Update June 20, 2016: Today the Supreme Court affirmed Taylor’s conviction by a 7-1 vote, upholding the government’s expansive assertion of federal jurisdiction under the Hobbs Act.
What are the limits of federal criminal jurisdiction – and what does that have to do with growing marijuana in your back yard?
There’s a lot of debate these days about the scope of federal criminal law and the issue of overcriminalization. Broadly written federal statutes and legal theories such as honest services fraud have the potential to turn a vast number of traditional state crimes into federal offenses, often with very hefty federal penalties.
Last week in Taylor v. United States the U.S. Supreme Court considered a challenge to the federal government’s assertion of criminal jurisdiction in an armed robbery case. But despite the relatively weak jurisdictional link, the Court does not seem poised to use the case to cut back on the reach of federal criminal law.
David Taylor and the “Southwest Goonz”
In 2009 a large number of home invasion robberies took place in the Roanoke, Virginia area. Local and federal law enforcement concluded that the perpetrators were targeting the homes of drug dealers, hoping to steal large quantities of money and/or drugs from victims who might be unlikely to report the crime to the authorities. A gang known as the “Southwest Goonz” was ultimately linked to more than thirty of these robberies; David Taylor was indicted in federal court for taking part in two of them.
In both robberies, the evidence was that Taylor and the other perpetrators targeted the homes in question because they believed the inhabitants were selling drugs. In each case, however, no drugs or substantial amounts of money were found. After threatening the occupants at gunpoint, Taylor and the others ended up stealing relatively minor items such as some jewelry, cell phones, a small amount of cash, and a single marijuana cigarette.
Taylor was convicted of two counts of robbery under a federal statute known as the Hobbs Act, as well as one count of using a firearm during a crime of violence. He was sentenced to nearly thirty years in prison.
The Hobbs Act imposes criminal liability on anyone who obstructs, delays, or affects commerce, or attempts or conspires to do so, through robbery or extortion. There was no real dispute that the robberies took place and that Taylor participated. But his lawyers argued the government had failed to prove beyond a reasonable doubt that Taylor’s actions affected commerce as required by the statute, given that this was basically a small-time local robbery.
The Hobbs Act defines “commerce” as any commerce between the states, as well as “all other commerce over which the United States has jurisdiction.” Taylor wanted to present evidence at trial that the victims of these robberies only sold Virginia-grown marijuana. Robbery of a dealer acting only within Virginia and selling only Virginia marijuana, he argued, would not affect interstate commerce to a degree sufficient to give the federal government criminal jurisdiction.
The lower courts ruled against Taylor, holding that all the government had to establish for Hobbs Act jurisdiction was that the defendant had attempted to rob someone who was selling illegal drugs. The government was not required to prove the marijuana in question had actually moved in interstate commerce or that any actual effect on interstate commerce had occurred. The Supreme Court agreed to hear the case to address what the government has to prove concerning the effect on commerce in a Hobbs Act robbery prosecution.
The Limits of the Commerce Clause
As a government of enumerated and limited powers, the federal government must have a constitutional basis for every federal criminal statute. The default presumption is that crime is prosecuted by the states, and the overwhelming majority of criminal prosecutions in this country do take place at the state level. If the federal government wants to step in, it requires a constitutional “hook” to assert jurisdiction.
For many federal criminal statutes that hook is the Commerce Clause in Article I, Sec. 8 of the Constitution, which gives Congress the power to regulate commerce “among the several states.” Many federal crimes require the government to show an effect on interstate commerce as an element of the offense, in order to establish federal criminal jurisdiction. This requirement historically has been interpreted very broadly, requiring the prosecution to show only a minimal impact on commerce in any given case.
Over time Congress became accustomed to relying on the Commerce Clause to justify almost any piece of criminal legislation. But the Supreme Court dramatically curtailed those efforts in the landmark 1995 case of United States v. Lopez. In Lopez the Court struck down the federal Gun Free School Zones Act, which made it a crime to possess a gun in the vicinity of a school. The Court ruled that the Commerce Clause power did not allow Congress to regulate purely local gun possession with no apparent effect on interstate commerce. Five years later, in United States v. Morrison, the Court struck down the federal Violence Against Women act for essentially the same reason, holding that domestic violence was a local crime without an adequate link to interstate commerce.
But Lopez and Morrison turned largely on the Court’s conclusion that Congress was trying to use the Commerce Clause power to regulate local activities that were not commercial in nature. When it comes to activity that clearly is commercial, courts have routinely upheld the assertion of federal jurisdiction even when the effects on commerce in a particular case appear to be minimal.
For example, if a small restaurant that caters almost exclusively to local customers is robbed, courts will still find an effect on commerce because the restaurant purchases food and other goods that move in interstate commerce and as a result of the robbery will have fewer assets with which to make those purchases. Similarly, even if a particular action has a relatively trivial effect on commerce, jurisdiction will be upheld if the class of all such similar actions, taken in the aggregate, would affect interstate commerce to some degree.
Given the historically broad interpretation of the Commerce Clause, Taylor was always going to have an uphill battle. But it’s even worse for Taylor than it appears, for two reasons: 1) he was trying to rob a drug dealer, not just any merchant; and 2) the Hobbs Act applies to conspiracies to rob and attempted robberies, not just to actual robberies.
As noted above, the Hobbs Act applies when there is an effect on interstate commerce or on any other commerce over which the federal government has jurisdiction. And when it comes to drugs the Supreme Court has already ruled, in a case called Gonzales v. Raich, that the federal government has jurisdiction over all controlled substances, even locally grown marijuana that never crosses state lines. In Raich, users of medical marijuana argued that under Lopez and Morrison the federal government did not have the power to regulate their purely local growth and possession of marijuana. But the Court held that Congress has the authority to regulate even intrastate drug activity under the Controlled Substances Act, based on its potential to have an impact on the overall interstate market in illegal drugs.
In addition, because the Hobbs Act applies to attempts and conspiracies, it doesn’t really matter whether the perpetrators succeed in stealing illegal drugs. If the government shows that the robbery was carried out because the defendants planned or intended to steal illegal drugs, that will suffice – even if, as in Taylor’s case, the defendants were unsuccessful.
In short, in light of Raich, if you attempt to rob a drug dealer the “effect on commerce” requirement is almost automatically satisfied: Congress has jurisdiction over the commerce in illegal drugs, and robbing a drug dealer will always have some effect on that commerce. This is essentially what the lower courts held in Taylor’s case. And that effectively transforms the Hobbs Act into a law that automatically makes it a federal offense to rob a drug dealer – even one that is operating completely within a single state.
Taylor’s Argument and the Government’s Burden of Proof
Taylor’s primary argument is that, under the government’s theory, an effect on commerce is automatically established. But proving an effect on commerce is an element of the Hobbs Act offense. The government, he argues, should never be relieved of its obligation to prove each element beyond a reasonable doubt. Taylor urged that the government should be required to show some actual effect on commerce from the robbery in a given case.
At oral argument some members of the Court did seem troubled by the notion that the commerce requirement is automatically satisfied any time the intended robbery victim is a drug dealer, no matter the individual circumstances. They pressed the government attorney on whether there was any evidence a defendant could offer to rebut this element of the crime.
The government’s response boiled down to this: although it did not have to establish an actual effect on commerce resulting from robbing a drug dealer, it still did have to prove beyond a reasonable doubt that robbing a drug dealer is what the defendant intended to do. In other words, the government would have to prove first that there was a robbery, and then, in order to rely on the jurisdiction holding in Raich, it would have to prove that the intended victim was in fact a drug dealer. About the only evidence a defendant could introduce to rebut this element would be evidence that, even though a robbery took place, the defendant never intended to rob a drug dealer and the victim was not in fact selling drugs.
It’s not immediately clear why the Court took the Taylor case. The Justices may be looking for a way to trim back the assertion of federal jurisdiction under the Hobbs Act – but given the Raich holding, Taylor’s case does not seem like a likely vehicle. For example, if Taylor had robbed someone who was growing carrots in his back yard and selling them only to his neighbors, the Court may have probed what the government should have to prove concerning the effect on interstate commerce (since, unlike the market for illegal drugs, Congress does not necessarily have jurisdiction over an intrastate market for carrots). Perhaps if a case involved only the robbery of a single carrot, the Court would have occasion to limn the limits of Hobbs Act jurisdiction.
More difficult questions also would have been raised if the robbery had been of someone who grew marijuana in his back yard but only raised it for personal use, not for selling to others. Usually the robbery of an individual is not considered to have an effect on interstate commerce. Would the mere fact that the robbery involved marijuana be enough to confer Hobbs Act jurisdiction, even if no trade in illegal drugs was involved?
But although Taylor may not prevail on his jurisdictional arguments, the facts of his case are relevant for those concerned about the increased federalization of criminal law. Justice Ginsburg observed these were relatively routine robberies that easily could have been prosecuted by the state. The government responded that Taylor’s case was only one small part of a much larger federal investigation and prosecution. Still, Taylor’s nearly thirty-year federal sentence is pretty stiff.
When former Virginia Governor Bob McDonnell faced two years in prison for public corruption, a dozen different legal and political groups filed amicus briefs on his behalf in the Supreme Court arguing that his prosecution was an overreach by the federal government. But Taylor, facing a nearly thirty year sentence, stood alone before the Court; not a single amicus intervened to argue on his behalf against the remarkable breadth of the Hobbs Act.
Given Raich and the federal interest in the illegal drug trade, the Court does not seem likely to use the Taylor case to rein in the Hobbs Act. We will have to await future cases to see if the Court is inclined to impose some new Commerce Clause limitations on federal criminal jurisdiction.
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