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Evidence That Defendant Targeted Marijuana Dealer for Marijuana or Proceeds Satisfies Hobbs Act Interstate Commerce Element

The Hobbs Act makes it a crime to “obstruct[], delay[], or affect[] commerce or the movement of any article or commodity in commerce, by robbery . . . or attempt[] or conspire[] so to do.”  18 U.S.C. § 1951(a).  “[C]ommerce” is defined under the Act to include “all . . . commerce over which the United States has jurisdiction.”  Id. § 1951(b)(3).  With its opinion in United States v. Lee, 11-2539, 11-2543, 11-2834, 11-4068, the Court (Cabranes, Pooler, Lynch) has made clear that evidence that a defendant targeted a marijuana dealer for his marijuana or marijuana proceeds is sufficient to satisfy the Hobbs Act’s interstate commerce element (see Op. at 13). 

In recent years, the Second Circuit had interpreted the Hobbs Act to require some more specific proof of the particular robbery’s effect on interstate commerce for the robbery to violate the Act.  See United States v. Needham, 604 F.3d 673, 684 (2d Cir. 2010).  But this past June in Taylor v. United States, 136 S. Ct. 2074 (2016), the Supreme Court clarified that any robbery that affects (or attempts to affect) marijuana sold inter- or intra-state, affects (or attempts to affect) commerce “over which the United States has jurisdiction.”  Id. at 2080.  It explained that even the local sale of marijuana is part of “an economic ‘class of activities’ that have a substantial effect on interstate commerce” such that the United States has jurisdiction to regulate it.  Id. (quoting Gonzales v. Raich, 545 U.S. 1, 17 (2005)).  This ruling—drawing on the reasoning of Wickard v. Filburn, 317 U.S. 111 (1942), which involved home-grown wheat, not marijuana—put to rest a long-running question about the circumstances under which drug robberies (actual robberies and also sting operations) may be prosecuted in federal court.   

With the bar so set, the Court easily concluded that the evidence against Defendants-Appellants Hisan Lee, Delroy Lee, Levar Gayle, and/or Selbourne Waite with respect to various charged Hobbs Act robberies was sufficient to satisfy the Act’s interstate commerce element.  As to each alleged robbery, there was sufficient evidence to prove that the Defendant or Defendants targeted a suspected marijuana dealer for his drugs or drug proceeds.  (See Op. at 13-23.) 

Notably, however, the Court did not extend its holding beyond the marijuana market. 

For one of the charged robberies, there was also evidence that the Defendant (Mr. Waite) had targeted the dealer for cocaine or cocaine proceeds.  The Court concluded that this evidence satisfied the interstate commerce element, but not on the ground that cocaine sales necessarily have a substantial effect on interstate commerce.  Rather, the Court observed that the parties had stipulated that all cocaine comes from outside the state of New York, where the alleged robbery occurred, such that it necessarily would have traveled interstate (see Op. at 7, 18-19).

The Court did not address the question whether, absent such a stipulation, the interstate commerce requirement would have been satisfied.  Taylor suggests that the cocaine stipulation was not dispositive: if the Supreme Court could accept that a robbery affecting marijuana sales necessarily affects interstate commerce, surely it would conclude that one affecting the sale of cocaine—which is grown entirely outside the United States—does as well.  A requirement that the government prove the effect on interstate commerce of a cocaine robbery with additional evidence would be similar to the requirement for establishing the interstate nexus in felon-in-possession cases under 18 U.S.C. § 922(g)(1):  easily satisfied except when the government happens to forget to offer proof by stipulation or through the testimony of an interstate nexus expert.  That said, there are many similar requirements for the government in our criminal law—such as a requirement that the government prove that a particular bank was federally insured at the time of the crime—that remain binding.

Defendants had raised a number of other challenges on appeal.  By opinion, the Court rejected Gayle’s arguments that the District Court’s (Jones, J.) committed reversible error in (1) admitting testimony by the ATF case agent that had not been disclosed before trial; (2) sustaining an objection to the defense summation; and (3) not sequestering the ATF case agent at trial.  By summary order, the Court affirmed various other rulings of the District Court and rejected Defendants’ challenges to the sufficiency of the evidence.

As to Waite’s sentence, however, the Court held that the District Court erred in denying Waite’s and the government’s request that the Fair Sentencing Act be applied retroactively to Waite to avoid triggering a mandatory minimum 20-year sentence.  Citing Dorsey v. United States, 132 S. Ct. 2321, in which the Supreme Court held that “Congress intended the Fair Sentencing Act’s new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders,” id. at 2335, the Court remanded Waite’s case to the District Court for resentencing.  The Court—like most courts—is pleased to have an opportunity to mitigate the well-known harshness of the sentences imposed for crack cocaine offenses.

-By Kathryn S. Austin and Harry Sandick