United States v. Clarence Powell

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2432
___________
UNITED STATES OF AMERICA
v.
CLARENCE POWELL,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 09-cr-00574-003
(Honorable J. Curtis Joyner)
______________
Argued June 4, 2012
Before: SCIRICA, GREENAWAY, JR.
and NYGAARD, Circuit Judges.
(Filed: August 30, 2012)
THEODORE C. FORRENCE, JR., ESQUIRE (ARGUED)
Two Penn Center Plaza, Suite 200
1500 John F. Kennedy Boulevard
Philadelphia, Pennsylvania 19102
KENNETH C. EDELIN, JR., ESQUIRE
Two Penn Center Plaza, Suite 1410
1500 John F. Kennedy Boulevard
Philadelphia, Pennsylvania 19102
Attorneys for Appellant
ROBERT A. ZAUZMER, ESQUIRE (ARGUED)
ARLENE D. FISK, ESQUIRE
THOMAS M. ZALESKI, ESQUIRE
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorneys for Appellee
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Clarence Powell was convicted under the Hobbs Act,
18 U.S.C. § 1951, for two robberies of business owners in
their homes. He challenges the sufficiency of the evidence to
establish that the robberies affected interstate commerce and
2
the jury charge. At issue is whether a different standard
governs the Act’s jurisdictional requirements when the
robbery of business proceeds occurs in the business owner’s
home rather than on business premises.
I.
In the summer of 2008, according to the testimony of
Powell’s cousin and codefendant Michael Lassiter, he and
Powell engaged in a series of home robberies of college
students and drug dealers in North Philadelphia. Powell and
Lassiter decided their crimes were attracting too much
attention from law enforcement. They determined instead to
rob business owners by following them from their retail stores
to their homes, reasoning that there would be less security,
fewer witnesses, and more money from the business in
owners’ houses than in their stores. They specifically
targeted immigrant business owners in the belief that those
they termed “Chinese people” would keep business proceeds
at home because they did not use banks.
In November 2008, Powell, Lassiter, and codefendant
Troy Hill cased Star Wigs, a store on 52nd Street in West
Philadelphia, and decided to rob the owner when they saw the
store’s brisk business. Star Wigs was owned by Y.B., a
female immigrant from Korea who would take home cash
from the business each evening to later deposit in the bank.
The store sold merchandise, principally wigs and hair care
products, from multiple out-of-state suppliers, including
suppliers in New York, New Jersey, and Illinois. On
December 1, Powell, Lassiter, and Hill followed Y.B. as she
3
drove from Star Wigs to her home in Broomall, Pennsylvania.
The three men, wearing bandanas over their faces and
brandishing two handguns, invaded the home, beat and tied
up Y.B. and her husband, and demanded money. The robbers
seized $250-$300 in cash from the store’s daily sales from
Y.B.’s sock, and approximately $2000 in cash from store
sales in a jar on the refrigerator, which Y.B. intended to
deposit in the bank to cover backdated checks for store
merchandise. 1 They also took credit cards, a handgun,
jewelry, handbags, family heirlooms, and $1200 in cash that
belonged to Y.B.’s husband.
Also in November 2008, Powell, Lassiter, and Hill
cased Dollar Plus Discount, a store located across 52nd Street
from Star Wigs, similarly observing a large volume of
business. Dollar Plus was owned by B.S. and his wife,
immigrants from Bangladesh, and purchased merchandise
from out-of-state suppliers, including electronics and other
items from Baltimore, Maryland. B.S. transported cash and
credit card receipts from the store to his home each night in a
clear plastic box, where he kept them overnight. In late
November, Powell, Lassiter, and Hill followed B.S. and his
wife from Dollar Plus to their home in Upper Darby,
Pennsylvania. Several weeks later, on December 18, the
three men, along with Alexis Byrd-Arroyo, Lassiter’s
1
The amount of cash in the jar is disputed. Y.B. testified that
it was approximately $2,000 but submitted an insurance claim
for $1,060. When questioned about the discrepancy, Y.B.
explained that she did not know at the time she submitted the
claim how much money was in the jar.
4
girlfriend, returned to B.S.’s house armed with two handguns
and a sawed-off shotgun. Powell, Lassiter, and Hill hid at
the back of the house and assaulted two of B.S.’s adult
daughters when they came home, pushing them inside at
gunpoint and demanding their parents’ money. 2 One of the
daughters led Lassiter upstairs to the plastic box with receipts
and petty cash from the business. 3 The robbers took this box
along with personal electronics and additional cash, pushed
the women into a room, threatening to shoot them if they
came out, and left.
B.S.’s daughters then called the police, who put out a
radio alert for a robbery in progress. Within thirty seconds of
the dispatch, Upper Darby police on patrol a few blocks from
B.S.’s house spotted a Ford Crown Victoria driving rapidly
toward Philadelphia. They tailed the car into the city and
recorded its license plate, but lost the car in traffic. Upper
Darby police relayed this information to the Philadelphia
police, who later located and set up surveillance on the parked
vehicle. Philadelphia police arrested Byrd-Arroyo when she
returned to the car, and Upper Darby police obtained a search
warrant for the vehicle. Inside they discovered a handgun, a
sawed-off shotgun, a plastic container with Dollar Plus
receipts and petty cash, and other valuables. The victims of
the December 18 robbery identified the items recovered as
2
A third adult daughter was already present in the home.
3
At the time of the robbery, neither the robbers nor B.S.
knew how much money the box contained. The police
subsequently determined the box contained $140 in small
bills.
5
proceeds of the robbery. Based on information from Byrd-
Arroyo, police subsequently arrested Powell, Lassiter, and
Hill.
In March 2010, a grand jury in the Eastern District of
Pennsylvania returned a five-count indictment against
Clarence Powell: one count of conspiracy to interfere with
interstate commerce by robbery in violation of 18 U.S.C. §
1951(a), two counts of interference with interstate commerce
by robbery in violation of 18 U.S.C. § 1951(a), and two
counts of using a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c). Powell proceeded to trial.
At the close of the evidence, the District Court held a
charging conference with trial counsel. Powell moved to
dismiss the indictment under Fed. R. Crim. P. 29 for
insufficient evidence to establish the effect on interstate
commerce. The District Court denied the motion. Over the
defendant’s objection, the court charged the jury with a
modified version of the Third Circuit model jury instruction
on the element of “affecting interstate commerce” required
for a Hobbs Act conviction. The jury convicted Powell on all
five counts. The District Court sentenced Powell to 697
months’ imprisonment, 4 with five years’ supervised release,
4
The District Court sentenced Powell to ninety-seven months
of imprisonment for the Hobbs Act convictions, Counts One,
Two, and Four of Powell’s indictment. This sentence was the
bottom of the recommended range of the Sentencing
Guidelines. The District Court sentenced Powell to 600
months’ imprisonment for the convictions under 18 U.S.C. §
924(c), Counts Three and Five. Because Powell had a
6
restitution of $20,762.55, and a special assessment of $500.
Powell timely appealed. 5
II.
On appeal, Powell challenges the sufficiency of the
evidence to satisfy the effect on interstate commerce element
required for conviction under the Hobbs Act, as well as the
jury instructions on this element. These challenges raise a
similar issue: namely, whether the robbery of an individual in
her home requires proof of a more substantial connection to
interstate commerce than a robbery committed at a place of
business.
A.
The Hobbs Act provides “[w]hoever 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 . . .
previous conviction under 18 U.S.C. § 924(c), the mandatory
minimum sentence for each count was 300 months. 18
U.S.C. § 924(c)(1)(C)(i). Moreover, the statute specifies that
all terms of imprisonment under § 924 must run
consecutively, including the term of imprisonment imposed
for the underlying crime of violence. Id. § 924(c)(1)(D)(ii).
Powell does not challenge the District Court’s sentence in this
appeal.
5
The District Court exercised jurisdiction under 18 U.S.C. §
3231. We exercise jurisdiction under 28 U.S.C. § 1291.
7
shall be fined under this title or imprisoned not more than
twenty years, or both.” 18 U.S.C. § 1951(a). The statute
defines commerce as “all commerce between any point in a
State, Territory, Possession, or the District of Columbia and
any point outside thereof; all commerce between points
within the same State through any place outside such State;
and all other commerce over which the United States has
jurisdiction.” Id. § 1951(b)(3). We have held that a
conviction under the Hobbs Act requires proof beyond a
reasonable doubt that (1) the defendant knowingly or
willfully committed, or attempted or conspired to commit,
robbery or extortion, and (2) the defendant’s conduct affected
interstate commerce. United States v. Walker, 657 F.3d 160,
178-79 (3d Cir. 2011); United States v. Driggs, 823 F.2d 52,
54 (3d Cir. 1987). Powell challenges the sufficiency of the
evidence with respect to the effect on interstate commerce
element. 6
The Hobbs Act was passed as an amendment to the
Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979. The
original Act was targeted at extortion by organized crime
against store owners and truck drivers. S. Rep. No. 75-1189,
6
We apply a “particularly deferential standard of review” to
challenges to the sufficiency of the evidence supporting
conviction. United States v. Dent, 149 F.3d 180, 187 (3d Cir.
1998). We view all evidence in the light most favorable to
the government, and sustain conviction as long as “any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. (quoting United
States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)).
8
at 23-24 (1937). But in a later prosecution under the Act
against a labor union and twenty-six of its members who
coerced tribute from out-of-state truck drivers entering New
York City, the Supreme Court held that the Act did not
encompass payments for work, even if obtained by threats or
violence, and reversed the defendants’ convictions. United
States v. Local 807 of Int’l Bhd. of Teamsters, 315 U.S. 521
(1942). Congress then amended the law to correct the
“technical defect in the antiracketeering statute,” 91 Cong.
Rec. 11,913 (1945) (statement of Rep. Whittington), and
“protect interstate commerce and free the highways and
streets of this country of robbers,” id. at 11,912 (statement of
Rep. Hobbs); Hobbs Act, ch. 537, 60 Stat. 420 (1946),
codified at 18 U.S.C. § 1951.
Although the Hobbs Act was framed in the context of
racketeering, the Supreme Court has concluded that Congress
intended the law to sweep broadly and “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.” United States v.
Culbert, 435 U.S. 371, 377 (1978) (emphasis removed)
(quoting H.R. Rep. No. 79-238, at 9 (1945)). Based on this
legislative history, the Court has declined to read a
racketeering requirement into the statute, holding that the
statute’s words “do not lend themselves to restrictive
interpretation” and instead “manifest . . . a purpose to use all
the constitutional power Congress has to punish interference
with interstate commerce by extortion, robbery, or physical
violence.” Id. at 373 (alteration in original) (quoting Stirone
v. United States, 361 U.S. 212, 215 (1960)).
9
Consistent with the Court’s interpretation of the Hobbs
Act’s “broad language,” Stirone, 361 U.S. at 215, we have
stressed that “proof of a de minimis effect on interstate
commerce is all that is required” for conviction under the
Hobbs Act. Walker, 657 F.3d at 180 (quoting United States v.
Urban, 404 F.3d 754, 766 (3d Cir. 2005)) (internal quotation
marks omitted). Moreover, the effect may be potential, not
actual. United States v. Shavers, No. 10-2790, slip op. at 11
(3d Cir. Aug. 27, 2012); United States v. Haywood, 363 F.3d
200, 209-10 (3d Cir. 2004); see also Urban, 404 F.3d at 766-
67. We have noted this standard is in accord with the
overwhelming weight of authority of our sister circuits.
Urban, 404 F.3d at 765 n.3. We have also rejected challenges
to this standard under the commerce clause jurisprudence
outlined in United States v. Lopez, 514 U.S. 549 (1995), and
United States v. Morrison, 529 U.S. 598 (2000), holding that,
because the Hobbs Act contains a jurisdictional element and
criminalizes the “fundamentally economic” crimes of robbery
and extortion, violations of the Act have a substantial effect
on interstate commerce in the aggregate, and the government
need not prove a substantial effect in each individual case.
Shavers, No. 10-2790, slip op. at 11-12, Walker, 657 F.3d at
179-80; Urban, 404 F.3d at 766; United States v. Clausen,
328 F.3d 708, 710-11 (3d Cir. 2003).
Powell challenges the application of the de minimis
standard in this case. He argues it properly applies only to
robberies at business establishments, and that a higher
jurisdictional burden applies when, as here, the robbery in
question is of an individual in his or her home. For support,
he cites cases from our sister circuits finding that the robbery
10
of a private individual’s property away from a place of
business did not satisfy the Hobbs Act’s jurisdictional
element. See, e.g., United States v. Perrotta, 313 F.3d 33, 36
(2d Cir. 2002) (extortion of personal funds from a private
individual); United States v. Quigley, 53 F.3d 909, 910 (8th
Cir. 1995) (robbery of personal funds of two individuals en
route to a liquor store); United States v. Collins, 40 F.3d 95,
100 (5th Cir. 1994) (home robbery of personal property and
car). Most notable among this line of cases is United States v.
Wang, 222 F.3d 234 (6th Cir. 2000), which reversed a
conviction under the Hobbs Act for the defendant’s robbery
of a restaurant owner in her home that secured $4200 in cash,
including $1200 from the restaurant’s cash register, $900 of
which was to be deposited in the restaurant’s bank account
the next day. The court held the standard for the effect on
interstate commerce of the robbery of an individual “is of a
different order than in cases in which the victim is a business
entity,” and ruled that, when the prosecution “seeks to satisfy
the Act’s jurisdictional nexus by showing a connection
between an individual victim and a business engaged in
interstate commerce, that connection must be a substantial
one—not one that is fortuitous or speculative.” Wang, 222
F.3d at 238-40. The robbery in question did not satisfy this
standard because the robbery was of a private individual in a
private home, and there was no evidence of a substantial
connection between the robbery and the restaurant’s business.
Id. at 240.
We have addressed this line of cases before. In
Walker, we noted that, “[e]ven if these decisions are correct,”
a question we declined to decide, they were distinguishable
11
from the Walker facts, which involved the robbery of a drug
dealer. 657 F.3d at 181. We interpreted the Wang line of
cases to stand for the proposition that
the mere facts that (1) an individual was robbed
of personal property, (2) the individual happens
to work for a company engaged in interstate
commerce, and (3) there was some incidental
effect on that person’s job performance are
insufficient, standing alone, to establish Hobbs
Act jurisdiction, because the connection
between the robbery and interstate commerce is
too attenuated.
Id.
Here, as in Walker, the link between the robbery and
interstate commerce is more direct than in the cases Powell
cites. The testimony at trial, viewed in the light most
favorable to the government, established that Powell and his
accomplices deliberately selected store owners as their
victims, seeking to steal the stores’ earnings and assets. The
robbers decided not to commit the robberies at the stores only
because they believed it was too risky. Although we have yet
to decide the issue, 7 our sister circuits have held that such
targeting satisfies the Hobbs Act’s jurisdictional nexus. See,
7
In Walker, we suggested in a footnote that because the
defendants were “motivated by [the victim’s] connection to
interstate commerce,” the Hobbs Act’s jurisdictional nexus
was satisfied. 657 F.3d at 182 n.16.
12
e.g., United States v. Le, 256 F.3d 1229, 1237 n.8 (11th Cir.
2001) (“Our conclusion that Le’s actions implicated interstate
commerce to a degree sufficient to create jurisdiction under
the Hobbs Act is based on the fact that Le specifically
targeted business assets that were temporarily kept at a
private residence which, if stolen, had the potential to delay
or obstruct the purchase of products from another state.”);
United States v. Diaz, 248 F.3d 1065, 1088-89 (11th Cir.
2001) (“What sets this case apart is the fact that the role of the
Martins with regard to their business, which was directly
engaged in interstate commerce, was not coincidental. Rather,
the Court is convinced by the evidence presented at trial that
appellants targeted the Martins because of their interest in
Rosa Medical Center.” (emphasis removed)); United States v.
Nguyen, 246 F.3d 52, 54 (1st Cir. 2001) (jurisdictional nexus
met in home robbery because “the evidence clearly shows
that the conspirators planned to steal the earnings of a
business in interstate commerce.”). Such targeting also likely
satisfies the standards outlined in Wang and similar cases as
an instance when the robbery of an individual nonetheless
affects interstate commerce. See Perrotta, 313 F.3d at 37-38
(“The [Hobbs Act’s] jurisdictional nexus could be satisfied by
showing that the victim directly participated in interstate
commerce; that the victim was targeted because of her status
as an employee at a company participating in interstate
commerce; that the harm or potential harm to the individual
would deplete the assets of a company engaged in interstate
commerce; [or] that the crime targeted the assets of a business
rather than an individual.”) (citations omitted); Wang, 222
F.3d at 240 (“[T]he Government might make such a showing
13
[of a robbery’s substantial connection to interstate commerce]
by demonstrating that the defendant knew of or was
motivated by the individual victim’s connection to interstate
commerce.”); Collins, 40 F.3d at 100 (“Criminal acts directed
toward individuals may violate section 1951(a) only if: (1) the
acts deplete the assets of an individual who is directly and
customarily engaged in interstate commerce; (2) if the acts
cause or create the likelihood that the individual will deplete
the assets of an entity engaged in interstate commerce; or (3)
if the number of individuals victimized or the sum at stake is
so large that there will be some ‘cumulative effect on
interstate commerce.’” (citations omitted)).
Despite this line of cases, Powell argues that what he
terms the “targeting theory” is inapposite. He asserts that,
because nearly every robbery targets moneys or goods
obtained in interstate commerce, the theory collapses any
jurisdictional limit on the Hobbs Act’s reach. Next, in a
contention advanced primarily at oral argument, he suggests
that the targeting theory’s focus on intent may be appropriate
for a Hobbs Act conspiracy or attempt charge, where the
effect on commerce may only be potential, but is misapplied
to the substantive charge, which purportedly requires an
actual effect on interstate commerce for conviction.
We find these arguments unconvincing. As to the first
contention, Powell’s description of a robbery targeted at
money and goods coincidentally obtained in interstate
commerce is not the sort of targeting at issue here. Powell
did not rob his victims merely because he believed they had
money or valuables, and these items happened to come from
14
interstate commerce, as Powell’s hypotheticals posit. The
link to commerce was more direct: Powell specifically
targeted the proceeds of businesses engaged in interstate
commerce. Accordingly, although they took place outside the
confines of the victims’ stores, the robberies here were
nonetheless “directed at a business establishment,” which
Powell concedes lies within Hobbs Act jurisdiction. Br. for
Appellant at 17. Targeting of this sort satisfies the Hobbs
Act’s jurisdictional nexus.
The second argument misstates circuit law. As noted,
we have held that the effect on interstate commerce required
for a Hobbs Act conviction need only be “potential,” and
have never limited this standard solely to convictions for
Hobbs Act conspiracy. See Urban, 404 F.3d at 765-66 & n.3
(endorsing, after a lengthy discussion, the use of the
“potential” effect on commerce standard in “the context of
substantive Hobbs Act cases”); Haywood, 363 F.3d at 209-10
(citing precedent that the effect on commerce need only be
potential in upholding a conviction for a substantive Hobbs
Act violation). We have also observed that, although some
circuits have adopted a requirement of an actual effect in
substantive cases, see, e.g., United States v. Williams, 308
F.3d 833, 838 (8th Cir. 2002); United States v. Carcione, 272
F.3d 1297, 1300-01 n.5 (11th Cir. 2001), the weight of
authority endorses the position we have adopted, see Urban,
404 F.3d at 766 n.3 (collecting cases).
Conviction under the Hobbs Act does not require proof
that the defendant intended to affect interstate commerce. See
Third Circuit Model Criminal Jury Instructions § 6.18.1951-7
15
(2010). But the defendant’s intent is nonetheless relevant,
because the government may establish the jurisdictional
nexus by demonstrating that the “natural consequences” of
the robbery would result in an effect on interstate commerce,
Urban, 404 F.3d at 762, and intent is probative, although not
dispositive, on this question. Here, Powell deliberately
sought to rob business owners to obtain proceeds of
businesses engaged in interstate commerce. This targeting
and the resultant robberies of those owners were sufficient for
a rational jury to conclude beyond a reasonable doubt that the
“natural consequences” of Powell’s actions were an actual or
potential effect on interstate commerce.
There was also sufficient evidence to sustain Powell’s
conviction under what we have termed “the depletion of the
assets” theory, “whereby proof that a Hobbs Act violation
depletes the assets of a business engaged in interstate
commerce conclusively establishes the effect on commerce
requirement.” Urban, 404 F.3d at 762. In Urban, we
comprehensively surveyed our precedent, as well as that of
our sister circuits, and found repeated and unequivocal
endorsement of the application of this standard to Hobbs Act
violations. Id. at 763-66 & n.3; see also Haywood, 363 F.3d
at 210; United States v. Cerilli, 603 F.2d 415, 423-24 (3d Cir.
1979); United States v. Mazzei, 521 F.2d 639, 642-43 (3d Cir.
1975) (en banc). Our sister circuits have specifically applied
the theory to uphold Hobbs Act convictions for home
robberies that seized business assets. See United States v.
Jimenez-Torres, 435 F.3d 3, 9 (1st Cir. 2006) (“Depletion of
the assets of a business engaged in interstate commerce is a
common method for demonstrating that a robbery had an
16
effect on interstate commerce. This is so even if the
business’s assets were stolen from a home.” (citation
omitted)).
The undisputed evidence at trial established that
Powell and his accomplices stole business assets in both
robberies: approximately $2300 from Star Wigs, 8 and $140
and credit card receipts from Dollar Plus. Although the
amount taken in the Dollar Plus robbery was comparatively
small, we have never suggested that a robbery can affect
commerce only if a substantial amount of a business’s assets
are stolen. See Walker, 657 F.3d at 180 (rejecting argument
that robbery of drug dealer of $60 in cocaine and $40-$50 in
cash did not affect interstate commerce because “we have
found the de minimis standard satisfied in similarly low-
stakes robberies”); Haywood, 363 F.3d at 211 & n.7
(upholding a Hobbs Act conviction based on depletion of
assets because of theft of $50-$70 in cash from a bar).
Viewing the evidence in the light most favorable to the
government, there was sufficient evidence to find beyond a
reasonable doubt that the theft of business assets in the two
robberies had an actual or potential de minimis effect on
interstate commerce.
In sum, the circumstances of this case—where the
8
Consistent with our standard of review, we construe the
dispute over the amount taken in the Y.B. robbery in the light
most favorable to the government. But our conclusion would
be the same if the robbery had only netted $1060 in business
proceeds.
17
evidence established that Powell and his accomplices targeted
interstate businesses and stole business proceeds—support a
rational jury’s conclusion that the Hobbs Act’s jurisdictional
nexus was satisfied beyond a reasonable doubt. The fact that
the robbers believed it would be easier and more profitable to
commit their crimes at business owners’ homes, rather than in
the stores they owned, cannot be read to negate the robberies’
effect on interstate commerce and defeat otherwise available
federal jurisdiction.
B.
Powell also challenges the District Court’s jury
instructions with respect to the interstate commerce prong of
a Hobbs Act violation. 9 At trial, the government proposed the
Third Circuit model jury instruction for the required Hobbs
Act element of effect on interstate commerce that read:
The third element that the government
must prove beyond a reasonable doubt is that
(name)’s conduct affected or could have
affected interstate commerce. Conduct affects
interstate commerce if it in any way interferes
9
We review a district court’s refusal to give a certain
instruction for abuse of discretion, but exercise plenary
review to determine whether the jury instructions stated the
proper legal standard. United States v. Leahy, 445 F.3d 634,
642 (3d Cir. 2006). We consider the jury instructions as a
totality and do not evaluate particular sentences or paragraphs
in isolation. Id.
18
with, changes, or alters the movement or
transportation or flow of goods, merchandise,
money, or other property in commerce between
or among the states. The effect can be minimal.
It is not necessary to prove that (name)
intended to obstruct, delay or interfere with
interstate commerce or that the purpose of the
alleged crime was to affect interstate commerce.
Further, you do not have to decide whether the
effect on interstate commerce was to be harmful
or beneficial to a particular business or to
commerce in general. You do not even have to
find that there was an actual effect on
commerce. All that is necessary to prove is that
the natural consequences of the offense
potentially caused an effect on interstate
commerce to any degree, however minimal or
slight.
Third Circuit Model Criminal Jury Instructions § 6.18.1951-7
(2009). The government also proposed an additional
paragraph describing the depletion of the assets theory
endorsed in Urban, 404 F.3d at 763-67. 10 Powell objected
10
That paragraph read:
You can, but are not required to, find an effect
on interstate commerce if the defendant’s
actions reduced the assets of a business engaged
or purchasing goods or services in interstate
commerce, which assets would otherwise have
19
and proposed an alternate instruction that would require the
jury to find a substantial connection between the individual
robbed and a business engaged in interstate commerce for
conviction. 11 The District Court charged the jury with the
instruction as proposed by the government.
The District Court did not abuse its discretion in
rejecting Powell’s proposed instruction. The instruction
given reflected circuit precedent by requiring the government
to prove beyond a reasonable doubt an actual or potential de
minimis effect on interstate commerce for conviction. We
interpret the addition of the “depletion of the assets”
paragraph not to supplant or expand the standard outlined in
the model instruction, but to exemplify one way the required
nexus can be established. See Walker, 657 F.3d at 183
(“[W]hile the government can and often will rely upon the
been available for conducting the purchase of
such goods or services in interstate commerce.
App. for Appellant at 561a.
11
Powell’s proposed instruction read, in relevant part:
Where the robbery is of an individual in his or
her home, and the Government seeks to prove
an effect on interstate commerce by showing a
connection between an individual victim and a
business engaged in interstate commerce, that
connection must be a substantial one – not one
that is fortuitous or speculative.
App. for Appellant at 562a.
20
depletion of assets theory, it is only required to present
evidence proving that the ‘defendants’ conduct produces any
interference with or effect upon interstate commerce, whether
slight, subtle, or even potential.’” (quoting Haywood, 363
F.3d at 209-10)). Here, as in Urban and Haywood, the
application of the theory is unproblematic.
In declining to explicitly require a substantial
connection between the robbery of an individual and
interstate commerce for conviction under the Hobbs Act, we
do not suggest that Hobbs Act jurisdiction is limitless. Our
precedent has underscored the concern that the prevalence of
interstate commerce in our modern society could elevate
garden-variety street crime to federal Hobbs Act offenses,
thereby “supplanting the state criminal systems that quite ably
address classic state-law crimes.” Walker, 657 F.3d at 184;
see also Jimenez-Torres, 435 F.3d at 7-8 (“Where . . . the
crime concerns the robbery of a home rather than of a
business, we approach the task of applying the de minimis
standard with some caution, lest every robbery (which by
definition has some economic component) become a federal
crime.”). Like the Wang line of cases, we would likely find
problematic Hobbs Act prosecutions for robberies that
“cause[] only a speculative indirect effect on a business
engaged in interstate commerce,” 222 F.3d at 238; cf. United
States v. McGuire, 178 F.3d 203, 209-12 (3d Cir. 1999)
(finding insufficient evidence of effect of interstate commerce
under 18 U.S.C. § 844, the federal arson statute, where
defendant blew up a car containing a bottle of orange juice
that had traveled in interstate commerce and was intended for
a local catering business).
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But this case demonstrates the contrary hazard in
adopting a bright-line rule that sharply differentiates a home
from business premises for the purposes of Hobbs Act
jurisdiction. As discussed, the facts of this case, where
robbers targeted two businesses engaged in interstate
commerce to obtain their proceeds, place it within Hobbs Act
jurisdiction. This case differs from the typical Hobbs Act
prosecution of a business holdup only because the robbers
elected to rob business owners at their homes, not in their
stores. The critical question under the Hobbs Act is the
robbery’s effect on interstate commerce; where the robbery
occurs is but one factor in assessing this issue. See Carcione,
272 F.3d at 1301 n.6 (“[I]n determining whether there is a
minimal effect on commerce [under the Hobbs Act], each
case must be decided on its own facts.” (quoting United
States v. Rodriguez, 218 F.3d 1243, 1245 (11th Cir. 2000))).
In short, the District Court’s instruction accurately
stated circuit law on the Hobbs Act’s jurisdictional nexus.
III.
For the foregoing reasons, we will affirm the judgment
of conviction and sentence.
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