Crime & Federalism

Hobbs Act and the Commerce Clause

The Ninth Circuit has agreed to rehear United States v. Lynch, No. 02-30216 en banc.  Criminal Appeal's prior coverage of Lynch is here.

Preview of Cato's Supreme Court Review

Each year, to celebrate Constitution Day, the Cato Institute publishes a Supreme Court Review.  I've been reading them since the inaugural issue, as they're sure not to disappoint.  This year seems like it won't be any exception, judging by Jonathon Adler's article. (Lv Kerr.)

Prof. Adler previews some of the interesting cases the Supreme Court has already agreed to hear.  As Prof. Berman noted, he does not discuss the upcoming death penalty cases.  (That's fine by me, since modern Supreme Court death penalty jurisprudence is meaningless.)

Anyhow, I highly recommend the article, mainly because the same cases I care about, Prof. Adler seems to care about too.  In other words, if you like this blog, you will love the article.  Here it is.

The cases I'm closely watching, and thus will blog about, include these issues:

*    Whether the Religious Freedom Restoration Act prevents the government from prosecuting members of a religious sect who use hallucinogenic tea to talk to God.  (pp. 6-8).

*    Whether the federal government can prevent the people of the state of Oregon from allowing doctors to prescribe medicine to help sick people die with dignity.  (pp. 8-11).

*   May a victim of disability discrimination sue a prison under Title II of the ADA, or does sovereign immunity bar his suit? (pp. 12-13).

*    The Crime & Federalism blockbuster: Does the Hobbs Act criminalize threats of violence unconnected to economic activity?  (pp. 16-17).  As Adler aptly notes: 

[This] question is interesting insofar as it induces the Court to consider the scope of federal criminal law. If the Hobbs Act were to extend to all acts or threats of violence that obstruct or affect commerce in some way, it would become an incredibly sweeping federal criminal statute. It would also bring all manner of local violent crimes within RICO’s reach as potential predicate acts.

*   Can a prosecutor be fired for doing the right thing and volunteering that a prosecution witness was likely lying?  (pp. 24-25).  (Incidentally, I'll be returning to my alma matter to beat up moot some law students who are arguing this case for our school's intraschool moot court competition.)

As you can see, there will be a lot of interesting cases next term.  I noted the ones that interest me,  but I encourage you to read the entire article since there are a lot of other interesting cases on the docket.

More "Interstate Commerce" Nonsense

Today Judge Posner, on behalf of a unanimous three-judge panel, wrote that attempting to coerce someone into withdrawing money from an ATM machine is a Hobbs Act violation.

No one was able to identify the robber, but he had left a fingerprint on the car window and eventually this was matched with a fingerprint of the defendant’s that was on file. Had the crime not been interrupted, and Cahill been forced to withdraw money from an ATM, she would have done so by inserting her card into the ATM, causing an electronic signal to be sent to Ohio, where the transaction would have been processed and a signal dispatched back to the ATM to enable her to withdraw cash from the machine.

The Hobbs Act criminalizes robbery and extortion that “in any way or degree obstructs, delays, or affects commerce.” 18 U.S.C. § 1951(a). The defendant argues that since he never got near the ATM, he could not have violated the Act. That is wrong. The Hobbs Act expressly embraces attempts to obstruct commerce by robbery or extortion, id., as well as the completed obstruction. So the question is merely whether commerce would have been obstructed had the attempt succeeded. United States v. Bailey, 227 F.3d 792, 797 (7th Cir. 2000); United States v. Jamison, 299 F.3d 114, 117-20 (2d Cir. 2002). It would have been. Had Cahill been forced to withdraw money from an ATM, the withdrawal would have been an interstate transaction, a transaction in commerce.

United States v. McCarter, No. 04-1684, Slip op. at 2-3 (7th Cir. Apr. 27, 2005) (Posner, J.).  As I noted in this post - Federal Powers and Cell Phones - in the Seventh Circuit, using a cellular telephone provides federal jurisdiction.

Chickens, Guns, and Commerce

The great Judge Friendly once asked: "What is chicken?"  Frigaliment Imports case.  Almost a half-century later, we need to ask: What is an article of commerce?  More specifically: When does an article of commerce cease to be an article of commerce.  Why does this matter?

After Lopez, Congress reenacted the Guns Free School Zone Act with one added proviso: the gun must have moved through interstate commerce.  Indeed, all of 18 U.S.C. Sec. 922 are predicated on the theory that the firearm once moved through interstate commerce.

But shouldn't a firearm eventually lose its status as an article of commerce?  Isn't it silly to say that a firearm you've owned (and that has never left your residence) for twenty years remains an article of commerce?  It's not answer that a firearm could be sold once again.  To adopt this position would be to adopt the position that anything that can be sold is an article of commerce, and therefore, can be regulated by Congress.

In a recent Hobbs Act case, the conviction was predicated on the extortion of two pieces of art work that had travelled from Russia.  But the art work was already in America, where it was to be sold intrastate.  It's one thing if the goods had been stolen once they were in the stream of commerce.  But once downstream, don't they stop being commerce?

"Another Hobbs Act Decision Rejects Commerce Clause Challenge"

And another informative post here.

UPDATE: I have an excellent model motion to dismiss a Hobbs Act charge under Lopez (and, by extension, Morrison).  I didn't write it.  I downloaded it from a Federal Defender's public brief bank.  I can't find the site so I'm uploading the file here.  If anyone recognizes from whence the motion came, leave a comment or e-mail me, so I can provide a link to the FD's site.

Download mtd.Hobbs.Act.Lopez.Morrison.pdf