United States v. David Anthony Taylor

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4316
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ANTHONY TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:12-cr-00043-GEC-1)
Argued: May 15, 2014 Decided: June 6, 2014
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Thacker and Senior Judge Hamilton
joined.
ARGUED: Kari Elizabeth Jackson, Dennis Jones, DENNIS E. JONES &
ASSOCIATES, Abingdon, Virginia, for Appellant. Jean Barrett
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee. ON BRIEF: Timothy J. Heaphy, United
States Attorney, Roanoke, Virginia, Anne H. Lippitt, Third Year
Law Student, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
WILKINSON, Circuit Judge:
David Anthony Taylor appeals his convictions for two counts
of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and one
count of using a firearm in furtherance of a crime of violence
in violation of 18 U.S.C. § 924(c). Taylor contends both that
the government failed to introduce sufficient evidence to
establish that his robberies affected interstate commerce and
that the district court erred in prohibiting him from showing
that the particular drugs he was seeking to steal did not affect
interstate commerce. Pursuant to Supreme Court precedent
supporting the broad ability of Congress to punish the
disruption of interstate commerce and our own conforming
decisions in United States v. Tillery, 702 F.3d 170 (4th Cir.
2012), and United States v. Williams, 342 F.3d 350 (4th Cir.
2003), we affirm his convictions.
I.
A.
Taylor was a member of the “Southwest Goonz,” a group of
robbers led by George Fitzgerald and based in Roanoke, Virginia.
The Goonz focused on robbing drug dealers because they typically
have drug proceeds in their homes and, because of the illegal
nature of their activities, they are reluctant to report crime
to the authorities. Taylor persuaded Fitzgerald to take him on
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several planned home invasions in order to steal drugs and drug
proceeds, such as money and jewelry.
One of these break-ins was planned for the residence of
Josh Whorley, where his girlfriend Latasha Graham and her two
children also lived. Fitzgerald chose Whorley’s home because he
had learned that Whorley sold an exotic and high grade of
marijuana, a belief that he communicated to Taylor and two other
group members. The robbers expected to find both drugs and
money there.
Their expectations were not unreasonable, because Whorley
had both used and sold drugs in the past. Graham herself was a
regular marijuana user. Additionally, Whorley’s house had been
broken into twice prior to the August 27, 2009 robbery, and a
housemate had been held at gunpoint in the driveway.
Taylor and his associates robbed Whorley’s house on the
night of August 27. The four robbers kicked in the front door
and held guns to Whorley and Graham while searching the house.
During the robbery, Taylor hit Graham in the head with his
pistol, groped her, and clawed the rings off her fingers.
Whorley was also repeatedly struck by one of the robbers. The
robbers demanded that Graham tell them where the money and
marijuana were located. All in all, the robbers made off with
Graham’s jewelry, $40 from her purse, two cell phones, and a
marijuana cigarette.
3
Another break-in was planned for the home of William Lynch,
who lived together with his wife, Whitney Lynch, and their three
children. Fitzgerald chose Lynch’s home because he had been
told by a previously reliable source that Lynch sold marijuana.
The source further informed Fitzgerald that on a prior occasion
he had personally robbed Lynch, also known as “W.T.,” of twenty
pounds of marijuana. Lynch surrounded himself with people who
used and possessed drugs. Taylor and Fitzgerald both expected
to recover marijuana and drug proceeds during the home invasion.
The Goonz robbed Lynch’s residence on October 21, 2009.
Taylor initiated the robbery by knocking on the front door.
After he entered the home, Fitzgerald and another group member
followed. Once inside, Taylor held Lynch and his six-year old
son at gunpoint in the living room, while another robber forced
Lynch’s nine-year old daughter from her bedroom into the living
room. Fitzgerald asked Lynch to tell him where the marijuana
was located. Lynch insisted that he did not have it and claimed
that it was in another man’s possession. Whitney Lynch emerged
from her bedroom at the sound of the commotion and was assaulted
by a robber, who attempted to remove her pants. She struggled
with him while he demanded that she show him where the money and
drugs were located. She was then dragged into the living room
by her hair. The three robbers eventually took Lynch’s cell
phone and departed.
4
B.
On July 26, 2012, Taylor was indicted by a grand jury in
the Western District of Virginia on two counts of Hobbs Act
robbery under 18 U.S.C. § 1951(a) and two counts of using a
firearm in furtherance of a crime of violence under 18 U.S.C.
§ 924(c). Taylor’s first trial resulted in a hung jury.
A second trial was conducted from January 23 to 25, 2013.
Before the second trial commenced, the government moved to
preclude Taylor from offering evidence that robbing a drug
dealer who sells marijuana grown within the borders of Virginia
does not affect interstate commerce and thus does not violate
the Hobbs Act. Taylor filed a Motion to Dismiss, contending
that such a ruling would violate his constitutional right to
present a complete defense. The district court held a hearing
after which it granted the government’s motion on the grounds
that the enterprise of drug dealing affects interstate commerce
as a matter of law under United States v. Williams, 342 F.3d 350(4th Cir. 2003). See also United States v. Tillery, 702 F.3d
170, 175 (4th Cir. 2012) (upholding conviction for Hobbs Act
robbery of a business because it impacted interstate commerce
“in the aggregate”).
On January 25, the jury convicted Taylor on three of the
four counts in the indictment, including both of the Hobbs Act
offenses. With regard to the Hobbs Act crimes, the jury found
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Taylor guilty of “knowingly and unlawfully taking and obtaining,
or attempting to take or obtain, by robbery, items having an
effect on interstate commerce by means of actual and threatened
force, violence, and fear of injury.” J.A. 702. Taylor moved
to set aside the verdict on the basis that the government had
not offered evidence that Taylor’s actions had affected
interstate commerce. The district court denied Taylor’s motion.
The court then sentenced Taylor to 336 months in prison followed
by supervised release for three years. Taylor now appeals.
II.
Taylor argues that the government failed to present
sufficient evidence that his robberies affected interstate
commerce under the Hobbs Act. He also contends that the
district court erred in prohibiting him from showing that his
robberies of dealers of Virginia-grown marijuana likely did not
impact interstate commerce.
A.
We note at the outset the extraordinary breadth and reach
of the Hobbs Act. That law reads, in pertinent part:
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 or
attempts or conspires so to do, or commits or
threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in
violation of this section shall be [punished].
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18 U.S.C. § 1951(a). A Hobbs Act crime, then, has two elements:
“(1) robbery or extortion, and (2) interference with commerce.”
Tillery, 702 at 174. With regard to the second element, it is
impossible to ignore Congress’ repeated use of the word “any.”
Indeed, the Supreme Court has recognized that the Hobbs Act
“speaks in broad language, manifesting a purpose to use all the
constitutional power Congress has to punish interference with
interstate commerce . . . .” Stirone v. United States, 361 U.S.
212, 215 (1960). Thus, the jurisdictional predicate of the
Hobbs Act requires only that the government prove a “minimal”
effect on interstate commerce. United States v. Spagnolo, 546
F.2d 1117, 1119 (4th Cir. 1976).
Such an impact is not difficult to show. The effect may be
so minor as to be de minimis, United States v. Buffey, 899 F.2d
1402, 1404 (4th Cir. 1990), and may be demonstrated by “proof of
probabilities,” United States v. Brantley, 777 F.2d 159, 162
(4th Cir. 1985). Moreover, the government is not required to
prove that the “defendant intended to affect commerce or that
the effect on commerce was certain; it is enough that such an
effect was the natural, probable consequence of the defendant’s
actions.” Williams, 342 F.3d at 354.
To determine whether a robbery affects commerce, we do not
simply examine the effect of the individual action in question;
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it is sufficient that the “relevant class of acts” has a
measureable impact on interstate commerce. Tillery, 702 F.3d at
174 (internal quotation marks omitted). Considering the class
of activities in the aggregate in order to determine whether
they impact interstate commerce is nothing new. The Supreme
Court has repeatedly found that Congress may regulate conduct
under the Commerce Clause that, in the aggregate, impacts
interstate commerce. See, e.g., Gonzales v. Raich, 545 U.S. 1,
18-19, 22 (2005) (holding that Congress may regulate intrastate
marijuana market because of its aggregate impact on interstate
commerce); Wickard v. Filburn, 317 U.S. 111, 128-29 (1942)
(finding that Congress is permitted to regulate activities that,
when “taken together with th[ose] of many others similarly
situated,” have an effect on interstate commerce).
We have likewise recognized that, because the Hobbs Act
reflects the full breadth of Congress’ commerce power, the
aggregation principle applies in the Hobbs Act context. See
Tillery, 702 F.3d at 174-75; Williams, 342 F.3d at 355. Indeed,
to focus exclusively on an individual act would wholly undermine
Congress’ purpose in adopting the Hobbs Act: to protect
commercial, interstate activity from criminal disruption. See
United States v. Culbert, 435 U.S. 371, 373 (1978) (finding that
the words of the Hobbs Act “do not lend themselves to
restrictive interpretation”).
8
In so ruling, we note the large number of circuits that
agree that the aggregation principle applies in the context of a
Hobbs Act violation. See United States v. Powell, 693 F.3d 398,
402 (3d Cir. 2012) (“[B]ecause 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.”) (citations omitted); United
States v. Robinson, 119 F.3d 1205, 1214 (5th Cir. 1997) (same);
United States v. Davis, 473 F.3d 680, 683 (6th Cir. 2007)
(same); United States v. Marrero, 299 F.3d 653, 655 (7th Cir.
2002) (same); United States v. Bolton, 68 F.3d 396, 399 (10th
Cir. 1995) (same); United States v. Guerra, 164 F.3d 1358, 1361
(11th Cir. 1999) (same). “Any other rule would leave the
federal government helpless to deal with criminal acts that have
an individually trivial but cumulatively significant effect on
the movement of goods and services across state and
international boundaries.” United States v. Thomas, 159 F.3d
296, 298 (7th Cir. 1998).
The requirement that the precise effect on commerce be
traced in each and every case would not only damage the
aggregation principle and the class of acts principle that
underlies it; it would also raise concerns of practicality which
9
militate against a requirement of showing every charged crime’s
precise commercial effect. See Marrero, 299 F.3d at 655 (“Nor
is it necessary that the individual criminal act . . . 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.”). To the extent that United States v. Needham, 604
F.3d 673 (2d Cir. 2010), is in tension with our holding, we note
simply the observation of Judge Cabranes that “‘commerce’ for
purposes of the Hobbs Act -- that is, ‘commerce over which the
United States has jurisdiction,’ 18 U.S.C. § 1951(b) --
encompasses marijuana that is grown, processed, and sold
entirely within a single state.” Id. at 688 (Cabranes, J.,
dissenting in part and concurring in part). If there is to be a
“marijuana exception” to traditional Hobbs Act principles, that
is a policy choice for the Congress to make. Until it does, we
shall follow the plain lessons of Supreme Court cases and our
own precedent, which must of necessity govern our disposition of
this case.
It is of no relevance that the market for a certain
commodity may be illegal. The jurisdictional predicate in the
Hobbs Act speaks of “commerce,” not just “legal” or “legitimate”
commerce, and commerce is well understood to encompass unlawful
transactions. See Raich, 545 U.S. at 18-19 (holding that the
Commerce Clause empowers Congress to regulate and criminalize
10
the national market for marijuana). Drug dealing is a
commercial enterprise and robberies of drug dealers threaten
that enterprise; that is enough for a federal court to exercise
jurisdiction under the Hobbs Act. See Williams, 342 F.3d at 354(finding that “robberies of drug dealers . . . impact[] a trade
that plainly is both economic and interstate in character”).
Finally, it is not dispositive that the robberies involved
the invasion of the victims’ homes. Many businesses, including
illegal drug enterprises, operate out of homes. As the Supreme
Court has emphasized, commercial activities in or near the home
may have a significant cumulative effect upon interstate
commerce. See Raich, 545 U.S. at 19 (holding that, “when viewed
in the aggregate, . . . Congress had a rational basis for
concluding that leaving home-consumed marijuana outside federal
control would . . . affect price and market conditions”);
Wickard, 317 U.S. at 128 (“It can hardly be denied that a factor
of such volume and variability as home-consumed wheat would have
a substantial influence on price and market conditions.”).
Thus, the locus of the commercial activity is not the litmus
test of a Hobbs Act violation.
B.
We now turn to the merits of Taylor’s claims. He first
contends that the government was required to offer
particularized evidence that his personal robberies affected
11
interstate commerce and that, because the government offered no
such evidence, the district court lacked jurisdiction over his
prosecution under the Hobbs Act. In an appeal contesting the
sufficiency of the evidence, we view “the evidence and the
reasonable inferences to be drawn therefrom in the light most
favorable to the Government” and uphold the verdict if it is
supported by substantial evidence. Williams, 342 F.3d at 355(internal quotation marks omitted).
At the conclusion of trial, the district court instructed
the jury on the jurisdictional element as follows:
In considering . . . whether there has been an
obstruction, delay, or effect on interstate commerce,
I tell you that the government has met its burden of
proof if you find and believe from the evidence beyond
a reasonable doubt that the defendant reduced the
movement of articles and commodities in interstate
commerce, in this case illegal drugs and drug
proceeds, or attempted to do so by the robberies
charged in Counts One and Three.
It is not necessary for the government to prove that
the defendant intended to affect interstate commerce;
rather, this element may be proven by evidence that a
defendant’s actions were likely to affect interstate
commerce, even though the actual impact on commerce is
small.
J.A. 673-74. These instructions were in accord with the law as
described above and Taylor’s argument thus rests solely on the
sufficiency of the evidence with regard to the jurisdictional
predicate. But while Taylor contends that the government failed
12
to prove the jurisdictional element, we find that the jury could
rationally have found that the government met its burden.
First, it was entirely reasonable for the jury to conclude
that the robberies “would have the effect of depleting the
assets of an entity engaged in interstate commerce.” Buffey,
899 F.2d at 1404. In Williams, we found that drug dealing was
“an inherently economic enterprise that affects interstate
commerce.” 342 F.3d at 355. Although Williams involved cocaine
and Taylor’s robberies involved marijuana, the principle of
aggregation does not apply differently for different drugs. See
Raich, 545 U.S. at 18-19 (applying the aggregation principle to
the market for marijuana). Because drug dealing in the
aggregate necessarily affects interstate commerce, the
government was simply required to prove that Taylor depleted or
attempted to deplete the assets of such an operation.
Sufficient evidence was adduced at trial for a rational
jury to find that Whorley was a drug dealer and that Taylor
depleted or attempted to deplete his assets during the August 27
robbery. The record shows that the Goonz were in the business
of robbing drug dealers, Fitzgerald testified that he selected
Whorley’s house to rob because he was informed that a drug
dealer lived there, and testimony further revealed that Taylor
took part in the robbery because he expected to find drugs and
drug proceeds in the home. Furthermore, Whorley admitted to
13
having sold drugs in the past and Graham did in fact possess
marijuana at the time of the robbery. A Roanoke City detective
testified that drug dealers are commonly victims of repeated
home invasions and that he suspected Whorley of being a drug
dealer because Whorley’s house had been broken into at least
twice prior to the August 27 robbery.
Additionally, the money, jewelry, cell phones, and
marijuana cigarette that Taylor stole are sufficient to meet the
de minimis standard under the depletion-of-assets theory. “We
have never held . . . that the depletion of assets theory has a
dollar-amount minimum.” Tillery, 702 F.3d at 175. But even if
these items together do not meet that low threshold, the jury
could rationally have concluded that Taylor attempted to steal
drugs and drug proceeds, and therefore satisfied the Hobbs Act
jurisdictional element. See Brantley, 777 F.2d at 163-64(holding that Hobbs Act jurisdictional element may be satisfied
by inchoate crimes).
Likewise, the government proffered sufficient evidence for
a rational jury to conclude that Lynch was a drug dealer and
that Taylor depleted or attempted to deplete his assets in the
October 21 robbery. As with the robbery of Whorley, the Goonz
was a group dedicated to robbing drug dealers. Fitzgerald
testified that he had received intelligence from a reliable
informant that Lynch was a drug dealer and had previously been
14
robbed of twenty pounds of marijuana. Additional testimony
revealed that Taylor thought there would be drugs and drug
proceeds in the house. Fitzgerald called Lynch by his nickname,
“W.T.,” and, when he demanded that Lynch hand over the drugs,
Lynch told him that the marijuana was with another person.
Moreover, a federal officer testified that Lynch admitted that
he had sold drugs before the robbery without his wife’s
knowledge and Lynch’s wife testified that he associated with
suspicious characters who used and possessed illegal drugs. As
with Whorley, the jury could rationally have found that Taylor
attempted to deprive Lynch’s operation of both drugs and drug
proceeds and found jurisdiction accordingly. There was thus
sufficient evidence at trial for the jury to have determined
that the jurisdictional element was satisfied under a depletion-
of-assets theory for both the Whorley and Lynch robberies.
Apart from the effect on the assets of an operation whose
character involves interstate commerce, there was evidence that
the defendant intentionally targeted a business engaged in
interstate commerce. See Powell, 693 F.3d at 405. While
evidence of the defendant’s intent is not required to prove that
his robberies had an impact on interstate commerce, that intent
is still probative on the question of whether his actions would
have had the “natural consequence[]” of affecting such commerce.
See id. (finding jurisdictional element met because defendant
15
“deliberately sought to rob business owners to obtain proceeds
of businesses engaged in interstate commerce”).
Under the targeting theory, a defendant who robs a victim
in the belief that he will recover the proceeds of an enterprise
engaged in interstate commerce will not fortuitously escape
prosecution under the Hobbs Act because his target did not
possess those proceeds at the precise time of the robbery. See
Brantley, 777 F.2d at 162 (“It may be enough [to prove the
jurisdictional predicate] that the parties intended to complete
a transaction which would have affected commerce, though their
intention was frustrated.”). The amount of cash on hand in a
drug dealing enterprise fluctuates dramatically; the victims
were doubtless targeted by Taylor and the other Goonz in the
hope they would be found at a flush moment. That they were not
does nothing to vitiate Taylor’s intent to target an enterprise
which by its nature engages in interstate commercial activity.
The evidence here was thus sufficient for two independent
reasons. Whether viewed through the lens of the effect of the
defendant’s crimes (depletion of assets) or his intent
(targeting), the government adduced sufficient evidence in this
case to meet the jurisdictional element of the Hobbs Act. We
16
therefore sustain Taylor’s Hobbs Act convictions. * As Taylor
challenged his conviction for using or carrying a firearm in
furtherance of a crime of violence under 18 U.S.C. § 924(c)
solely on the ground that the Hobbs Act predicate was infirm,
that conviction too must be upheld.
This is not to imply that the reach of the Hobbs Act is
without limits. All robberies are disruptive, but not every
disruption is an obstruction of commerce. The Sixth Circuit,
for example, held that the jurisdictional element of the Hobbs
Act was not satisfied when the defendant stood convicted of
robbing “private citizens in a private residence” of money, some
of which just happened to “belong[] to a restaurant doing
business in interstate commerce.” United States v. Wang, 222
F.3d 234, 240 (6th Cir. 2000). Whatever connection between the
robbery and the business was absent in Wang is plainly present
in the case at bar.
*
Taylor’s second argument is that the district court erred
in granting the government’s pretrial motion in limine
precluding him from presenting evidence that the marijuana at
issue was grown in Virginia and thus was not connected to
interstate commerce. We review the district court’s evidentiary
rulings for abuse of discretion. United States v. Moore, 27
F.3d 969, 974 (4th Cir. 1994).
The district court found that, because drug dealing
enterprises inherently affect interstate commerce, any argument
or evidence tending to show that the drugs in the particular
case had not moved across state lines was not relevant. For the
reasons expressed in Part II.A, supra, that ruling was correct,
and the trial court necessarily did not abuse its discretion in
granting the government’s motion.
17
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
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