# United States v. Leo Darryl Harrington

> Court of Appeals for the D.C. Circuit · March 25, 1997 · 108 F.3d 1460

URL: https://www.frixlaw.com/law-library/cases/9490114

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Leo Darryl HARRINGTON, Appellant
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** March 25, 1997
- **Citations:** 108 F.3d 1460; 323 U.S. App. D.C. 431; 1997 U.S. App. LEXIS 5476; 1997 WL 130592
- **Precedential status:** Published
- **Opinion:** Dissent by Sentelle
- **Judges:** Rogers, Sentelle, Wald
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9490114

## How later opinions describe it (automated extraction)

- holding that the defendant knew to a practical certainty that his partner would use a gun when the defendant previously knew nothing of the firearm, but still acted as the getaway driver after seeing said partner fire a gun at pursuing officers
- noting Advisory Committee notes to Rule 23 suggest if trial is “a relatively short and simple one ..., a trial court ‘might well’ decide that a mistrial is appropriate, while for longer and more complex trials courts would be ‘more likely’ to decide against a mistrial” (quotin…

## Opinion text

SENTELLE, Circuit Judge,
dissenting:
I recognize that the way in which the court’s opinion construes and applies the Hobbs Act to this unremarkable local robbery is consistent with the few eases that have dealt with similar questions. I further recognize that the construction and application by other courts and now by this one is consistent with the language of 18 U.S.C. § 1951 (a). I dissent because in my view that construction and application raises such drastic constitutional implications as to warrant a more restricted definition of the interstate commerce element of that statute. I would therefore reverse appellant’s conviction, based on the district court’s denial of defendant’s motion for a judgment of acquittal.
A. The Statute
The language of the Hobbs Act robbery statute is quite sweeping:
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 ... shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951 (a). “Commerce” is defined in broad terms as including “all commerce between any point in a State, Territory, Possession, or the District of Columbia, and any point outside thereof-” Id. § 1951(b)(3). As the majority notes, the commerce definition also includes “commerce within the District of Columbia.” Id. However, because the government did not rely on that section at trial, or in its appellate arguments, and especially because the jury was instructed on the interstate commerce theory and therefore never had a chance to pass on defendant’s guilt under a theory based on Congress’s plenary power over the District, the majority rightly sets aside that possible basis for affirmance. Maj. Op. at 1464, n.l. Instead, the federal power claimed by the indicting decision of the United States extends virtually plenary power to events in the several states.
As this case illustrates, under the theory of the prosecution, there is no armed robbery of a commercial victim not covered by the Hobbs Act. There is no corner grocery in Kansas that does not stock orange juice from Florida or California; none in Florida or California that does not stock salt from some other state. Under the government’s theory of this case, Congress, in passing the Hobbs Act, intended to federalize the robbery of every Mom and Pop restaurant that buys coffee, spices, or fruit from out of state. That is all of them.
It strikes me as a most odd result that Congress would have gone to the trouble of including a separate clause covering “commerce within the District of Columbia” when it was just about to cover all commerce everywhere in the next few clauses. I am tempted to say that this odd result is sufficient to lead me to a different construction, based on the theory that “absurd results which follow from giving ... broad meaning to the words [of a statute], make it unreasonable to believe that the legislator intended to include” that breadth. Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 454 , 109 S.Ct. 2558, 2566-67 , 105 L.Ed.2d 377 (1989) (quoting Church of the Holy Trinity v. United States, 143 U.S. 457, 459 , 12 S.Ct. 511, 512 , 36 L.Ed. 226 (1892)). However, as Justice Kennedy pointed out in Public Citizen , the Holy Trinity exception invoked by the majority in that case is “a legitimate tool of the judiciary ... only as long as the Court acts with self-discipline by limiting the exception to situations where the result of applying the plain language would be, in a genuine sense, absurd,” id. at 470 , 109 S.Ct. at 2575 (Kennedy, J., concurring), that is, where it is impossible to conceive “that Congress could have intended the result,” id. at 471 , 109 S.Ct. at 2575 (Kennedy, J., concurring). Otherwise, the court runs the risk of imposing its own will instead of a judgment. This is not such a case. The statute says what it says, and I must presume that it means what it says.
*1474 More tempting still is the “ ‘cardinal principle,’ ” invoked in Public Citizen , that where “ ‘a serious doubt of constitutionality is raised, ... th[e] Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ ” 491 U.S. at 465-66 , 109 S.Ct. at 2572 -73 (quoting Crowell v. Benson, 285 U.S. 22, 62 , 52 S.Ct. 285, 296-97 , 76 L.Ed. 598 (1932)). I would invoke that cardinal principle in this case because I think the interpretation urged by the United States and adopted by a majority both of this panel and other circuits raises a serious doubt as to the constitutionality of the Act, at least as applied here.
B. The Jury Instruction
Although appellant asserts that the district court erred in instructing the jury on the element of interstate commerce, he did not raise this objection in the trial court. Therefore, for appellant to prevail on appeal, the alleged error must be “plain” in the sense that it must be clear or obvious, and even then it will require reversal only if it affected the outcome of the trial. United States v. Gatling, 96 F.3d 1511, 1524-25 (D.C.Cir. 1996). As the district court’s instructions in this case are consistent with authoritative decisions of other circuits, and as we have never passed on the question, I would be unable to conclude, even were I writing for the majority, that any error in instruction met that exacting standard. See, e.g., United States v. Atcheson, 94 F.3d 1237 (9th Cir. 1996), cert. denied, - U.S. -, 117 S.Ct. 1096 , 137 L.Ed.2d 229 (1997); United States v. Farmer, 73 F.3d 836 (8th Cir.), cert. denied, - U.S. -, 116 S.Ct. 2570 , 135 L.Ed.2d 1086 (1996); United States v. Bolton, 68 F.3d 396 (10th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 966 , 133 L.Ed.2d 887 (1996); United States v. Stillo, 57 F.3d 553 (7th Cir.), cert. denied, - U.S. -, 116 S.Ct. 383 , 133 L.Ed.2d 306 (1995); United States v. Zeigler, 19 F.3d 486 (10th Cir.), cert. denied, - U.S. -, 115 S.Ct. 517 , 130 L.Ed.2d 422 (1994). However, I do not mean to imply that I approve of the instructions given by the district court. Rather, for the reasons set forth in the next section of this dissent, I would require instructions consistent with the more demanding evidentiary standard which I believe should be properly applied in this and other Hobbs Act robbery cases.
C. Sufficiency of the Evidence
The district court, a majority of this panel, and the few other circuits that have passed on the question have concluded that the de minimis connection to interstate commerce of the otherwise local robbery of a retail establishment is sufficient to allow the Hobbs Act constitutionally to apply. I disagree.
There are, as the majority and I have both noted, few cases construing the Hobbs Act in this context. I speculate that it is because few United States attorneys have ever been of the bold and aggressive view that Congress intended to put them in the business of prosecuting what would normally be a mainstay of the docket of the local district attorney — a consideration perhaps of less moment in the District of Columbia, where a single official serves as both the federal and local prosecutor, but still of relevance in choosing the court in which the ease is brought and therefore of the statute under which it is said to lie. However, the Hobbs Act covers not only robbery but extortion, and the same question has arisen there. In that context, one circuit noted that “the nexus between the extortionate conduct and interstate commerce may be de minimis but it must nonetheless exist.” United States v. Lotspeich, 796 F.2d 1268, 1270 (10th Cir.1986). Furthermore, there is authority that holds, quite sensibly, that this section places robbery and extortion on equal ground regarding the jurisdictional requirement of affecting commerce. United States v. Jarrett, 705 F.2d 198, 201 (7th Cir.1983), cert. denied, 465 U.S. 1004 , 104 S.Ct. 995 , 79 L.Ed.2d 228 (1984). In considering what the interstate commerce element of the extortionate prohibition of the Hobbs Act requires, one circuit, taking the wording of the Act in light of its legislative history, concluded that despite the breadth of the statutory phrase “ ‘[wjhoever in any way or degree obstructs, delays, or affects commerce ... by extortion,’ ” Congress actually “intended to protect the free flow of commerce and prevent exaction of any unlawful tribute from interstate commerce” and had *1475 no “intent whatsoever to punish activity absent some adverse effect on interstate commerce.” United States v. French, 628 F.2d 1069, 1075-76 (8th Cir.) (citation omitted), cert. denied, 449 U.S. 956 , 101 S.Ct. 364 , 66 L.Ed.2d 221 (1980).
I think it dangerous, to the point of the constitutional peril of crossing the legitimate bounds of separation of powers concepts, to depart from the literal wording of the statute based on a court’s conception of what the legislative history might indicate. Nonetheless, I am willing to tread that perilous path where a literal but broad reading of a statute would raise serious constitutional questions and a narrower construction would avoid that constitutional difficulty. Cf. Crowell v. Ben son, 285 U.S. at 62 , 52 S.Ct. at 296-97 .
The constitutional question raised by the breadth of the prosecution’s interpretation of the commerce clause by the present application of the Hobbs Act is illustrated by United States v. Lopez, 514 U.S. 549 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995). In that case, the Supreme Court declared that it would not construe the commerce clause so as to convert constitutional “congressional authority ... to a general police power of the sort retained by the States.” Id. at -, 115 S.Ct. at 1634 . Rather, the Court concluded that “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.” Id. at-, 115 S.Ct. at 1629-30 (citation omitted). That interpretation of the commerce clause is itself a fairly broad one. What the commerce clause actually says is that “Congress shall have Power ... To regulate Commerce ... among the several States.” U.S. Const, art. I, § 8, cl. 3. Nonetheless, under the commerce clause, as authoritatively construed by the Supreme Court in Lopez , Congress has the power to regulate commerce and, by derivative inclusion, “activities that substantially affect interstate commerce.” 514 U.S. at-, 115 S.Ct. at 1630 . Harrington, by robbing a store, was not engaged in interstate commerce. I would submit that he did not by robbing a local retail outlet — even one connected with an interstate chain — substantially affect interstate commerce.
I concede, as other circuits have noted, that Lopez further states that “where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Lopez , 514 U.S. at -, 115 S.Ct. at 1629 (internal quotations omitted), relied upon in United States v. Boyd, 1997 WL 86027, at *1 (4th Cir.1997) (unpublished opinion); United States v. Leslie, 103 F.3d 1093, 1100 (2nd Cir.1997); Atcheson, 94 F.8d at 1241; Farmer, 73 F.3d at 843 ; Bolton, 68 F.3d at 399 ; and Stillo, 57 F.3d at 558 n. 2. However, I find this language insufficient to support the government’s broad interpretation of the congressional power under the commerce clause to extend the Hobbs Act to this case.
First, I note that the quoted language from Lopez is itself a quote from Maryland v. Wirtz, 392 U.S. 183 , 187 n. 7, 88 S.Ct. 2017 , 2019 n. 7, 20 L.Ed.2d 1020 (1968), and follows other language quoted from Wirtz to the effect that “ ‘[n]either here nor in Wickard [v. Filburn, 317 U.S. 111 , 63 S.Ct. 82 , 87 L.Ed. 122 (1942)] has the Court declared that Congress may use a relatively trivial effect on commerce as an excuse for broad general regulation of state or private activities.’ ” Lopez , 514 U.S. at -, 115 S.Ct. at 1629 (quoting Wirtz, 392 U.S. at 196 n. 27, 88 S.Ct. at 2024 n. 27). I think it likely from Congress’s inclusion of plenary regulation of District of Columbia commerce in the Hobbs Act robbery section that Congress did not see itself as making a similar plenary inclusion of the commerce among the states. Rather, it intended to act only to the extent of its power to regulate interstate commerce. An isolated robbery of an isolated retail outlet is not interstate commerce, nor has the government shown it to have a substantial effect on that commerce.
I understand the argument that the Lopez language first quoted above could be taken as supporting the proposition that all such potential Hobbs Act robberies should be aggregated so that the de minimis effect of each one “is of no consequence.” Taken in the light of the further quotation, however, I *1476 do not think that is what the Lopez Court meant. Congress did not undertake a general regulatory scheme of armed robberies. That the Hobbs Act itself can remain constitutional despite de minimis effects of an individual application does not answer the question of whether a robbery having no more than a de minimis effect is or constitutionally can be covered. Therefore, rather than relying on the first Lopez quote to sustain the constitutionality of this attempted application, I would look to the second quote and hold that this “relatively trivial effect [if any] on commerce” should not be used as an excuse for the broad federalization of an otherwise state-governed crime.
I would further say that in concluding that we should interpret the Hobbs Act less broadly than the government argues, I am instructed by the separate opinions of Supreme Court Justices in Lopez . First, Justice Kennedy, joined by Justice O’Connor, expressed his concern about exercises of federal power where “neither the actors nor their conduct have a commercial character” at least in part because “any conduct in this interdependent world of ours has an ultimate commercial origin or consequence....” 514 U.S. at-, 115 S.Ct. at 1640 (Kennedy, J., concurring). In his view, “if Congress attempts that extension, then at the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.” Id. (Kennedy, J., concurring). As essentially local robbery is a noncommercial activity of a traditional state concern, id. at-, 115 S.Ct. at 1654 (Souter, J., dissenting), I read the opinion commanding the allegiance of Justices Kennedy and O’Connor as suggesting even more strongly than the majority opinion written by Chief Justice Rehnquist that applications of the federal criminal law to activity which is not commerce and which does not substantially affect interstate commerce are at the very least constitutionally suspect.
Justice Thomas spoke still more strongly. Noting that the language of the commerce clause empowers Congress only to regulate “Commerce ... among the several states,” and that the “substantial effects” test is a court-made device which “taken to its logical extreme, would give Congress a police power over all aspects of American life,” 514 U.S. at -, 115 S.Ct. at 1642 (Thomas, J., concurring) (internal quotations omitted), he believed that the Court “must further reconsider” the substantial effects test.
The Supreme Court’s majority opinion in Lopez , especially in light of the concurring language of three justices, leads me to believe that the United States’ broad interpretation of the Hobbs Act robbery statute is directing us toward constitutionally dangerous ground. I therefore would construe the clause more narrowly, as did Judge Ebel in his dissent from United States v. Zeigler, supra. As he noted there, “[a] de minimis depletion of the assets of a business engaged in interstate commerce does not necessarily support a conclusion that interstate commerce has been affected,” 19 F.Sd at 496 (Ebel, J., dissenting), let alone that it has been substantially affected. While the bank deposit of the restaurant in this case may have been lighter on the day of the robbery, there is no proof in the record from which a finder of fact could conclude that any fewer goods or loss of payment actually moved in interstate commerce than would otherwise have been the case, or that the acts of this defendant in any other way substantially affected interstate commerce. The evidence really does not support the proposition, nor could one really believe that any less interstate commerce actually occurred. No one testified that Roy Rogers or its parent company really passed less money or fewer goods in commerce than would have been the ease but for this robbery — at most, the timing of one money transfer was changed. That being the case, I would hold that the district court should have allowed the defense motion for judgment as a matter of law at the close of the prosecution’s evidence.
Conclusion
Dissenters customarily, and I hope generally sincerely, declare that they are “respectfully” dissenting. My dissent today is especially respectful. I recognize in dissent that the district court and the majority of this panel are in accord with the majority of judges who have considered the question— *1477 indeed, there is unanimity among such judges but for Judge Ebel and myself. Nonetheless, I think that interpretation wrong, in part for a reason suggested by an authority cited in the majority’s opinion. In United States v. Collins, 40 F.3d 95, 99-101 (5th Cir.), cert. denied, - U.S. -, 115 S.Ct. 1986 , 131 L.Ed.2d 873 (1995), one circuit declared that the robbery of an individual’s cash, jewelry, clothes, cellular telephone, and automobile, by preventing the victim, an employee of a national company, from attending a business meeting and using his telephone to make business calls, had provided an interstate nexus “too attenuated” to support federal jurisdiction, and that reliance upon such a nexus would make the Hobbs Act “ubiquitous.” See Maj. Op. at 1467. In my view, the connection in the present case is equally attenuated, and, given the obvious fact that virtually every retail outlet of any kind deals in goods obtained in interstate commerce, this precedent also has the potential to make the Hobbs Act ubiquitous. Therefore, I dissent from the majority’s conclusion affirming the district court — although I do so most respectfully.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9490114. Public record. Not legal advice.