

require that the activity regulated must have a "substantial"

effect upon interstate commerce.2 Lopez imposes the same

requirement for a constitutional prosecution of robbery under the

Hobbs Act: the robbery must have a substantial effect upon

interstate commerce to constitute a federal crime.

I would apply the same reasoning in testing the facial

constitutionality of the Hobbs Act under the third category of

Lopez. I would hold that the Hobbs Act is constitutional as

applied to a robbery or a robbery conspiracy only if the robbery

substantially affects interstate commerce. To the extent that the

Hobbs Act is read to make it a federal crime to commit a robbery

which affects interstate commerce "in any [insubstantial or de

minimis] way or degree," it is unconstitutional under Lopez.

2

Under the arson statute, the property involved must be

"used in interstate or foreign commerce or in any activity

affecting interstate or foreign commerce." 18 U.S.C. § 844(i).

35

I recognize that my conclusion conflicts with our Circuit’s

decision in Robinson and with the decisions of other circuits which

have also rejected the "substantial effect" test with respect to

the Hobbs Act.3 Respectfully, I think that our application of the

"substantial effect" test to the arson statute in Corona and to §

922(o) in Kirk mandates our application of the "substantial effect"

test to the Hobbs Act. The decision in Robinson is in conflict

with our prior holdings.

VI. Sufficiency of the Evidence

The district court denied Defendants’ motion for judgment of

acquittal, which was made at the end of the government’s case-in-

chief and renewed at the close of evidence. The court relied upon

then-Circuit precedent that a de minimis effect upon interstate

commerce was sufficient to sustain a conviction under the Hobbs

Act. See United States v. Collins, 40 F.3d 95, 99 (5th Cir. 1994),

cert. denied, 514 U.S. 1121 (1995); United States v. Stephens, 964

F.2d 424, 429 (5th Cir. 1992); United States v. Wright, 804 F.2d

843, 844 (5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987).

However, in my view, Lopez controls, and the "substantial effects"

standard applies.

3

On the other hand, I am not alone in the belief that

Lopez calls for genuine review under the substantial-effect

standard. See, e.g., United States v. Wall, 92 F.3d 1444 (6th Cir.

1996) (Boggs, J., dissenting). Cf. United States v. Nguyen, 117

F.3d 796, 798-800 (5th Cir. 1997) (Jones, J., dissenting)

(advocating the application of the substantial effects standard to

review of a conviction under the federal arson/explosion statute,

18 U.S.C. § 844(i)).

36

The dictionary gives two primary meanings for "substantial":

1. "of ample or considerable amount, quantity, size, etc.,"

and

2. "of a corporeal or material nature; real or actual."

WEBSTER’S COLLEGE DICTIONARY, supra, at 1332. One meaning is quantita-

tive, the other is qualitative. Both meanings are necessary to

fulfill the function which the Supreme Court must have intended

under Lopez III.

The quantitative meaning (i.e., ample amount) harmonizes with

the Supreme Court’s statement in Lopez that "a relatively trivial

impact on commerce" cannot be used "as an excuse for broad general

regulation of state or private activities." Lopez, 514 U.S. 558

(quoting Wirtz, 392 U.S. at 196 n.27). The qualitative meaning

(i.e., real or actual) is necessary to fix the "outer limits" of

the Commerce Clause. Id. at 557. If an effect on commerce need

only be hypothetical or conjectural or speculative or assumable,

then for all practical purposes, the requirement of an effect on

commerce is unlimited -- it extends to the broadest reach of the

human imagination.

Imaginative prosecutors and judges have produced the concepts

of "de minimis effect" and "depletion of assets," both of which

rest upon a speculative and conjectural assumption of an effect on

interstate commerce. I cannot reconcile these concepts, which our

Court in Robinson reaffirmed, with the new rule of Lopez; the

effect of the regulated activity on interstate commerce must be

substantial, that is, considerable in amount and real or actual in

37

nature. In Lopez, the Supreme Court expressly rejected the "cost

of crime" and "national productivity" theories which the government

offered in support of the constitutionality of the Gun Free School

Zones Act. See id. at 564-67. I would hold that the "de minimis

effect" and the "depletion of assets" theories should be similarly

rejected.

The evidence in this case, even when viewed in a light most

favorable to the verdict, is not sufficient to establish that the

Defendants’ activities in any of the robberies had a substantial

effect upon interstate commerce.

There is testimony in this record from which a jury could

reasonably conclude that each of these fast food outlets bought

ingredients from out-of-state suppliers; however, there is no

testimony, whatsoever, in this record upon which a jury could

reasonably conclude (or a judge determine as a matter of law) that

any of those purchases of ingredients were affected by the

robberies. There is testimony in this record upon which a jury

could reasonably conclude that these fast food outlets occasionally

served customers who travel in interstate commerce; however, there

is no testimony, whatsoever, in this record upon which a jury could

reasonably conclude (or a judge determine as a matter of law) that

the service of such interstate customers was substantially affected

by the robberies. There is evidence in this record upon which a

jury could reasonably conclude that, for relatively short periods

of time (thirty minutes to two hours), these fast food outlets were

closed following the occurrence of these robberies; however, there

38

is absolutely no testimony in this record upon which a jury could

reasonably conclude (or a judge determine as a matter of law) that

such closures substantially affected interstate commerce.4 There

is testimony in this record upon which the jury could have

reasonably concluded that the McDonald’s franchise outlet would

send rent payments and service fees to the McDonald’s headquarters

in Chicago; however, there is absolutely no evidence in this record

upon which the jury could reasonably conclude (or a judge determine

as a matter of law) that such payments were obstructed, delayed, or

affected by the robberies. There is evidence in this record upon

which the jury could reasonably conclude that the employees at the

company-owned McDonald’s outlets received their paychecks from out

of state; however, there is absolutely no testimony in this record

upon which the jury could reasonably conclude (or a judge determine

as a matter of law) that the receipt of such paychecks was

obstructed, delayed, or affected by the robberies.

The government tried these Defendants on the theory that the

Hobbs Act required the government to prove only that (i) the

Defendants committed a robbery, and (ii) the fast food outlets

where the robberies occurred had some de minimis connection with

interstate commerce. Under the government’s theory, the second

element could be proven by establishing that: the fast food outlets

received, from out-of-state sources, ingredients which they used in

4

This is true for two reasons. First, there is not a

shred of testimony that identifies the sales that might have been

lost. Second, and more critically, any sales that might have been

lost would have been local in nature.

39

their fast food products; employees in these fast food outlets were

paid with checks that were sent from out-of-state sources; proceeds

from sales of fast food products at these outlets would be sent to

a local bank for forwarding to a home office outside of the State

of Texas; these fast food outlets were located on major

thoroughfares and highways; and these fast food outlets sometimes

served customers who traveled in interstate commerce. Under the

government’s theory, proof of these factual circumstances would be

sufficient because under Circuit Court precedents, these

circumstances would permit the district judge to infer or assume,

as a matter of law, that there was a de minimis effect on commerce.

Under this theory, such an inference would not require proof that

any actual effect had in fact occurred. In my view, the facts and

circumstances proven by the government, i.e., that the fast food

outlets involved "bought and sold merchandise that had traveled

from another state to Texas," do not constitute direct evidence

that the robbery caused any obstruction, delay, or effect on

commerce. Nor do these facts permit a reasonable inference to that

effect. As a matter of fact, the witness tendered by the

government in this case to establish these out-of-state purchases

admitted on cross-examination that the robbery did not affect those

purchases. If the purchase of ingredients from out-of-state

sources was not affected by the robbery, then proof that out-of-

state purchases were made cannot have any logical bearing on

whether there was an effect on commerce. The same is true for each

of the other circumstances referred to by the government in its

40

brief and relied upon by the district court in its instruction to

the jury.

In reality, what the de minimis concept does is permit the

Hobbs Act to be read as if it said "whoever robs a business engaged

in interstate commerce shall be fined hereunder or imprisoned for

twenty years or both." This interpretation permits conviction upon

proof that goods were bought or sold in interstate commerce,

customers traveled between states, or sales proceeds were

transferred from one state to another. Obviously, this is not what

the Hobbs Act states.

Furthermore, if the Hobbs Act is construed to prohibit

robberies of any business engaged in interstate commerce, and if

"being engaged in interstate commerce" means no more than that a

business buys something from an interstate supplier or sells

something to an interstate traveler, then such judicial

interpretation extends the Hobbs Act to robberies of almost every

business establishment in this land. If the de-minimis-effect-on-

commerce test is still good law after Lopez, then Robinson and the

instant case mean that the Hobbs Act will be similarly applicable

to drug stores, grocery stores, ice cream shops, barber shops,

beauty shops, jewelry stores, video stores, auto parts stores,

liquor stores, pawn shops, and cleaners and pressers. All of these

are frequent targets of robbers. Almost every one of these

businesses will have some inventory from out of state and customers

who could be traveling between states.

41

The de-minimis-effect-on-commerce concept, therefore, violates

two of the first principles articulated by the Supreme Court in

Lopez:

1. that the federal government does not have a general

police power, Lopez, 514 U.S. at 561 n.3; and,

2. that "[t]he scope of the interstate commerce power ‘must

be considered in the light of our dual system of government and may

not be extended so as to embrace effects upon interstate commerce

so indirect and remote that to embrace them, in view of our complex

society, would effectually obliterate the distinction between what

is national and what is local.’" Id. at 557 (quoting Jones &

Laughlin, 301 U.S. at 37).

The prosecution of local crimes is generally considered to be

a state function. This is borne out by the circumstances of the

way the robberies in this case were investigated. There is no

evidence that the Federal Bureau of Investigation, the Drug

Enforcement Agency, the Bureau of Alcohol, Tobacco, and Firearms,

or any other federal agency had anything to do with the initial

investigation of any of these robberies. Nor were they involved

with the initial identification and apprehension of the Defendants.

Detectives from the local police department in the county where

these robberies occurred obtained statements from the victim

witnesses, took fingerprints at the scene, and ultimately secured

a written confession from one of the Defendants. All indications

pointed toward a speedy and successful prosecution of these

Defendants under Texas law, and Texas statutes provide for the

42

enhancement of sentences for repeat offenders and career criminals.

Indeed, prior to the federal trial, both Defendants had been

convicted in state proceedings for other similar robberies and were

in state prison serving sentences of fifty years or life without

parole. The State of Texas did all of the initial investigatory

work and was prepared to go forward with state prosecutions as to

the particular robberies in this case.

For the foregoing reasons, I conclude that the Hobbs Act is

constitutional as applied to three types of robberies: those which

occur in or involve the use of a channel of interstate commerce,

those which involve persons or things in interstate commerce, and

those robberies which have a substantial effect upon interstate

commerce. But the Hobbs Act can no longer be constitutionally

applied to robberies which produce only a de minimis effect upon

interstate commerce, such as those for which the Defendants were

convicted in this case. The evidence, when viewed in the light

most favorable to the government, falls short of establishing that

these Defendants substantially obstructed, delayed, or affected

interstate commerce or the movement of any article or commodity in

commerce, by robbery or conspiracy to commit robbery.

Accordingly, were I free of the precedent of this Circuit as

announced in United States v. Robinson, I would reverse the

judgments of conviction and sentences of Defendants and remand the

case to the district court with instructions to dismiss the

indictments.

43