United States v. Frost , 61 F.3d 1518 ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
Nos. 93-9382, 94-8385.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gary FROST, Major, George Johnson, Edward Wayne Martin,
Defendants-Appellants.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gary FROST, Major, Defendant-Appellant.
March 19, 1996.
Appeal from the United States District Court for the Middle
District of Georgia. (No. CR 93-31-MAC (WDO), Wilbur D. Owens, Jr.,
Judge.
Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and YOUNG*, Senior District Judge.
CORRECTED OPINION
PER CURIAM:
Our earlier opinion, reported at 61 F.3d 1518, is hereby
modified by withdrawing that portion thereof designated as section
B. 1. of part II., beginning on page 1523, and substituting the
following:
B. EVIDENTIARY CHALLENGES.
1. Jurisdiction.
Appellants Frost and Johnson also argue that the evidence was
insufficient to support the Hobbs Act jurisdictional allegations
contained in the indictment. The government was required to prove
two essential elements to support the Hobbs Act offense alleged in
Count 1—"interference with [interstate] commerce, and extortion."
Stirone v. United States, 361 U.S. 212, 218, 80 S. Ct. 270, 274, 4
*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
L.Ed.2d 252, 257 (1960). Proof of a connection to interstate
commerce is a jurisdictional prerequisite to a Hobbs Act
conviction. United States v. Alexander, 850 F.2d 1500, 1503 (11th
Cir.1988), cert. denied, 489 U.S. 1068, 109 S. Ct. 1346, 103 L. Ed. 2d
814 (1989), and vacated on other grounds, 492 U.S. 915, 109 S. Ct.
3236, 106 L. Ed. 2d 584 (1989); United States v. De Parias, 805 F.2d
1447, 1450 (11th Cir.1986), cert. denied, 482 U.S. 916, 107 S. Ct.
3189, 96 L. Ed. 2d 678 (1987). Although the indictment sufficiently
alleged an interstate commerce nexus, we agree that the
government's proof fell short of its intended purpose.
There was some mention made that the affairs of the city council
were linked to interstate commerce. William Douglas, the target of
the blackmail, testified that the council employed a Jacksonville,
Florida engineering firm to perform consulting work and that the
city sometimes purchased items that moved in interstate commerce.
There was no showing, however, that the resignation of one member
of the six-member city council would have impacted the continuing
business of that governing body in such a manner as to constitute
a violation of the federal statute. Therefore, we cannot say, on
the record before us, that the extortionate threat, if it had
succeeded, "was likely to have the natural effect of obstructing
commerce." United States v. Farrell, 877 F.2d 870, 875 (11th
Cir.), cert. denied, 493 U.S. 922, 110 S. Ct. 289, 107 L. Ed. 2d 268
(1989). Consequently, we must reverse Appellants' convictions on
Count 1 of the indictment, including that of Martin. Although
Martin did not assert this issue on appeal, a Hobbs Act conviction
may not stand absent proof of interference with interstate
commerce, "since the Federal Government's jurisdiction of this
crime rests only on that interference." Stirone, 361 U.S. at 218,
80 S.Ct. at 274, 4 L. Ed. 2d at 257.
In light of the failure of the government's proof in
this respect, we find it unnecessary to address whether
United States v. Lopez, --- U.S. ----, 115 S. Ct. 1624,
131 L. Ed. 2d 626 (1995) (invalidating the Gun-Free School
Zones Act of 1990 as beyond Congress' Commerce Clause
authority), which was decided after oral argument was
heard in this case, altered the measure of evidence
necessary to support the interstate commerce element of
a Hobbs Act prosecution. This is so because, even under
pre-Lopez law, the evidence of an interstate commerce
nexus was not enough.
With this change we also amend part III of the opinion on page
1529 to delete the second sentence and substitute in its place:
For the reasons expressed, we VACATE Appellants'
convictions and sentences on Count 1 of the indictment,
we AFFIRM the remaining convictions of Appellants Frost
and Johnson and we AFFIRM the denial of Appellant Frost's
Motion for New Trial; We REVERSE the remaining sentences
of Appellants Frost, Johnson and Martin and REMAND to the
district court for resentencing proceedings consistent
with this opinion.
Except for these modifications, the remainder of the opinion
is unchanged.