Marrero, Edwin v. United States ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 01-2283 & 01-4078
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWIN MARRERO and DAVID HERNANDEZ,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 368—William J. Hibbler, Judge.
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ARGUED APRIL 5, 2002—DECIDED AUGUST 5, 2002
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Before FLAUM, Chief Judge, and POSNER and ROVNER,
Circuit Judges.
POSNER, Circuit Judge. The defendants, “Little Bum” Mar-
rero and “Fat Man” Hernandez, lured three drug dealers
from Detroit to a rendezvous in Chicago on the pretext
of selling them cocaine. When the dealers arrived, the
defendants showed them what purported to be cocaine
but was actually flour with a thin coating of cocaine,
then robbed them at gunpoint of the $25,000 that the deal-
ers had brought with them to make the purchase. The
defendants were convicted by a jury of violating the
Hobbs Act, 18 U.S.C. § 1951, and of a firearm offense, and
2 Nos. 01-2283 & 01-4078
received very heavy sentences—324 months for Marrero,
192 months for Hernandez.
The Hobbs Act criminalizes robberies that obstruct or
otherwise affect interstate or foreign commerce, and the
main issue raised by this appeal is whether the robbery
of the drug dealers had the requisite effect on commerce.
We set to one side the defendants’ arguments that the
dealers may have been “from Detroit” only in the sense
of having been born or raised there and that they may not
have been dealers at all but merely purchasers for their own
consumption. We are required to construe the facts as
favorably to the government as the record permits, and
that construal requires us to reject these anyway rather
fanciful hypotheses about the robbery victims.
Of course, there is an element of paradox in a prosecu-
tion for obstructing illegal commerce (the government does
not seek to defend the judgment on the ground that the
defendants’ scheme affected the interstate trade in flour);
one might as an original matter have thought that were
it not for concerns about encouraging violent activities,
such as armed robbery, the obstruction of illicit commerce
should be rewarded rather than punished. The less pro-
tection the law gives drug dealers, the higher the price
of illegal drugs and so the smaller the quantity con-
sumed—the very aim of the “war on drugs.” But, quite
apart from the fact that the defendants were also drug
dealers, whose theft from other dealers might aid the
defendants’ drug dealings, any argument that the Hobbs
Act, or Congress’s commerce power (exerted to the full
in that Act, Stirone v. United States, 361 U.S. 212, 215
(1960); Evans v. United States, 504 U.S. 255, 263 n. 12
(1992); United States v. Peterson, 236 F.3d 848, 851-52 (7th
Cir. 2001)), does not reach robberies that disrupt rather
than promote illegal trafficking in drugs is foreclosed by
Nos. 01-2283 & 01-4078 3
the case law, e.g., United States v. Esposito, 771 F.2d 283,
286 (7th Cir. 1985); United States v. Ambrose, 740 F.2d 505,
512 (7th Cir. 1984); United States v. Jones, 30 F.3d 276, 285-
86 (2d Cir. 1994), and wisely not pressed by the appellants.
This case would be a very easy one for the government
if, as in United States v. Thomas, 159 F.3d 296, 297-98 (7th
Cir. 1998), and United States v. Jones, supra, 30 F.3d at
280, 285, the defendants had robbed a confidential infor-
mant of his “buy money.” Such a robbery would interrupt
a transaction in commerce (since all cocaine originates
outside the United States), and, as it happens, a socially
valuable one, since a “controlled buy” is an efficient meth-
od of apprehending drug dealers. See also United States
v. Bailey, 227 F.3d 792, 795, 798 (7th Cir. 2000). There was
no interruption of a transaction in commerce in the pre-
sent case, because the defendants had no drugs, only flour
that was not for sale. (There was no suggestion in Thomas
that the defendants did not have cocaine to make the sale
to the confidential informant—so far as appears, they
simply decided they would be better off with both the
cocaine and the purchase money rather than with just the
money.) Had our defendants not robbed the Detroit dealers,
there would have been no transaction—at least with them.
But the qualification is vital. Had the defendants not
lured the Detroit dealers to Chicago, those dealers would
have used their $25,000 to buy cocaine elsewhere, and
that purchase, a transaction in commerce whether it would
have been made in Detroit or elsewhere because, as we
said, all cocaine originates overseas, thus was thwarted,
and commerce therefore obstructed, by the robbery. United
States v. Thomas, supra, 159 F.3d at 297-98. (This is the “de-
pletion of assets” theory of Hobbs Act jurisdiction. It is
orthodox. See, e.g., United States v. Peterson, supra, 236 F.3d
at 854, 856; United States v. Jones, supra, 30 F.3d at 285.) Of
4 Nos. 01-2283 & 01-4078
course this is a prediction, not a certainty. Maybe the De-
troit dealers had no other potential source of cocaine
(maybe that’s why they could be lured to Chicago), and
after searching a bit would have decided to use the mon-
ey to buy something quite local. But the cases do not re-
quire certainty of effect on commerce; a reasonable prob-
ability is enough, e.g., United States v. Peterson, supra, 236
F.3d at 851-52; United States v. Spagnolo, 546 F.2d 1117,
1119 (4th Cir. 1976) (per curiam), and is present here, es-
pecially since as we said the defendants were themselves
drug dealers, so that, had they not been apprehended,
some of the money they stole might have been used to
buy cocaine. Nor is it necessary that the individual crim-
inal act, here the robbery of the Detroit dealers, be shown
to have a measurable impact on commerce, which would
usually be impossible to show. It is enough if the class
of acts has such an impact. Perez v. United States, 402
U.S. 146, 153-54 (1971); United States v. Thomas, supra, 159
F.3d at 298; United States v. Hale, 978 F.2d 1016, 1018 (8th
Cir. 1992). Deciding what shall count as a class is dif-
ficult, but not in this case. Whether the class is defined
broadly as theft from drug dealers or narrowly as theft of
cash from drug dealers, it is undoubtedly large enough to
have some effect on the drug trade, or what is just as
good, would have such an effect if the law did not pun-
ish such thefts and by punishing them deter many of the
potential thieves and incapacitate the actual ones who are
apprehended. Cf. United States v. Olin Corp., 107 F.3d 1506,
1510 and n. 8 (11th Cir. 1997); Proyect v. United States,
101 F.3d 11, 13 (2d Cir. 1996) (per curiam). In either event,
it is legitimately punishable under Congress’s power to
protect interstate commerce from obstruction.
The case might conceivably be different (we do not hold
that it would be) if the Detroit dealers, being hopelessly
impecunious, had brought with them only a few hundred
Nos. 01-2283 & 01-4078 5
dollars, hoping to persuade the defendants to sell them
cocaine at a ridiculously low price and knowing that if
they failed to persuade them they would have to aban-
don their quest altogether. Then it might be untenable to
argue that, had they not been robbed, they would have
bought cocaine elsewhere; it would be arguable instead
that we should recognize a class of attempted drug trans-
actions that, having no effect on commerce even in the
aggregate, fell outside the jurisdictional scope of the Hobbs
Act. But that is not our case.
We are troubled, however, by the inability of the gov-
ernment’s lawyer either in his brief or at argument to
suggest a limiting principle in Hobbs Act prosecutions, de-
spite the Supreme Court’s evident concern not to allow
the concept of “commerce” (interstate or foreign) to ex-
pand to the point at which every transaction in the Ameri-
can economy would be within Congress’s reach. United
States v. Lopez, 514 U.S. 549, 564 (1995); United States v.
Morrison, 529 U.S. 598, 615 (2000); see United States v.
Hicks, 106 F.3d 187, 189 (7th Cir. 1997). Before Lopez, courts,
including our own, were not fussy about the jurisdictional
requirement of the Hobbs Act. See, e.g., United States
v. Rindone, 631 F.2d 491, 493-94 (7th Cir. 1980) (per curiam);
United States v. Peete, 919 F.2d 1168, 1175 (6th Cir. 1990). But
we are in a new era and must be wary of such arguments
as that the theft of a bottle of aspirin from a person’s
home “affects” commerce, provided only that the bottle
was shipped from another state, because the homeowner
would be likely to buy another bottle from his local drug-
gist to replace the one that was stolen and the druggist
would replace that sale by purchasing another bottle in-
terstate.
Some cases indeed draw the line between a theft from
the home and theft from a store (see United States v.
6 Nos. 01-2283 & 01-4078
Lynch, 282 F.3d 1049, 1053-54 (9th Cir. 2002), summariz-
ing the case law), since an extra step (the local purchase
of the new bottle from the drugstore) must be taken in
the first case before one gets to the interstate transaction.
But that line—which incidentally is supported by the
“noncommercial” character of the activity involved in
Lopez itself (schooling), and by the Supreme Court’s re-
cent decision interpreting the federal arson statute to be
limited to commercial buildings, an interpretation adopted
in part at least to avoid having to decide Congress’s pow-
er under the commerce clause to make burning down a
private residence a federal crime, Jones v. United States, 529
U.S. 848, 858-59 (2000)—would not help the defendants
in the present case. They stole from a business, the drug
business of the three dealers, that was engaged in inter-
state or foreign commerce. The dealers’ business was “in
commerce” not only because it bought its merchandise
(cocaine) from out of state but also because conducting
the business involved crossing state lines when the deal-
ers came to Chicago to try to buy drugs from the defen-
dants. United States v. Carcione, 272 F.3d 1297, 1301 (11th Cir.
2001); United States v. Atcheson, 94 F.3d 1237, 1243 (9th Cir.
1996); see also United States v. Schaffner, 258 F.3d 675, 683
(7th Cir. 2001); United States v. Griffith, 284 F.3d 338, 347 (2d
Cir. 2002).
The only other issue presented by the appeal involves
Marrero alone and is whether for sentencing purposes his
two prior convictions for drug offenses were “related” to
each other. They were (so far as bears on this case) if they
“were part of a single common scheme or plan.” U.S.S.G.
§ 4A1.2, Application Note 3; see United States v. Brown,
209 F.3d 1020, 1023 (7th Cir. 2000); United States v. Ali,
951 F.2d 827 (7th Cir. 1992). And if they were related in
this sense, he should not have been given, as he was (it
is a major reason for his outsized sentence), an enhanced
Nos. 01-2283 & 01-4078 7
sentence for being a “career offender.” §§ 4B1.1, 1.2(c). The
first conviction was for buying 7.8 grams of cocaine from
an undercover agent. The agent told Marrero that he’d
be back if the cocaine turned out to be “decent.” Two and
a half months later the agent was back and bought 45
grams of cocaine from Marrero. The two sales would
have been part of the same plan if before the first sale
Marrero and the agent had agreed that the agent would
make two or more purchases from Marrero. United States
v. Joy, 192 F.3d 761, 770-71 (7th Cir. 1999); cf. United States
v. Lechuga, 994 F.2d 346, 349-50 (7th Cir. 1993) (en banc). But
there was no such agreement. The relatively small sizes
of the purchases, their separation in time, and their over-
all fewness all point to a casual buyer-seller relationship
rather than to a broader agreement whereby Marrero un-
dertook to supply the agent on a repeat basis, let alone
to a conspiracy to distribute drugs rather than a mere
sales contract. Compare United States v. Sanchez, 251 F.3d
598, 601-02 (7th Cir. 2001). A person who buys a honeydew
melon from a grocery store and tells the sales clerk that
if the melon is good he’ll be back is not thereby agreeing
to buy another melon from the store. If he changed his
mind and, while liking the melon, never went back to that
store he would not be violating any agreement. No more
would the agent have been violating an agreement with
Marrero if he had not come back and made a second pur-
chase from Marrero. Not that an agreement is always re-
quired to show a common scheme or plan—the test is
whether the second crime was “anticipated and planned
when the original crime was planned or committed,” United
States v. Ali, supra, 951 F.2d at 828—but in the absence of
an agreement in this case there is no evidence that Mar-
rero anticipated and planned the second sale, which de-
pended on what the agent did.
8 Nos. 01-2283 & 01-4078
The sentencing enhancement was therefore proper.
Cf. United States v. Thomas, 284 F.3d 746, 752 (7th Cir.
2002); United States v. Thomas, 150 F.3d 743, 744-45 (7th Cir.
1998) (per curiam).
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-5-02