REVISED DECEMBER 13, 2002

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10569

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JAMES MCFARLAND, JR

Defendant - Appellant

Appeal from the United States District Court for the Northern District of Texas

October 28, 2002

Before KING, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

By reason of an equally divided en banc court, we affirm the

district court’s judgment of conviction and sentence. DAVIS and BENAVIDES, concurring in the affirmance of the

judgment:

It is a deep mystery to us why five judges thought it

helpful or appropriate to take eight fellow judges to task for

failing to explain why they decline to change the established law

of this circuit and create a circuit split. We of course

disclaim their attempt to attribute views to us. GARWOOD, Circuit Judge, with whom JOLLY, HIGGINBOTHAM, JONES,

SMITH, BARKSDALE, DEMOSS and CLEMENT, Circuit Judges, join,

dissenting:

We respectfully dissent from the evenly divided Court’s per

curiam, unexplained affirmance of these convictions. The nature

of the case and our reasons for concluding that reversal is

required are set forth below.

James McFarland, Jr. appeals his conviction of four counts of

robbery of local convenience stores in Fort Worth, Texas, in

violation of

(the Hobbs Act) and four

corresponding counts of using and carrying a firearm during and in

relation to those robberies in violation of

(c)(1).

He challenges his conviction on the Hobbs Act counts, asserting

that the evidence was insufficient to establish the

constitutionally or statutorily required nexus to interstate

commerce and that the jury charge respecting this element was

defective. A panel of this court affirmed per curiam. United

States v. McFarland,

(5th Cir. 2001). The panel

considered itself bound by our prior decision in United States v.

Robinson,

(5th Cir. 1997), and United States v.

3 Hickman,

(5th Cir. 1998), aff’d by an equally divided

en banc court,

(5th Cir. 1999), cert. denied,

(2000). Judge Demoss specially concurred,

, urging en banc reconsideration in light of the intervening

decisions in United States v. Morrison,

(2000), and

Jones v. United States,

(2000), the equally divided

nature of the Hickman en banc affirmance and Judge Higginbotham’s

dissent therefrom. The Court subsequently took the case en banc.

United States v. McFarland,

(5th Cir. 2002).

Facts and Procedural Background

McFarland was charged in a ten count indictment with five

Hobbs Act robbery counts, and five related section 924(c)(1)

counts, pertaining to robberies of local convenience stores

committed in Fort Worth, Texas, in November and December 1998.1 He

was acquitted of one of the robbery counts and of its related

section 924(c)(1) count.2 He was convicted on all the remaining

counts. The four Hobbs Act counts of conviction (counts one, five,

seven and nine) each alleged that McFarland “did knowingly and

willfully obstruct, delay, and affect interstate commerce and did

attempt to obstruct, delay and affect interstate commerce, by

robbery, to wit: the defendant did take and obtain property, namely

1 McFarland had been arrested for the robberies by Fort Worth police in late December 1998 and incarcerated in the Tarrant county, Texas, jail. He was later transferred into federal custody when the state dismissed its robbery charges against him and the United States Attorney adopted the robbery offenses for federal prosecution. 2 The counts of acquittal were count three (robbery on November 24, 1998 of Haynie’s Inc.) and count four (the related § 924(c)(1) count).

4 United States Currency, from the person and in the presence of . .

. [name of store employee], an employee of . . . [name and address

of store], against his will by means of actual and threatened

force, violence, and fear of injury to his person.”3

The stores involved, the amounts taken, in each case from the

cash register, and the relevant dates of the four robberies were

the following:

Count one, robbery November 20, 1998 of “Buy-Low” convenience

store in which “about $100, close to $100" was taken;

Count five, robbery December 3, 1998 of Gateway Discount

Liquor store in which “somewhere around 15 [$1,500] to $2,000" cash

was taken;

Count seven, robbery December 11, 1998, Quickway Shopping

3 Although, as indicated, these counts each reference “attempt,” the jury charge makes no reference whatever to “attempt,” and these counts were submitted to the jury entirely on a completed offense basis. There was no conspiracy allegation or count, each Hobbs Act count was submitted to the jury as a separate and distinct offense, and the jury was charged “A separate crime is charged in each count of the indictment. Each count and the evidence pertaining to it should be considered separately.” The defendant acted alone in each of the robberies, although there is evidence indicating that in at least one of them he was driven from the site just after the robbery by his wife or girlfriend. There is no suggestion that the defendant (or the wife or girlfriend) was other than a resident of Fort Worth, or that he had any intention or purpose to do or accomplish anything other than simply what he did, namely take cash from each store robbed.

5 convenience store in which “about $50" cash was taken;4

Count nine, robbery December 21, 1998, Jeff Stop convenience

store, in which $145 cash was taken.

Each of these four stores was a retail store, three being

retail convenience stores and one a retail liquor store. There is

no evidence that any of the four stores made any sales or shipments

to points or purchasers outside of Texas, or, indeed made any sales

other than at the store premises to retail purchasers resident in

Fort Worth. There is no evidence that any of the stores was

located at (or near) any transportation facility, such as a bus or

train station or airport, or on an interstate highway. Three of

the stores–Buy-Low, Jeff Stop and Gateway Discount Liquor–were

apparently stand-alone, single location, concerns, unaffiliated, by

common ownership or otherwise, with any other concern. The

Quickway Shopping convenience store was apparently one of an

unstated number of such stores so named, and William Gumfory, owner

of the store robbed, may have owned some (or all) of the other

4 “About $50" is the testimony of Rosa Candanosa, the employee on duty at the store when the robbery took place who took the money from the cash register and handed it to the defendant. The then store owner, William Gumfory, who at the time of trial in March 2000 had been retired for an unstated length of time, testified he was not at the store when the robbery occurred. When asked by the prosecution “can you tell us approximately how much your store was robbed the day Rosa Candanosa was working” he replied “I really don’t recall, but I would say in the neighborhood of $100.” No further precision was supplied nor is there any explanation of how or on what basis the “in the neighborhood of $100" was arrived at.

6 Quickway Shopping convenience stores.5 There is no evidence that

any of the four robbed stores (or any Quickway Shopping store) had

any facilities, property, employees, bank accounts or activities

outside of Fort Worth, or was owned, in whole or in part, by any

one not a Fort Worth resident.

Each of the four retail stores sold items of merchandise some

of which the evidence showed were originally manufactured or

processed outside of Texas.6 As to none of the three convenience

stores was there any evidence indicating what fraction or

percentage of their sales was of or allocable to items which had

been manufactured or processed out of Texas, or what was the total

dollar amount either of such sales or of all sales at the

particular store. As to the Gateway Discount Liquor store, one of

the three Texas wholesalers who supplied it testified that ninety-

five percent of what he distributed both generally and to that

particular store “came from outside the state of Texas” and that a

5 The evidence in this respect is sparse, consisting only of the following. William Gumfory replied “That is correct” to the prosecutor’s question “Was one of the convenience stores that you owned Quickway Convenience Store shopping on 245 Bailey Fort Worth, Texas” [The store robbed on December 11, 1998]. And, a Weatherford, Texas, wholesaler testified that “we supplied Quickway Convenience Stores as a group,” that he supplied the Quickway store at 245 Bailey Street, had long done business with Mr. Gumfory, and answered “yes” to the prosecutor’s question did he “rely on Mr. Gumfory’s stores, at least in the December ‘98 time frame, and stores like that, in conducting your business?” 6 Such out-of-state items included the following. The Buy- Low store sold cigarettes, Coors beer and Gatorade. The Quickway Shopping store sold cigarettes, Tropicana Orange Juice, Coors beer, Gatorade, Nabisco snacks, Anacin and Purina dog food. The Jeff Stop sold cigarettes, Tropicana Orange Juice, Coors beer, Anacin, and Purina dog food. The Gateway Discount Liquor store sold various liquors produced outside of Texas.

7 very small amount of liquor or wine products was produced in Texas.

The only evidence as to the Gateway Discount Liquor Store’s dollar

volume of sales and purchases was that it had $26,640.69 sales and

$23,084.73 purchases from November 17 to November 30, 1998, and

$34,910.03 sales and $36,547.67 purchases from December 1, 1998

through December 17, 1998, and that in the retail liquor business

people start buying after Thanksgiving and the busiest time of year

is from October through December.

There was no evidence that either the Buy-Low store or the

Jeff Store acquired any of their inventory from sources outside of

Texas, as opposed, for example, to acquiring it from a Texas

wholesaler. Indeed, there was no evidence whatever as to how or

from whom or where or on what basis either of those two stores

acquired their inventory, except that they purchased it. The only

evidence in this respect as to Gateway Discount Liquor is that it

purchased its inventory from three Texas wholesalers, as required

by Texas law. The only one of these three wholesalers who

testified stated “I pay for that product beforehand, and its mine

to distribute and sell and collect.” Quickway Shopping purchased

its merchandise inventory from a Weatherford, Texas, wholesaler,

Hartnett Company, which in turn had purchased items including

Tropicana juices from Florida, Wrigley’s Gum and Gatorade from

Chicago, and Purina dog food from Oklahoma. The goods Hartnett

Company acquires come to a warehouse in Texas. It then sells them

to local retail stores (and to some stores in Kansas). Quickway

Shopping also sold money orders which it acquired from a company in

Minnesota, and Mr. Gumfory testified “any money orders we sold we

8 paid off the same day” and estimated “we sold probably 300 a

month.” It is not clear whether the 300 figure refers to the total

number of individual money orders or the total face amount of the

money orders sold per month. Nor is it clear whether the reference

is to all Gumfory’s Quickway Shopping stores or the particular one

robbed of $50 on December 11, 1998.

The owners when the robberies occurred of Buy-Low, Jeff Stop

and Gateway Discount Liquor stores testified that the percentage of

their gross sales proceeds used to restock inventory was seventy-

five percent for Gateway and Jeff Stop and seventy percent for

Gateway. The former owner of Quickway Shopping testified that his

profit margin on sales was approximately twenty-five percent,

meaning that “if we sold $20,000 a month, we would have to buy

$15,000 a month to replace it.” These store owners each gave

brief, conclusory testimony that robbery of money from the store

would cause problems respecting, hurt or hinder inventory

purchases.7 However, there was no evidence that any of the stores

actually did purchase less, or delay any purchase, as a result of

7 The Buy-Low owner answered “yes” when asked “when money is stolen from you like that, does it cause you problems in rebuying inventory.” The Jeff Stop owner answered “yes” when asked “when your store is robbed of its money, does that hurt your ability to re-buy, repurchase merchandise to sell in your store.” The Quickway Shopping owner, asked “if your store is robbed of its money, does that hinder your ability to replenish your stock,” responded “well, naturally, we have less money to operate with.” The Gateway Discount Liquor owner, asked “if your store is robbed of money and you don’t have that money, it hurts your ability to replenish your stock,” replied “yes. It does hurt us.” Comparable general testimony was likewise given by the liquor wholesaler, the wholesaler who supplied Quickway Shopping and a Coors distributor; these wholesalers also gave general testimony that if their customers didn’t pay them they couldn’t pay the suppliers from whom they had purchased their products.

9 (or following) the charged robbery of that store. No questions in

that respect were asked of the Buy-Low or Jeff Stop owners, and no

one identified as a seller or supplier to either testified.8

Likewise, neither the Gateway Discount Liquor owner (whose sales

and purchases rose following the robbery) nor the former Quickway

Shopping owner, nor their wholesalers, ever testified that as a

result of the charged robbery the retail store actually reduced or

delayed any purchases, and their testimony suggests that they did

not.9 The Quickway Shopping former owner, when asked “were you not

able to buy anything you would normally buy because that $100

wasn’t there,” responded “we would be able to buy it, but we would

have to take the $100 from the bank or somewhere to keep our

balances in the correct proportion.”10 The Gateway Discount Liquor

owner, when asked “after the $1,500 to $2,000 was taken from you by

the defendant, did it cause your business problems,” responded

8 The Buy-Low owner testified that at some unspecified time prior to the March 2000 trial he had elected to close his store, that “six or seven months” after the charged November 20, 1998 robbery, “we had another robbery,” and that he closed his store for two reasons, “first of all” because his landlord sold the store premises and “number two” because “I’m tired of” being robbed. 9 We also observe that the wholesaler supplying Quickway Shopping, when asked “how do you know a [customer] store has been robbed” responded “because they will call us and need an extra delivery because they don’t have any product in their store.” There is no evidence that this ever occurred respecting any of the four stores. 10 The owner, when asked approximately how much was taken in the robbery, had stated “I really don’t recall, but I would say in the neighborhood of $100.” He was not present when the robbery occurred. The employee on duty testified that “about $50" was taken. There is no other evidence as to the amount taken (see note 4, supra).

10 “It kept me a little stretched. In business every day sales are ringing, but we have to overstretch some bills and tell the distributor that we won’t be able to pay you today, but we’ll pay you in the next two or three days.”

Apart from the just above quoted testimony of the Gateway Discount

Liquor owner, there was no evidence that any of the robberies

resulted in any of the victim stores even slightly delaying any

payment to any party as a result of the charged robberies.

McFarland made and renewed timely motions for judgment of

acquittal on the grounds, inter alia, that the required nexus to

interstate commerce was not shown as to any of the Hobbs Act

counts. These motions were overruled. The trial court’s jury

charge instructed, with reference to the Hobbs Act counts, that,

among other things:

“If you decide that there is any effect at all of [sic] interstate commerce, then that is enough to satisfy this element. The effect can be minimal. A showing that a business regularly buys goods from out of state allows an inference that a robbery may impair a future purchase . . . . If you find beyond a reasonable doubt that the defendant’s conduct affected interstate commerce, then you may conclude that the government has met its burden of proof as to the interstate commerce element of the offense.”

McFarland objected to the word “any” in the first sentence above

quoted, objected to the sentence “the effect can be minimal,” and

to the failure to include the word “substantially,” as he had

previously requested, between “conduct” and “interstate commerce”

in the last above quoted sentence. These objections were all

overruled.

Discussion

As noted, the principal issue presented is whether the Hobbs

Act extends, or may be applied consistent with the limitations of

11 the Commerce Clause reflected by Lopez and Morrison, to these

robberies of local retail stores.

I. The Act, its history and Supreme Court interpretation

The Hobbs Act,

, provides in relevant part:

“ (a) 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 fined under this title or imprisoned not more than twenty years, or both.

(b) As used in this section–

. . .

(3) The term “commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; 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.”11

11 The balance of the statute consists of paragraphs (1) and (2) of subsection (b), reading as follows:

“ (1) The term ‘robbery’ means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

and subsection (c), which provides: “ (c) This section shall not be construed to repeal, modify or affect section 17 of Title 15,

12 It was originally enacted July 3, 1946, ch. 537, Pub. L. 486,

as an amendment to the generally similar Anti-

Racketeering Act of June 18, 1934 (the 1934 Act), Pub. L. 376,

-80.13 The Hobbs Act was occasioned by the holding in

United States v. Local 807,

(1942) that the 1934 Act,

by virtue of its exclusion relating to an employer’s payment of

wages to an employee and its provision indicating an intent not to

diminish union rights, did not apply to the activities of members

of a New York City truck drivers union who, by violence or threats,

extracted payments for themselves from out-of-state truckers in

return for the unwanted and superfluous service of driving the

trucks to and from the city.

; United States v.

Enmons,

, 1011 (1973) (“[A]s frequently emphasized on

the floor of the House, the limited effect of the bill was to shut

off the possibility opened by the Local 807 case, that union

members could use their protected status to exact payments from

sections 52, 101-115, 151-166 of Title 29 or sections 151-188 of Title 45.” 12 In the 1948 revision and codification of Title 18, purely formal, stylistic changes were made to the Hobbs Act (largely reordering and consolidating its subsections and paragraphs). June 25, 1948, Pub. L. 772, c. 645,

-794. In 1994 the words immediately following “fined” in subsection (a) were changed from “not more than $10,000" to “under this title.” Sept. 13, 1994,

Title XXXIII, § 330016(1)(L),

. 13 The 1934 Act was subsequently codified, without substantive change, as §§ 420a through 420e of Title 18, U.S. Code 1940 Ed.

13 employers for imposed, unwanted and superfluous services.”).14

The Senate Report on S. 2248, which (as amended) became the

1934 Act, states that “the nearest approach to prosecution of

racketeers as such has been under the Sherman Antitrust Act” but

such prosecutions have been hampered by the requirement of proving

conspiracy or monopoly and by being merely a misdemeanor, and that

the proposed bill “is designed to avoid many of the embarrassing

limitations . . . of the Sherman Act, and to extend Federal

jurisdiction over all restraints of any commerce within the scope

14 See also United States v. Green,

(1956) (“The legislative history makes clear that the new [Hobbs] Act was meant to eliminate any grounds for future judicial conclusions that Congress did not intend to cover the employer- employee relationship;” “The city truckers in the Local 807 case similarly were trying by force to get jobs from the out-of-state truckers by threats and violence”); H.R. Rep. 238, 79th Cong., 1st Sess. (1945) (reporting favorably H.R. 32 which became the Hobbs Act, the report consisting mostly of verbatim quotation of the entire Local 807 majority opinion and dissent); 89 Cong. Rec. 3202 (1943) (“. . . it is the intention of the Committee on the Judiciary to enact legislation for one purpose, and one purpose alone, namely, to correct the unfortunate decision in the Local 807 case”) (Rep. Walter); 91 Cong. Rec. 11841-11842 (1945) (“I want it distinctly understood that the legislation under consideration is designed to meet one situation and one situation alone. . . . Let us see what that situation is. Unfortunately, the Supreme Court in the famous Local 807 case by a very strained construction . . .”) (Rep. Walter); 91 Cong. Rec. 11841 (1945) (“The sole purpose of the bill . . . is to undo the outrageous opinion of the Supreme Court in the Teamsters Union case where that Court legitimatized highway robbery committed by a labor goon”) (Rep. Cox); 91 Cong. Rec. 11900 (1945) (“This bill is designed simply to prevent both union members and nonunion people from making use of robbery and extortion under the guise of obtaining wages in the obstruction of interstate commerce. That is all it does. . . . this bill is made necessary by the amazing decision of the Supreme Court in the case of the United States against Teamsters Union 807 . . . That is all this bill does. We think a mistake was made by the Supreme Court. We are attempting to correct it . . .”) (Rep. Hancock). The Congressional Record does not reflect any Senate debate or discussion of the Hobbs Act.

14 of the Federal Government’s constitutional powers.” S. Rep. 532,

73rd Cong., 2nd Sess. (1934). The House Report on S. 2248, which

recommends a rewritten form of S. 2248, states “this is the so-

called ‘antiracketeering bill’ for the suppression of racketeering

in interstate commerce,” and quotes a memorandum from Attorney

General Cummings noting that the bill, with the suggested

amendments, had been approved by representatives of organized labor

and that “The Sherman Antitrust Act is too restricted in its terms

and the penalties thereunder are too moderate to make that act an

effective weapon in prosecuting racketeers. The antiracketeering

bill would extend the Federal jurisdiction in those cases where

racketeering acts are related to interstate commerce and are

therefore of concern to the Nation as a whole.” H. Rep. 1833, 73rd

Cong., 2nd Sess. (1934). Despite the breadth of some of this

language, it may be seriously doubted that Congress then

contemplated that it was making a federal crime the “plain vanilla”

cash robbery from a local retail store of the sort here involved.

Moreover, at that time the federal government’s commerce power was

generally viewed far less expansively than it later came to be.

See Lopez, 115 S.Ct. at 1628. The then view of the commerce power

is also suggested by S. Rep. 1189, 75th Cong., 1st Sess. (1937),

the report of the principal congressional committee (the Copeland

Committee) working on the 1934 Act (see United States v. Culbert,

, 1115 & n.6 (1978)), recounting its investigations,

commencing in 1933, into racketeering and the recommendations it

had made for legislation (including the 1934 Act). This report

reflects an understanding that there were meaningful limits on the

15 commerce power. For example, the report mentions the “Poultry

Racket” “practiced upon the live-poultry business in New York

City,” to which the “poultry comes from the Southern and Midwestern

states,” and, due to the rackets, the charge for shipping a carload

of poultry from Chicago to New York was less than the charge for

its unloading and delivery in New York City. Id. at 16, 17. The

report notes “[w]hile some phases of the poultry racket were of a

local nature and not within Federal jurisdiction, the committee

felt that insofar as the transportation and distribution of live

poultry was interstate in character, the necessary legislation

should be enacted. . . .” Id. at 18 (emphasis added). The report

also discusses ”the ‘kick-back’ racket . . . that nefarious

practice of requiring the employee to give back to his employer a

percentage of his earnings,” id., observes, respecting the “kick-

back racket,” that “a great proportion of the complaints came from

the building trades” but “[i]t is, of course, practiced in other

industries,” id. at 19, and concludes, respecting the kick-back

racket, that: “After a thorough study of the testimony given and

the complaints made, the committee concluded that the majority of

the cases presented were of a local nature and were not within the

jurisdiction of the Federal Government. But it was decided that

the committee could effectuate the purpose of certain Federal

statutes concerning rates of wages to be paid on work done under

[Federal] Government contracts.” Id. at 20 (emphasis added).15

15 We are aware of the language in Judge Learned Hand’s opinion in United States v. Local 807,

(2d Cir. 1941), aff’d, United States v. Local 807,

(1942), where, in the course of reversing the convictions of the union

16 truckers for violating the 1934 Act, he remarked “[f]or a number of years before 1934–at least in the City of New York–the levy of blackmail upon industry, especially upon relatively small shops, had become very serious, and the local authorities either would not, or could not, check it. . . . It was, at least primarily, to check such Camorras that Congress passed this measure [the 1934 Act].”

. In United States v. Staszcuk,

(7th Cir. 1975), the en banc Seventh Circuit, in upholding (over three dissents) a Hobbs Act conviction for extorting $3,000 from a property owner to procure a zoning change authorizing construction of an animal hospital (which would have involved importing equipment from other states) despite the fact that the owner, for unrelated reasons, later elected not to build the hospital and improved the property with other construction which would have been permitted without the zoning change, relied on this language of Judge Hand’s to broadly construe the Hobbs Act’s commerce coverage, Straszcuk at 57, in support of its ultimate conclusion to affirm even though “the record demonstrates the extortion had no actual effect on commerce.”

. We attach no significance to Judge Hand’s quoted language. In the first place, Judge Hand in the passage in question was not addressing the matter of an interstate commerce nexus–which was plain and undisputed in the case before him–but was rather distinguishing labor related extortion from other kinds. Further, it is entirely unclear what he meant–especially as it might bear on interstate commerce–by “industry” and “relatively small shops.” And, Judge Hand cites absolutely nothing–no legislative history, no publications, nor anything else–in support of his quoted observations (nor is any such support cited in Staszcuk). Finally, the quoted passage in Judge Hand’s opinion was not cited or alluded to, or anything similar to it stated, by the Supreme Court in the Local 807 case (or in any other case of which we are aware). Doubtless in 1933 and 1934 there was great concern about rackets and crime, but that does not suggest that Congress had a broad view of its Commerce Clause powers or intended to legislate in matters “of a local nature.” In addition to the passages of the Copeland Committee report cited in the text above, we also note the following: “Demands in great numbers for all types of investigations, into all kinds of wrongs, reached the committee. These varied from requests that the committee investigate the internal affairs of municipalities, to requests that it look into specific financial transactions, alleged unconscionable mortgage foreclosures, and the like. The public generally seemed to be unaware of, or at least not alive to, the jurisdictional boundaries in this field created by the constitutional limitations on the power of Congress. . . . [I]t was clear that the committee was not intended as a superpolice, nor as a prosecuting or judicial body for

17 By the time the Hobbs Act eventually passed, the Supreme Court

had already begun its articulation of a Commerce Clause power

greatly expanded over that as previously defined. See Lopez, 115

S.Ct. at 1628. However, this does not seem to have been a matter

at all the subject of consideration by Congress in enacting the

Hobbs Act, and the Act was merely directed at changing the result

in the Local 807 case. See note 14 and accompanying text, supra.

The wording of the Hobbs Act did not in any presently meaningful

way change the 1934 Act’s interstate commerce nexus requirement.16

the supervision and investigation of the activities of local authorities. On the contrary, the subcommittee was organized to consider ways and means by which the Federal Government might aid in the suppression of rackets and racketeering, and, therefore, its activity would have to be limited for the most part to matters falling within the categories of interstate commerce and use of the mails.” Id. at 2. 16 The 1934 Act defined “trade or commerce” as “trade or commerce between any States, with foreign nations, in the District of Columbia, in any Territory of the United States, between any such Territory or the District of Columbia and any state or other Territory, and all other commerce over which the United States has constitutional jurisdiction.” The Hobbs Act definition is of the term “commerce” instead of the 1934 Act’s “trade or commerce,” defined “Territory” as meaning “any Territory or possession of the United States,” omitted the word “constitutional” just before “jurisdiction,” and added the category “between points within the same State, Territory, or the District of Columbia but through any place outside thereof.” The Hobbs Act definition is otherwise the same as in the 1934 Act. The Hobbs Act’s addition of the latter category, if meaningful at all, would merely appear to suggest concern that without it something might possibly have been inadvertently excluded. The concluding “all other commerce” clause in the Hobbs Act (and in the 1934 Act) would appear to include commerce between points in a single State and an Indian Tribe within that state, see, e.g., Morton v. Moncari,

(1974); Perrin v. United States,

, 389 (1914), and commerce between points in the same state by a vessel traveling along the portion of a

18 Nor is any more expansive relation to interstate commerce

suggested by the Congressional committee reports on H.R. 32, the

bill which became the Hobbs Act. The House Committee on the

Judiciary report states that the bill is a “successor” to similar

bills introduced in the 77th and 78th Congresses (the first not

acted on, the second passing the House but not acted on by the

Senate), and that the bill’s purpose is “to prevent interference

with interstate commerce by robbery or extortion.” H. Rep. 288,

79th Cong., 1st Sess. (1945), at 1. It goes on to say that the

bill

“is an amendment of the existing antiracketeering law which was enacted in 1934. It was passed in an effort to eliminate racketeering in relation to interstate commerce, of concern to the Nation as a whole. That statute came under examination of the Supreme Court in United States v. Local 807, and the opinion in that case is set out in full, both the majority opinion and the dissent:”,

,

which opinions the report then proceeds to quote in full.

. Thereafter, the report recites that the bill’s objective “is

to prevent anyone from obstructing, delaying, or affecting

commerce, or the movement of any article or commodity in commerce

by robbery or extortion.”

. The concluding section of the

navigable waterway wholly within that state. See, e.g., Ex Parte Garnett,

(1891). The required nexus to commerce in the proscriptive section of the 1934 Act (“Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce”) appears as broad as that of the comparable provision in Hobbs Act (“whoever in any way or degree obstructs, delays, or affects commerce, or the movement of any article or commodity in commerce”), the latter essentially treating “movement” as the equivalent of “moving or about to move,” and substituting “commerce” for “trade or commerce.”

19 report commences by stating “The Congress does not need to be

reminded that the Constitution of the United States confers on it

the exclusive and unlimites [sic] power to regulate interstate

commerce,” id. at 10 (emphasis added), that “the members of the

Constitutional Convention agreed that our Federal Government would

be destroyed if barriers should be erected in any way to impede the

free flow of interstate commerce,” and, finally, that “This bill

would outlaw two kinds of criminal interference with interstate

commerce.” Id. Certainly what this report is concerned with is

interference with the movement of articles in interstate commerce,

with interstate commerce itself.17

The debates in the House are wholly consistent with this.18

As previously observed, these debates reflect that the “sole”

purpose and effect of the Hobbs Act was to override the Local 807

case and remove the exemption from the 1934 Act which that case was

thought to create for union members. See note 14, supra, and

accompanying text. Two other aspects of these debates should be

mentioned.

First, the discussion of the evils the pending bill was

17 The brief, half page Senate report does not point in any different direction. Its only relevant statement is the following: “The purpose of this bill is to prevent interference with interstate commerce by robbery or extortion, as defined in the bill. . . . this bill is an amendment of the existing law which was enacted in 1934. The objective of the amendments is to prevent anyone from obstructing, delaying, or affecting commerce, or the movement of any article or commodity in commerce by robbery or extortion.” 18 The Congressional Record does not reflect any debate or discussion in the Senate.

20 designed to eliminate focused almost entirely on the interruption

of commodity shipments actually moving in interstate commerce,

principally agricultural commodities being carried by truck across

state lines.19

19 See, e.g., 89 Cong. Rec. 3203 (1943) (Rep. Walter) (“Farmer after farmer in the eastern part of Pennsylvania has been stopped at the entrance to the Holland Tunnel [into New York], compelled to get off his truck and give to some man $9.40 to deliver that truck to a point where that farmer had been delivering his produce for a great many years”); 91 Cong. Rec. 11902 (1945) (Rep. Walter) (“a processor from . . . Bethlehem [Pa] . . . informed me he was no longer shipping articles to New York by truck but was shipping them by train because he was compelled to kick in . . . $10 for every load of his materials that went into the gentleman’s city”); id. at 11903 (“the practice of members of that union to post themselves at the bridges and at the Holland Tunnel. Here would come a farmer, say, from North Carolina with a load of vegetables. The union members would stop him at the bridge . . .”) (Rep. Gwynne); id. at 11904 (“some of us out in the country know something more about New York . . . some of my [Pa.] neighbors are paying as much as $90 a load to take their produce in and get out alive in their trucks”) (Rep. Gross); id. at 11905 (“The products of the farms were being trucked from New Jersey, Pennsylvania, and Maryland, and hundreds of these trucks were help up when they approached the city limits of New York and especially the Holland Tunnel”) (Rep. Robsion); id. at 11906 (“These crimes are not confined to racketeers in the labor movement. We have many instances where one group of farmers has taken possession unlawfully of the trucks of other farmers and overturned the trucks and destroyed the produce of the others by violence and fear and prevented the trucks moving in interstate commerce”) (Rep. Robsion); id. at 11910 (article from Dawson, Minnesota, paper reciting that Dawson farmer sent to De Moines, Iowa, to pick up machinery to install driers at Dawson elevators was forced by Iowa labor groups to return to Dawson without his load and to join union and pay dues “before they would permit him to leave with his truck”) (Rep. Anderson); id. at 11911 (“Let us illustrate what we are proposing to stop by this measure we are now considering. Here comes a farmer with a load of produce–milk, butter, eggs, vegetables, . . . As they near a State line in going to market to sell that produce a thug they never saw before or a coterie of thugs comes up to the truck and says, ‘Here, stop your truck.’”) (Rep. Jennings); id. at 11917 (“I want the farmers of this Nation protected from hijacking, robbery, and assault when they deliver milk from New Jersey to New York, or produce from South Carolina to New York”) (Rep. Rivers).

21 Other aspects of the debate likewise reflect an emphasis that

the bill applied only to interstate commerce, without any broad

reading of that concept. See, e.g., 89 Cong. Rec. 3210 (1943) (“It

is directed against robbery and extortion when used to obstruct the

free flow of goods in interstate commerce, no matter who the

offenders may be.”) (Rep. Hancock); 91 Cong. Rec. 11843 (1943) (“.

. . it is the duty of Congress to protect its citizens and the

people who use the highways in interstate commerce. Remember, this

proposal applies to interstate commerce only. . . . if interstate

commerce is being interfered with, and if the farmers and truckers,

who take food into New York from the surrounding territory and

States, must submit to the treatment outlined by Chief Justice

Stone, then it seems clear that it is the obligation of the

Congress to furnish national protection in these interstate

operations.” (emphasis added) (Rep. Michener); id. (Rep. Graham.

“Is not this bill limited to interstate commerce alone?” Rep.

Michener. “Certainly.”; emphasis added); id. (Rep. Robsion. “Would

this apply to those conditions in a number of other States where

they meet and overturn milk trucks and do other things like that?”

Rep. Michener. “This bill applies to interstate commerce only.”;

emphasis added); id. at 11912 (“. . . the sole and simple purpose,

the single purpose, of this bill is to do the best we can to

protect interstate commerce and free the highways and streets of

this country of robbers”) (Rep. Hobbs). The following exchange is

similarly relevant:

“Mr. GRANGER. This applies only to interstate commerce, does it not? Mr. SPRINGER. It applies to interstate commerce.

22 Mr. GRANGER. It would not affect a farmer who picked up produce within his own State and delivered it within his own State? That would be intrastate commerce? Mr. SPRINGER. Yes. Mr. GRANGER. What is interstate commerce? Is a farmer who crosses the State line with his own property engaged in interstate commerce? Mr. SPRINGER. There is no doubt but that he is engaged in interstate commerce when he crosses a State line. Mr. ROBSION of Kentucky. A transaction within a State may be interstate commerce if it oppresses and interrupts seriously or in a substantial way goods moving from one State to another? Mr. SPRINGER. The gentleman is entirely correct. That has been defined by judicial decisions.” Id. at 11910.

We are aware of nothing in the legislative history relating or

referring to the aggregation principle or anything comparable to it

as applicable to discrete intrastate actions which individually

have only a minimal, indirect and attenuated effect on interstate

commerce.

This legislative history strongly suggests to us that Congress

in enacting the Hobbs Act was concerned with protecting against

relatively direct obstruction of the actual movement of goods in

interstate commerce, and did not contemplate its application to

robberies of local retail stores such as those here.20 However, the

20 Moreover, so far as we are aware the 1934 Act was never applied to robberies of local retail stores such as those here, and for many years the Hobbs Act apparently was not either. Cf. United States v. Enmons,

(1973) (“It is unlikely that if Congress had indeed wrought such a major expansion of federal criminal jurisdiction in enacting the Hobbs Act, its action would have so long passed unobserved;”also invoking principles of strict construction of criminal statutes and reluctance to assume significant change in relation between federal and state criminal jurisdiction in declining broad construction of Hobbs Act). Further, the “depletion of assets” theory, which is essentially the basis for Hobbs Act prosecutions such as that in this case, seems to have had its origin in United States v. Provenzano,

(3d Cir. 1964), where, in upholding a “depletion of assets” jury charge in a conviction for extorting $30,000 from an interstate trucking company to prevent

23 Supreme Court in Stirone v. United States,

(1960),

stated 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 by extortion, robbery or

physical violence. The Act outlaws such interference ‘in any way

or degree.’

(a) . . .”

. The victim

there was extorted of some $31,000 to avoid cancellation of his

contract to supply from his Pennsylvania plant concrete for the

construction of a Pennsylvania steel mill; the victim depended on

shipments of sand to him from outside of Pennsylvania to make the

concrete, and such shipments would have slackened or stopped had

his contract to supply the steel mill job been cancelled.

The

Court observed that “[i]t was to free commerce from such

destructive burdens that the Hobbs Act was passed,” citing United

States v. Green,

(1956). Stirone, at 272.21 Stirone

labor disruption of its terminal, the court stated: “We can perceive no reason why extortive payments, in substantial amounts, paid as here from the treasury of a company engaged in interstate commerce in order to avoid obstruction of the company’s interstate business should not be deemed to affect commerce and therefore to lie within the proscription of the Hobbs Act. . . . This was the substance of the court’s charge. We hold it to have been a correct one in the light of all the circumstances.” Id. at 693 (emphasis added). In Esperti v. United States,

(5th Cir. 1969), we relied on Provenzano’s depletion of assets theory in sustaining a Hobbs Act conviction for robbery of $2,000 (proceeds of a sale to a Chicago customer) and attempted extortion (to collect a $25,000 alleged debt to a New Yorker), the Florida victim being “Red Ball Merchandising” which “sold close-out merchandise” and whose “interstate sales and purchases amounted to ninety per cent of its business.” 21 In Green the Court held the Hobbs Act applied to a union agent’s threats of violence to force an employer to pay union members for unwanted and superfluous services notwithstanding

24 went on to state that it did not have to decide the “more difficult

question” of whether an adequate interstate commerce nexus would

have been shown by the evidence that the steel mill would produce

steel to be shipped in interstate commerce.

. Later, in

United States v. Culbert,

(1978), the court stated

that the “in any way or degree . . . affected commerce . . . by

robbery or extortion” words of the Hobbs Act “do not lend

themselves to restrictive interpretation,” and proceeded to quote

Stirone’s statement that they manifest “‘a purpose to use all the

constitutional power Congress has to punish interference with

interstate commerce by extortion, robbery or physical violence.’”

.22

that payments to the union or the agent personally were not sought, noting that “The city truckers in the Local 807 case similarly were trying by force to get jobs and pay from the out- of-state truckers by threats and violence. The Hobbs Act was meant to stop just such conduct.”

. The Court went on to observe “[w]e said in the Local 807 case that racketeering affecting interstate commerce was within federal legislative control.”

Green then cites Cleveland v. United States,

(1946) (upholding Mann Act convictions for transporting a “plural wife across state lines” for purposes of cohabitation, stating “[t]he power of Congress over the instrumentalities of interstate commerce is plenary,”

) and Mitchell v. Vollmer & Co.,

(1955) (workers on project improving the Algiers Lock, a unit of the Gulf Intercoastal Waterway, are “engaged in commerce” for purposes of overtime under the FLSA; “the work of improving existing facilities of interstate commerce” is activity in commerce just as “[r]epair of facilities of interstate commerce is activity ‘in commerce’”). 22 Culbert involved a Hobbs Act conviction for attempting to extort “$100,000 from a federally insured bank.”

Cf. Westfall v. United States,

(1927) (defrauding state bank which is a member of the Federal Reserve System is properly a federal offense). A divided Ninth Circuit panel had reversed the conviction because there was no evidence “that the attempted extortion of the bank assets related, in any way, to ‘racketeering.’” United States v. Culbert,

(9th Cir. 1977). The Ninth Circuit reasoned that the Hobbs Act

25 In Jones v. United States,

(2000), the Court

construed the federal arson statute,

(i), as not

extending to arson of a home insured by an out-of-state insurer,

financed by an out-of-state lender, and furnished with gas from

out-of-state, relying in part on the principle of avoiding a

statutory construction under which “‘grave and doubtful

constitutional questions arise,’” and stating “[g]iven the concerns

carried forward the 1934 Act’s antiracketeering purpose and that “[g]iven the applicable de minimus burden on interstate commerce rule . . . a contrary interpretation of the Act would justify usurpation of virtually the entire criminal jurisdiction of the states.”

(the Ninth Circuit also relied on the similar conclusions of the Sixth Circuit in United States v. Yokely,

(6th Cir. 1976)). The Supreme Court reversed the Ninth Circuit, holding that “racketeering” was not an element of an offense under the Hobbs Act, relying on several grounds: first, “[n]othing on the face of the statute suggests a congressional intent to limit its coverage to . . . ‘racketeering’” and the relevant statutory words “do not lend themselves to restrictive interpretation,” id. at 1113; second, the statute carefully defines terms, but makes no “reference to racketeering–much less any definition of the word,” id. at 1114; third, making racketeering an element” might create serious constitutional problems, in view of the absence of any definition of racketeering in the statute,” id.; fourth, the legislative history of the 1934 Act reflects that “Congress simply did not intend to make racketeering a separate, unstated element of an Anti-Racketeering Act violation,” id. at 1115; fifth, the Hobbs Act’s purpose was simply to correct the “perceived deficiency” in the 1934 Act (reflected by the Local 807 case) and “that deficiency had nothing to do with the element of racketeering,” id.; sixth, the rule of lenity did not apply, as it only applies “‘when we are uncertain about the statute’s meaning,’” id. at 1116; and seventh, Congress was well aware that state laws prohibited robbery and extortion. Id. at 1117. In the latter connection, we observe that the legislative history clearly indicates that the statements made regarding state law prohibition of robbery and extortion were directed at answering the criticism that the proposed Hobbs Act was anti labor and infringed the rights of labor (which was the major issue respecting the Act), the answer being that the proposed statute did not prohibit anything not already unlawful; the statements in no way related to the nature of the required interstate commerce nexus.

26 brought to the fore by Lopez, it is appropriate to avoid the

constitutional question that would arise were we to read § 844(i)

to render the ‘traditionally local criminal conduct’ in which

petitioner Jones engaged ‘a matter for federal enforcement.’”

. Accordingly, in Jones, the court read the words

“used in” in section 844(i) as modifying “any activity affecting

interstate . . . commerce,” so that “an owner-occupied residence

not used for any commercial purpose does not qualify as property

‘used in’ commerce or commerce-affecting activity” within the

meaning of section 844(i).

. However, the

Hobbs Act contains no comparable special language upon which an

analogous limiting construction can be focused. It does not at all

differentiate between robberies which “in any way or degree

obstruct[], delay[], or affect[] commerce or the movement of any

article or commodity in commerce.” Thus, driven by the above noted

language in Stirone and Culbert, we conclude that to determine

whether the Hobbs Act applies to these offenses we must examine the

limits of the commerce power as articulated by the Supreme Court in

Lopez and Morrison.

II. Lopez and Morrison applied to this Hobbs Act prosecution

A. Overview; Commerce Power Categories

In Lopez the Court “identified three broad categories of

activity that Congress may regulate under its commerce power,”

namely:

“First, Congress may regulate the use of the channels of

interstate commerce” (citing, inter alia, United States v. Darby,

(1941), sustaining statute prohibiting shipment

27 in interstate commerce of goods produced for interstate commerce by

employees whose wages and hours do not conform to the requirements

of the Fair Labor Standards Act; statute not invalid even if its

motive was to regulate local wages not otherwise subject to

commerce power).

“Second, Congress is empowered to regulate and protect the

instrumentalities of interstate commerce, or persons or things in

interstate commerce, even though the threat may come only from

intrastate activities” (listing as examples “‘destruction of an

aircraft,’” “‘thefts from interstate shipments,’” and Southern R.

Co. v. United States,

(1914), upholding Safety Appliance

Act equipment requirements as applied to cars of interstate carrier

moving on interstate railroad line even though particular cars were

carrying only intrastate traffic).

Third, “Congress’ commerce authority includes the power to

regulate those activities having a substantial relation to

interstate commerce . . . i.e. those activities that substantially

affect interstate commerce. . . .

Within this final category, admittedly, our case law has not

been clear whether an activity must ‘affect’ or ‘substantially

affect’ interstate commerce in order to be within Congress’ power

to regulate it under the Commerce Clause. . . . We conclude,

consistent with the great weight of our case law, that the proper

test requires an analysis of whether the regulated activity

‘substantially affects’ interstate commerce.” United States v.

Lopez,

(1995).

Lopez held unconstitutional, as beyond Congress’s power under

28 the Commerce Clause, the Gun-Free School Zones Act of 1990,

(q) (1988 ed., Supp. V). It “quickly disposed of” the

first and second categories of congressional commerce power, noting

that section 922(q) clearly fell within neither and that “if §

922(q) is to be sustained, it must be under the third category as

a regulation of an activity that substantially affects interstate

commerce.” Id. at 1630. It then went on to hold that the statute

likewise could not be sustained under the third category, rejecting

the Government’s argument that “possession of a firearm in a local

school zone does indeed substantially affect interstate commerce.”

Id. at 1632.

Some five years later in Morrison the Court reconfirmed

Lopez’s Commerce Clause analysis and holding as well as its

articulation and description of the “‘three broad categories of

activity that Congress may regulate under its commerce power.’”

Morrison at 1749. Morrison held unconstitutional, as beyond

Congress’s power under the Commerce Clause,

, the

civil action portion of the Violence Against Women Act of 1994.23

Morrison observes that “[p]etitioners do not contend that these

cases fall within either of the first two categories of Commerce

Clause regulation. They seek to sustain § 13981 as a regulation of

activity that substantially affects interstate commerce. . . . [w]e

agree that this is the proper inquiry.” Id. at 1749. The Court

held that section 13981 did not meet the requirements of the third

Lopez category, stating “petitioners’ reasoning would allow

23 Morrison also held § 13981 beyond Congress’s power under § 5 of the Fourteenth Amendment. Id. at 1755 et seq.

29 Congress to regulate any crime so long as the nationwide,

aggregated impact of that crime has substantial effects on

employment, production, transit, or consumption,” Morrison at 1752-

53, contrary to the constitutionally required “distinction between

what is truly national and what is truly local.” Id. at 1754.24

B. Lopez category one.

This category–“use of the channels of interstate commerce”–is

clearly inapplicable to the present offenses, and the Government

does not contend otherwise.

C. Lopez category two.

The Government contends that these offenses fall within Lopez

category two because, according to the Government, the victim

stores were engaged in interstate commerce, relying on United

States v. Robertson,

(1995), and that therefore no

“substantial” effect on interstate commerce had to be shown.

For several reasons, we reject the Government’s contention

that these are Lopez category two offenses. To begin with, simply

because a business is engaged to any extent in interstate commerce

does not alone suffice to bring regulation of any and all conduct

involving it within category two. That category applies to

“instrumentalities of interstate commerce,” such as “an aircraft”

or a railroad line, and to “persons or things in interstate

commerce,” such as “thefts from interstate shipments.” Plainly, a

24 Unlike the situation in Lopez, Congress in enacting § 13981 specifically invoked its powers under section 8 of Article I of the Constitution, Morrison at 1748, and made numerous findings regarding the adverse impact of gender motivated violence on interstate commerce. Id. at 1752.

30 local retail store is not analogous to any of those.25 The

Government’s argument would vastly expand Lopez’s category two,

extending federal jurisdiction on a per se, categorical basis to a

broad range of matters such as shoplifting of a candy bar from any

business engaged in interstate commerce or children scuffling in

any such business’s parking lot, and would also blur the

distinction between categories two and three. Moreover, we note

the Seventh Circuit’s observation, rejecting the Government’s

attempts to fit a Hobbs Act prosecution into Lopez category two,

that “[t]he Hobbs Act, however, falls within Lopez category three,”

at least where the conviction is sought to be sustained simply on

the theory that the victim was engaged in interstate commerce. See

United States v. Peterson,

(7th Cir. 2001).26

Nor do we agree that the Government’s argument is supported by

Robertson. There the defendant was convicted of “various narcotics

offenses” and of violating

(a) (RICO) “by investing

the proceeds of those unlawful activities in the ‘acquisition of

any interest in, or the establishment or operation of, any

enterprise which is engaged in, or the activities of which affect,

25 We respectfully disagree with the apparently contrary conclusions of the divided panel in United States v. Harrington,

(D.C. Cir. 1997), and the seemingly similar suggestion in United States v. Farmer,

(8th Cir. 1966). 26 So far as concerns application of the Hobbs Act to violent interference with shipments actually moving or about to move in interstate commerce (reflected in its “or the movement of any article or commodity in commerce” prong, comparable to the 1934 Act’s “or any article or commodity moving or about to move in trade or commerce” language)–which was plainly at least the Hobbs Act’s primary purpose–Lopez category two would doubtless be the appropriate category. Obviously, that is not the case here.

31 interstate or foreign commerce.’” Id. at 1732. The Ninth Circuit,

in a pre-Lopez decision, affirmed the narcotics convictions but

reversed the RICO conviction, holding that the RICO enterprise–an

Alaskan gold mine–was not shown to have “had more than an

incidental effect on interstate commerce” and hence did not meet

section 1962(a)’s “the activities of which affect, interstate . .

. commerce” requirement (without addressing the “engaged in . . .

interstate commerce” prong of section 1962(a)). United States v.

Robertson,

(9th Cir. 1994). The Ninth Circuit did

not even mention, let alone discuss, the Commerce Clause or the

limits of Congress’s power thereunder. The Supreme Court, shortly

after Lopez, reversed the Ninth Circuit’s reversal of the RICO

count, holding there was sufficient evidence that the gold mine was

“engaged in . . . interstate . . . commerce” for purposes of

section 1962(a). Robertson,

. It stated in this

connection:

“. . . Robertson, who resided in Arizona, made a cash payment of $125,000 for placer gold mining claims near Fairbanks. He paid approximately $100,000 (in cash) for mining equipment and supplies, some of which were purchased in Los Angeles and transported to Alaska for use in the mine. Robertson also hired and paid the expenses for seven out-of-state employees to travel to Alaska to work in the mine. . . . He again hired a number of employees from outside Alaska to work in the mine.

. . .

Furthermore, Robertson, the mine’s sole proprietor, took $30,000 worth of gold, or 15% of the mine’s total output, with him out of the State.

Whether or not these activities met (and whether or not, to bring the gold mine within the ‘affecting commerce’ provision of RICO, they would have to meet) the requirement of substantially affecting interstate commerce, they assuredly brought the gold mine within §

32 1962(a)’s alternative criterion of ‘any enterprise . . . engaged in . . . interstate or foreign commerce.’” Id.

Robertson is a statutory construction case and does not purport to

make any constitutional holding or to address (or recognize as

being potentially before it) any constitutional issue, and it does

not mention Lopez or discuss its three categories of Commerce

Clause power.27

Finally, and in any event, we reject the underlying premise of

the Government’s argument in this connection, namely that the

victim stores here were “engaged in” interstate commerce as the

Robertson Court understood and intended that phrase. Robertson’s

principal illustrations of what is, and what is not, “engaged in

[interstate] commerce” are as follows:

“the Government proved that some . . . [equipment and supplies] were purchased in California and transported to Alaska for use in the mine’s operations. Cf. United States v. American Building Maintenance Industries,

,

,

(1975) (allegation that company had made local purchases of equipment and supplies that were merely manufactured out of state was insufficient to show that company was “engaged in commerce” within the meaning of § 7 of the Clayton Act).

. . .

As we said in American Building Maintenance, a corporation is generally ‘engaged “in commerce”’ when it is itself ‘directly engaged in the production, distribution, or acquisition of goods and services in interstate commerce.’ Id., at 283,

.”

27 Moreover, it is not clearly apparent that Congress’s power to criminalize an offender’s use of the proceeds of his federal narcotics offenses to invest in, establish or operate an enterprise is necessarily dependent on the enterprise being otherwise subject to Congress’ power under the Commerce Clause. See, e.g., United States v. Owens,

(5th Cir. 1993).

33 In American Building Maintenance the Court held summary judgment

was properly granted that the Benton janitorial service companies,

located in California, were not “engaged in [interstate] commerce,”

for purposes of section 7 of the Clayton Act, stating:

“[T]he Benton companies performed a substantial portion [80% to 90%] of their janitorial services for enterprises which were themselves clearly engaged in selling products in interstate and international markets and in providing interstate communication facilities. But simply supplying localized services [in California] to a corporation engaged in interstate commerce does not satisfy the “in commerce” requirement of § 7.

To be engaged “in commerce” within the meaning of § 7, a corporation must itself be directly engaged in the production, distribution, or acquisition of goods or services in interstate commerce.

. . .

Similarly, although the Benton companies used janitorial equipment and supplies manufactured in large part outside of California, they did not purchase them directly from suppliers located in other States. [citation] Rather, those products were purchased in intrastate transactions from local distributors. . . . By the time the Benton companies purchased their janitorial supplies, the flow of commerce had ceased. See Schechter Corp. v. United States, 295 U.S., at 542-543, 55 S.Ct. at 848.” Id., 2158-59 (emphasis added; footnote omitted).

Here there is no evidence that any of these local retail stores

made any sales other than at the store premises in Fort Worth or

any sales to any person or entity engaged in interstate commerce,

or had any operations, facilities or employees outside of Fort

Worth; nor is there any evidence that any of them acquired any of

their merchandise inventory other than from in-state wholesalers.28

28 It is true that Quickway Shopping (one of which stores was robbed of $50) sold some money orders which it purchased from a company in Minnesota. But given that there is no evidence that amount of these was other than insignificant–either absolutely or as fraction of the store’s total sales–we hold that this does not

34 If the Benton companies were not “engaged in” interstate commerce,

it necessarily follows, a fortiori, that these local retailers were

not.

D. Lopez category three.

We accordingly conclude that the issue of whether the Hobbs

Act is properly applied to these robberies turns on whether such

application meets the test of Lopez category three, as to which

“the proper test requires an analysis of whether the regulated

activity ‘substantially affects’ interstate commerce.” Id. at

1630.

The evidence does not reflect any particular, concrete effect

on interstate commerce that in fact actually resulted from any of

the four robberies. But the evidence does support the conclusions

that the victim stores each regularly used their funds to, among

other things, purchase from local wholesalers inventory which

included (but was not shown to be limited to) items manufactured

out-of-state, and that the robberies reduced, by the amounts taken

($50, $100, $145, $1,500-2,000), the funds the stores would, but

for the robbery, otherwise thereafter have had available for use in

(or withdrawal from) their respective businesses, including (but

not limited to) use for inventory purchasing. The evidence also

shows that any reduction in a retailer’s purchases from its

wholesaler would reduce the funds the wholesaler would otherwise

constitute Quickway Shopping as being engaged in interstate commerce, certainly not for purposes of bringing the robbery of it within Lopez category two. Cf. American Building Maintenance at 2153 and notes 3 and 4 (referring to “negligible” use of interstate facilities and “insignificant” interstate purchases).

35 thereafter have had available for use in (or withdrawal from) its

business, including (but not limited to) use for purchase of out-

of-state merchandise. Cf. United States v. Atcheson,

(9th Cir. 1996) (“To establish a de minimis effect on

interstate commerce, the Government need not show that a

defendant’s acts actually affected interstate commerce . . .

Rather, the jurisdictional requirement is satisfied ‘by proof of a

probable or potential impact’”). Assuming that all this suffices

to show that each individual robbery did probably or potentially

have some minimal, attenuated and indirect affect on interstate

commerce, it is clear that none individually had what could fairly

be described as a “substantial” affect (actual, probable or

potential).

The Government in this connection relies on the “aggregation”

principle under which in determining whether the affect on

interstate commerce is “substantial” the focus is not upon any one

individual instance of the activity covered by the regulation but

is rather upon whether the aggregate of all covered instances as a

whole substantially affects interstate commerce. The validity of

that general principle has long been clearly established, and is

recognized in both Lopez and Morrison. At the same time, however,

each of those decisions holds that the principle is not of

universal or unlimited application, and refused to apply it to

sustain the statutes there under consideration. Thus, in Morrison

the Court recognized that the aggregate of instances of gender-

motive violence within the scope of section 13981 did ultimately

have a large effect on interstate commerce, id. at 1752, but

36 nevertheless held that the aggregation principle could not be

applied, stating:

“We accordingly reject the argument that Congress may regulate non-economic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. . . . The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States.” Id. at 1754.

The central question in this case, then, is whether this Hobbs

Act prosecution can be sustained under the aggregation theory. We

now turn to that question.

E. Hobbs Act jurisdictional element.

Because the Hobbs Act has an interstate commerce related

jurisdictional element and the statutes at issue in Lopez and

Morrison contained no comparable provision, as the Supreme Court’s

opinions in those cases emphasized, some of our sister circuits

have relied on this distinction (among other considerations) in

holding that Lopez and Morrison are either largely inapplicable to

Hobbs Act cases, or do not require that a substantial effect on

interstate commerce be shown in Hobbs Act prosecutions falling

under Lopez category three.29 We respectfully disagree. Such an

approach would in effect either create a fourth category of

commerce clause power, contrary to the plainly comprehensive three

category approach taken in Lopez and Morrison, or would do away

with the “substantially affect” requirement which those opinions so

29 See United States v. Gray,

, 1274 (11th Cir. 2001); United States v. Malone,

(10th Cir. 2000). See also United States v. Harrington,

(D.C. Cir. 1997).

37 clearly state is constitutionally mandated in category three cases.

Congress lacks the power to provide for a lesser relation to

interstate commerce in that category of case simply by including a

jurisdictional provision. Otherwise the principles enunciated in

Lopez and Morrison would be essentially meaningless. We agree with

the Seventh Circuit’s observations in this respect in United States

v. Wilson,

(7th Cir. 1995).30

This is not to say that the Hobbs Act jurisdictional element

serves no function. It allows a determination in each case, based

on its particular facts and characteristics, whether in that case

application of the statute is consistent with Congress’s Commerce

Clause power. Because of that jurisdictional element the statute

is not properly subject to being facially invalidated, which was

essentially the result in Lopez and Morrison where the statutes

involved lacked any jurisdictional element.

30 The Wilson court stated: “In discussing the lack of a jurisdictional element in Lopez, the court simply did not state or imply that all criminal statutes must have such an element, or that all statutes with such an element would be constitutional, or that any statute without such an element is per se unconstitutional.”

(emphasis added). We quoted that sentence from Wilson with approval in United States v. Bird,

(5th Cir. 1997). Moreover, several decisions have indicated that Lopez and/or Morrison preclude most Hobbs Act prosecutions for robberies of individuals. See United States v. Lynch,

(9th Cir. 2002); United States v. Wang,

(6th Cir. 2000); United States v. Collins,

(5th Cir. 1994) (applying this Court’s decision in Lopez,

(5th Cir. 1993), later affirmed by the Supreme Court). See also United States v. Quigley,

(8th Cir. 1995) (relying on Collins). Obviously, these decisions proceed on the assumption that Lopez and/or Morrison speak to Hobbs Act prosecutions in Lopez category three cases notwithstanding the presence of a jurisdictional element in the Hobbs Act and the absence of such an element in the statutes involved in Lopez and Morrison.

38 F. Regulation of commercial or economic activity.

Some of our sister circuits have held that the refusal of

Lopez and Morrison to apply the aggregation principle to sustain

the statutes there under consideration is wholly inapplicable to

the Hobbs Act because those statutes proscribed offenses which were

not commercial or economic while robbery (or extortion, but we here

deal only with robbery), which the Hobbs Act proscribes, is a

commercial or economic activity as it always involves taking

“personal property” from another person. § 1951(b)(1). See United

States v. Gray,

, 1274 (11th Cir. 2001) (“Unlike the

statute at issue in Morrison, the Hobbs Act plainly and undeniably

regulates economic activity”); United States v. Malone,

(10th Cir. 2000) (“Unlike the statutes at issue in

Morrison and Lopez, the Hobbs Act regulates economic activity”).

But see United States v. Peterson,

(7th Cir.

2001) (“. . . the Hobbs Act does not suggest that robbery is an

economic activity”).

We respectfully take a somewhat different view of the matter.

The approach of these cases seems to be that whenever the

regulated activity is “economic,” then, for purposes of Lopez

category three cases, there are never any limits whatever to use of

the aggregation theory and it may always be employed to satisfy

(and as practical matter will always satisfy) the “substantially”

affects requirement of Lopez category three.31 While this would

31 Where only Lopez categories one or two are involved, a showing of “substantially affects” is not required, and so whether aggregation is available is generally irrelevant.

39 seem, at least as a practical matter, to limit Lopez category three

to cases where the regulated activity was non-economic and to

obliterate any distinction in “economic” cases between the Lopez

categories, we need not and do not reach that issue.

Assuming, arguendo, that there is a class of category three

cases as to which there are no restraints whatever on aggregation,

we conclude that such a class would exclude instances where “the

regulated activity” is not properly described as “commercial” or

“economic” in the same general sense as “commercial.”32

Lopez and Morrison each refer to both “commercial” and

“economic” activities and appear to use the terms synonymously.

Thus Lopez states that section 922(q) does not “regulate[] a

commercial activity” id. at 1626 (quoted in Morrison id. 1750), and

that

“Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce,” id. at 1631 (emphasis added),

and that

32 If “the regulated activity” is not “commercial” (or the regulation does not govern the conduct of a wholly or partially commercial enterprise or endeavor), that means merely that, in Lopez category three cases where there must be a “substantially affects” showing, then, whether or not aggregation is available depends on the considerations elaborated on in G below and in Judge Higginbotham’s Hickman dissent. We need not and do not address whether such considerations (or similar ones) govern or limit the availability of aggregation for such purpose where the regulated intrastate activity is “commercial” (or the regulation does govern the conduct of a wholly or partially commercial enterprise or endeavor).

40 “We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. . . . Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty.” Id. at 1633 (emphasis added).

The last sentence above quoted is likewise quoted in Morrison. Id.

at 1750. Justice Kennedy, in his concurring opinion in Lopez

(joined in by Justice O’Connor and joining in Chief Justice

Rehnquist’s opinion for the Court) states:

“Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.” Id. at 1638 (emphasis added).

The above passage is likewise quoted with approval in Morrison.

Id. at 1750.

And, since what we are concerned with is the power of Congress

under the Commerce Clause–the power “[t]o regulate Commerce with

foreign Nations, and among the several States, and with the Indian

Tribes”–“commercial” rather than simply any broadly understood

concept of “economic” seems to be the appropriate concept.

Robbery is the “activity” regulated by the Hobbs Act, and we

conclude that for these purposes robbery cannot be considered a

commercial activity. Robbery does have an economic effect. But

so, too, do not only all thefts of any kind from any victim but

also, for example, virtually all criminal homicides. Moreover, the

here relevant portion of the Hobbs Act, apart from simply

specifying that the accused have committed a “robbery” which “in

41 any way or degree . . . affects commerce” (although not requiring

any intention to have or foreknowledge of such an effect), says

nothing whatever about the identity, status or activity (whether as

being engaged in any sort of commercial activity or otherwise) of

either the victim or the robber, and does not purport to in any way

regulate the conduct of any commercial activity. What is relevant

in this connection under Lopez and Morrison is not the effects of

the conduct which the statute proscribes but whether the statute

may fairly be said to regulate commercial activity. The here

relevant portion of the Hobbs Act cannot.

We recognize that some decisions have taken the view that “the

Hobbs Act regulates the interference with economic activity by

robbery,”

, and for that reason alone an aggregation

analysis is always per se appropriate and all that needs be shown

is a depletion of assets.

(“what is aggregated is the

depletion of the interstate entity’s assets by robbery”). See also

Gray at 1274 (“Economic activity, or more precisely the infliction

of economic harm, is at the heart of the Hobbs Act’s prohibition on

robbery”). However, as noted, the here relevant portion of the

Hobbs Act says nothing about the victim being an “interstate

entity.”33 And, we are aware of no Commerce Clause case in which

the Supreme Court has applied the aggregation principle to a class

of activities where contours of the class are not reasonably

inferable from the language of the challenged statute or

regulation. Moreover, the approach of allowing aggregation simply

33 Nor may the victims here be properly so characterized. See part IIC, supra.

42 because of “the infliction of economic harm” (or the “depletion of

. . . assets”) equally supports making a federal offense of any

crime (say any criminal homicide or assault producing serious

bodily injury) so long as it causes economic harm or depletes

economic resources and hence in some way or degree affects

interstate commerce–in the same sense as does a fifty dollar

robbery or a fifty cent shoplifting from a victim (whether an

individual or a local retailer) who purchases items made in another

state–and so long as the aggregate effect of all such crimes on

interstate commerce is substantial. Yet, Morrison rejects the

notion that Congress may regulate a crime simply because “the

nationwide, aggregated impact of that crime has substantial effects

on employment, production, transit, or consumption.” Id. at 1752-

53. Lopez and Morrison reflect that such a limitation on the

aggregation principle is necessary because “[t]he Constitution

requires a distinction between what is truly national and what is

truly local,” and “[t]he regulation and punishment of intrastate

violence that is not directed at the instrumentalities, channels,

or goods involved in interstate commerce has always been the

province of the States.” Id. at 1754. Certainly, none of the

instant robberies can be characterized as “directed at the

instrumentalities, channels, or goods involved in interstate

commerce.”34 Further, the several decisions refusing to find the

34 And, the here relevant portion of the Hobbs Act, denouncing any “robbery” which “in any way or degree . . . affects commerce” is in no way limited to robberies “directed at the instrumentalities, channels, or goods involved in interstate commerce.”

43 Hobbs Act applicable to most robberies of individuals under

theories of deletion of assets and aggregation of the effect on

interstate commerce of all such robberies likewise support our view

in this respect.35 It has been said that this distinction is

justified because “in general . . . businesses purchase on a larger

scale than individuals.” United States v. Boulahanis,

(7th Cir. 1982). However, this justification is not

persuasive because the here relevant portion of the Hobbs Act makes

no distinction between the robberies it proscribes on the basis of

whether the victim is a business (or is engaged in a commercial

activity), and because virtually every consumer regularly expends

considerable funds on the purchase of items originating out-of-

state and there are many more consumers than businesses. Indeed,

consumer spending is generally estimated to amount to two-thirds of

the national economy. See also United States v. Thomas,

(7th Cir. 1998) (“since the aggregate effect of such

35 See United States v. Lynch,

(9th Cir. 2002) (“. . . robbery does have an economic component; however, that economic component must rise above the simple, though forced, economic transaction between two individuals. Otherwise, almost every violent property crime would be transformed into a federal offense, contrary to the teachings of Morrison”); United States v. Wang,

(6th Cir. 2000) (restaurant owner robber of $4,200 by former employee; of $4,200 taken $1,200 had been withdrawn that day from restaurant with intent to deposit it in the restaurant bank account the next day; restaurant purchased meat from out-of-state suppliers; not covered by Hobbs Act, citing Morrison); United States v. Quigley,

(8th Cir. 1995); United States v. Collins,

(5th Cir. 1994) (robbery of Mercedes-Benz automobile, cell phone, cash, jewelry and clothes); United States v. Buffey,

(4th Cir. 1990) ($20,000 extortion); United States v. Matson,

(7th Cir. 1982) ($3,000 extortion); United States v. Merolla,

(2d Cir. 1975) (extortion of contractor by owner).

44 robberies [of individuals] on commerce is non-trivial, those cases

are in tension with the ones . . . which insist on aggregation”).

Moreover, as previously noted, we are aware of no Supreme Court

Commerce Clause decision applying the aggregation principle to a

class of activities the contours of which are not reasonably

inferable from the language of the challenged statute or

regulation. Thus, the aggregation principle if applied to Hobbs

Act prosecutions, would apply all robberies (of any personal

property, from any victim, by any robber) which “in any way or

degree . . . affect[s] commerce.”

We turn now to the appropriate standards to determine whether

in such a case the applicable Lopez category three “substantially

affects” requirement can be met by aggregating the effects of all

such robberies.

G. Aggregation and the Hobbs Act

As previously observed, the aggregation principle has

relevance only in Lopez category three cases, cases that are

concerned only with regulation of intrastate conduct. As to such

regulation, Lopez’s explicit requirement that the regulated

intrastate conduct not merely affect interstate commerce but that

it do so “substantially” is obviously designed to insure that

congressional power under the Commerce Clause is not wholly without

meaningful limits and does not obliterate the “distinction between

what is truly national and what is truly local,” id. at 1634, so as

to transform to a unitary system of government the constitutionally

established federal system under which, among other things, there

is “no better example of the police power, which the Founders

45 denied the National Government and reposed in the States, than the

suppression of violent crime and vindication of its victims.”

Morrison at 1754. Yet if there are essentially no limits on use of

the aggregation principle to satisfy the “substantially”

requirement, then that requirement becomes virtually meaningless

and wholly incapable of performing the function it is designed to

serve, for the greater the breadth and generality of the regulatory

net which Congress casts over intrastate conduct the more

“substantial” will be the aggregated affect on interstate commerce

of the total of all the intrastate conduct so regulated. Moreover,

if the aggregation principle is applicable “the courts have no

power ‘to excise, as trivial, individual instances’ of the class”

being aggregated. Perez v. United States,

(1971) (quoting Maryland v. Wirtz,

(1968)).

Although the Supreme Court has on several occasions sustained

federal statutes on the aggregation theory, it has never applied or

even referred to it in a Hobbs Act case (nor is anything in the

Hobbs Act legislative history supportive of such an approach). Nor

since Lopez and Morrison has the Court made any general analysis or

explanation of the contours of the doctrine.

In United States v. Robinson,

(5th Cir. 1997),

we rejected an as-applied challenge to a Hobbs Act conviction which

urged that under Lopez the evidence was insufficient because it

showed only that the charged robberies had some, but not a

substantial, effect on interstate commerce.36 We rejected that

36 Robinson involved one conspiracy and three substantive counts involving retail store robberies. The victim “stores

46 contention, relying on the “aggregation principle” as reflected by

cases such as Wickard v. Filburn,

(1942), Katzenbach v.

McClung,

(1964) and Heart of Atlanta Motel v. United

States,

(1964), held that “Lopez did not undermine

this principle” and relied in that connection on the Tenth

Circuit’s decision in United States v. Bolton,

(1995).

Robinson, 1214-15.

Subsequently, in United States v. Hickman,

(5th

Cir. 1998) (panel opinion),

(5th Cir. 1999) (en banc),

we again addressed the requisite interstate commerce connection

respecting Hobbs Act convictions for several robberies of retail

establishments. The Hickman panel affirmed the convictions,

considering itself bound by Robinson, but expressed “serious

questions” as to the propriety of applying the aggregation

principle in that setting.37 The en banc court noted that “[b]y

provided check-cashing services . . . the stores cashed out-of- state checks, payroll checks, and government benefit checks . . . several of the stores sold products that had been shipped to Texas from other states. The victims . . . suffered substantial losses as a result of the robberies: one store was forced to close permanently for lack of capital, and the others were unable to cash checks for a finite period of time.” Id. at 1208. “[T]hese robberies caused business losses of approximately $5,000 each” to two different victims and “$60,000" to a third. Id. at 1209. 37 The panel opinion states: “A review of Supreme Court authority raises serious questions regarding whether aggregation principles can be used as the commerce clause jurisdictional hook under the Hobbs Act when the underlying crimes arise from a purely local crime spree. . . . These local robberies are not the sort of economic activity that can legitimately be viewed in the aggregate for traditional economic impact analysis purposes. The conceptual difference between the consumption of home- grown wheat that might otherwise have been sold on the

47 means of an equally divided en banc court, we affirm the counts of

conviction,” but no opinion for affirmance was issued. Hickman,

. Half the judges comprising the en banc court joined

in a dissenting opinion by Judge Higginbotham urging reversal on

the basis that, particularly in light of Lopez, the aggregation

principle was not properly applicable to those Hobbs Act

prosecutions.

Given the intervening decision in Morrison we revisit that

issue and now express our essential agreement with the conclusions

and underlying reasoning of Judge Higginbotham’s Hickman opinion.38

As stated in that opinion:

“We would hold that substantial effects upon interstate commerce may not be achieved by aggregating diverse, separate individual instances of intrastate activity where there is no rational basis for finding sufficient connections among them. Of course, Congress may protect, enhance, or restrict some particular interstate economic market, such as those in wheat, credit, minority travel,

open market, see Wickard v. Filburn,

,

,

(1942), or denying service in a restaurant to a particular race of interstate travelers, see Katzenbach v. McClung,

,

,

(1964), and a string of local robberies is apparent. We, however, are bound by circuit law. See United States v. Robinson,

. Robinson constitutes clear circuit precedent for the application of aggregation to this local non- economic activity, thereby setting the commerce clause jurisdictional hook.” Id. at 456. 38 We recognize decisions of our sister circuits that continue after Morrison to apply an aggregation analysis to Hobbs Act prosecutions. See, e.g., United States v. Elias,

(2d Cir. 2002); United States v. Gray,

, 1273-74 (11th Cir. 2001); United States v. Peterson,

(7th Cir. 2001); United States v. Malone,

(10th Cir. 2000). But see United States v. Lynch,

(9th Cir. 2002); United States v. Wang,

(6th Cir. 2000). For the reasons stated herein, we respectfully view the matter differently.

48 abortion service, illegal drugs, and the like, and Congress may regulate intrastate activity as part of a broader scheme. The Hobbs Act is not a regulation of any relevant interstate economic market, nor are there other rational connections among nationwide robberies that would entitle Congress to make federal crimes of them all. The Hobbs Act does not target any class of product, process, or market, or indeed even commercial victims. It facially applies to any robbery, or its attempt, of any person or entity. . . . The Hobbs Act offers no ‘regulatory scheme’ which ‘could be undercut’ if individual robberies were not aggregated. . . . Thus, putting aside robberies as part of an effort to regulate particular interstate markets such as guns, drugs, or organized crime syndicates, a local robbery spree can be within Congress’s power only if it by itself has a substantial effect.” Id. at 231. . . . “Where Congress has sought to regulate–protect, enhance, or restrict–some particular market such as wheat, credit, minority travel, or abortion service, it has pointed the way to a rational aggregation test. It has identified those things that affect that market, things which if not all subject to the regulation would erode the effort. Intrastate production and sales can be aggregated, because the prices of goods and services are determined in interstate markets. If, for example, the federal government enacts a price control to ensure sufficient income for producers, it will be thwarted if consumers switch to buying goods in intrastate commerce or produce the goods themselves. Because the instances of economic activity are intimately connected and in the aggregate substantially affect commerce, Congress can regulate such activity.” Id. at 233.

We also observe that not only does the Hobbs Act “not target

any class of product, process or market or even commercial

victims,” but it has also been held to apply to robbery (or

extortion) which adversely affects illegal commerce39 as well as to

39 See, e.g., United States v. Peterson,

(7th Cir. 2001) (“the Hobbs Act does not require that the commerce affected be legal commerce”); United States v. Jones,

(2d cir. 1994); United States v. Ambrose,

(7th Cir. 1984) (Hobbs Act properly “read to punish extortion that promotes illegal commerce as well as extortion that retards legal commerce”). See also, e.g., United States v. Bailey,

(7th Cir. 2000) (“robbery of cocaine

49 that which beneficially affects commerce.40

The analysis in the Hickman en banc dissent fully comports

with the following crucial passage in Lopez explaining the Court’s

refusal to sustain

(q) under an aggregation theory,

viz:

“Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.”

(emphasis added).

Where the Supreme Court has applied aggregation to uphold

federal regulation of intrastate conduct against constitutional

challenge under the Commerce Clause, there has always been a

rational basis to find sufficient interrelationship or commonality

of effect on interstate commerce among the discrete intrastate

instances regulated and between them and a scheme of regulation

(protection, enhancement or restriction) of some particular

interstate market or activity such that the regulation of those

intrastate activities can rationally be viewed as necessary to the

effectiveness of or a meaningfully supporting part of the scheme of

dealers generally has an effect on commerce” for purposes of Hobbs Act). 40 See, e.g., United States v. Diaz,

(11th Cir. 2001) (under Hobbs Act “the effect on interstate commerce is not limited to only adverse effects”); United States v. Kaplan,

(11th Cir. 1999) (Hobbs Act “intended to protect commerce from any and all forms of effect, whether they are . . . beneficial or adverse”); United States v. Mattson,

(7th Cir. 1982) (“Even a beneficial effect on interstate commerce, e.g., facilitating the flow of building materials across state lines, is within the prohibition of the statute”).

50 regulation of that particular interstate activity or market.

We now turn to the most frequently cited of these cases.

Wickard v. Filburn,

(1942), involved a farmer who

“owned and operated a small farm . . . maintaining a herd of dairy

cattle, selling milk, raising poultry, and selling poultry and

eggs” and raising “a small acreage of winter wheat.”

.

He sold part of the wheat, fed part to his poultry and cattle, some

of which were sold, used some for seeding and some in making flour

for home consumption. In the year in question his wheat “available

for marketing” quota under the Agricultural Adjustment Act of 1938

as amended was 11.1 acres but he harvested and threshed 23 acres

and was penalized 49 cents a bushel on the 239 bushels harvested

and threshed from the 11.9 acres of excess acreage.

.41 The Court assumed that this excess was consumed on the farm,

but nevertheless, and despite the comparatively minimal quantity,

sustained the penalty as against Commerce Clause challenge,

stating, inter alia,

“The effect of consumption of home-grown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. . . . One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. 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. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising

41 Wheat not threshed was not considered “available for marketing” and could without penalty be cut and cured or fed as hay or reaped and fed with the head and straw together.

.

51 prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. . . . Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices. . . . Control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply.”

(emphasis added).

We note that Lopez describes Wickard as “perhaps the most far

reaching example of Commerce Clause authority over intrastate

commerce.” Lopez at 1630. Clearly, however, the factors that

brought Wickard under the aggregation principle are absent in the

present character of prosecution. In Wickard market forces related

the effect of the individual instances of regulated intrastate

conduct to each other and to the scheme of regulation of the

particular interstate market, namely sustaining the price at which

wheat was sold in interstate commerce; moreover, the diverse

instances of regulated intrastate conduct in Wickard each had a

similar effect on the regulatory scheme, that is each had the same

tendency to affect the interstate price of wheat in the same way.

Likewise, in United States v. Wrightwood Dairy Co.,

(1942), the Court upheld a regulation prescribing the minimum

price to be paid producers for all milk marketed in the Chicago

area, approximately forty percent of which came from out-of-state,

rejecting the contention that the regulations could not under the

Commerce Clause be applied to a local milk marketer all of whose

business was entirely intrastate. The Court explained:

52 “. . . the marketing of intrastate milk which competes with that shipped interstate would tend seriously to break down price regulation of the latter. . . . We conclude that the national power to regulate the price of milk moving interstate into the Chicago, Illinois, marketing area, extends to such control over intrastate transactions there as is necessary and appropriate to make the regulation of the interstate commerce effective; and that it includes authority to make like regulations for the marketing of intrastate milk whose sale and competition with the interstate milk affects its price structure so as in turn to affect adversely the Congressional regulation.”

.

The decisions in Heart of Atlanta Motel v. United States,

(1964), and Katzenbach v. McClung,

(1964),

sustained under the Commerce Clause the public accommodation

provisions of Title II of the Civil Rights Act of 1964 applicable

to hotels and restaurants respectively. In doing so the Court in

each case pointed to the overwhelming evidence before Congress in

its consideration of the legislation that racial discrimination by

hotels and restaurants impeded minority interstate travel. In

Heart of Atlanta the Court noted that the Committee Reports and

testimony before Congress reflected that:

“[O]ur people have become increasingly mobile with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight, . . . and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook . . . that this uncertainty [of the Negro traveler finding lodging] stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community. This was the conclusion not only of the Under Secretary of Commerce but also of the Administrator of the Federal Aviation Agency who wrote the Chairman of the Senate Commerce Committee that it was his ‘belief that air commerce is adversely affected by the denial to a

53 substantial segment of the traveling public of adequate and desegregated public accommodations.’ . . . We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel.” Id. at 355 (emphasis added).42

The Court went on to hold that interstate travel was interstate

commerce under the Commerce Clause and that accordingly Congress’s

commerce power embraced the power to remove the impediment to

interstate travel posed by race based refusal to serve hotel

customers. Id. at 355-360. McClung similarly placed great

emphasis on the same consideration, id. at 381-82,43 and goes on to

hold that the fact that one restaurant’s activities may have but a

de minimus effect on interstate commerce was not significant,

relying on Wickard. McClung at 382.

42 The portion of the above quotation up through the reference to “a special guidebook” is quoted in Perez v. United States,

(1971), as explanatory of the decision in Heart of Atlanta. 43 McClung states:

“. . . there was an impressive array of testimony that discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes. This resulted, it was said, because discriminatory practices prevent Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants and under most unsatisfactory and often unpleasant conditions. This obviously discourages travel and obstructs interstate commerce for one can hardly travel without eating. Likewise, it was said, that discrimination deterred professional, as well as skilled, people from moving into areas where such practices occurred and thereby caused industry to be reluctant to establish there.” Id. at 381-82 (emphasis added).

This passage from McClung is likewise quoted in full in Perez v. United States,

(1971), as explanatory of the decision in McClung.

54 In Heart of Atlanta and McClung the discrete local activities

regulated–the race based refusal of diverse hotels and restaurants

to serve minority customers–each had a similar effect on a

particular interstate market or activity, namely impeding minority

interstate travel, an obstruction to interstate commerce which the

statute was designed to remove.

Maryland v. Wirtz,

(1968),44 rejected Commerce

Clause challenges to the 1961 amendments to the Fair Labor

Standards Act adopting the “enterprise concept” extending coverage

to include not only employees personally engaged in interstate

commerce or in the production of goods for interstate commerce, but

also all those employed by “an enterprise” engaged in interstate

commerce or in the production of goods for interstate commerce.

The Court noted that in the original act Congress had found that

“substandard wages and excessive hours, when imposed on employees

of a company shipping goods into other States, gave the exporting

company an advantage over companies in the importing States” and

that this had the “undesirable effect of driving down labor

conditions in the importing States.”

.45 The Court went

on to state:

44 Wirtz was overruled on other grounds in National League of Cities v. Usery,

(1975), which was in turn overruled in Garcia v. San Antonio Metropolitan Transit Authority,

(1985). 45 See also

n.12 quoting congressional finding that substandard labor conditions “in industries engaged in commerce or in the production of goods for commerce . . . causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States.”

55 “When a company does an interstate business, its competition with companies elsewhere is affected by all its significant labor costs, not merely by the wages and hours of those employees who have physical contact with the goods in question.” Id. at 2021.

Wirtz also noted that Congress had found that substandard labor

conditions tended to labor disputes and strikes, “that when such

strife disrupted businesses involved in interstate commerce, the

flow of goods in commerce was itself affected,” id. at 2021, and

that this applied equally to substandard labor conditions of all

employees of an enterprise engaged in commerce, not merely those

personally so engaged. Id. at 2021-22. Wirtz goes on to state

that under the Commerce Clause courts could not “excise, as

trivial, individual instances falling within a rationally defined

class of activities,” citing Wickard.

.

The intrastate activities regulated in Wirtz (wages of

employees of an enterprise engaged in interstate commerce or in the

production of goods for or acquisition of goods directly in

interstate commerce even where the employee personally was not so

engaged) were by market forces interrelated and related to

interstate commerce and to the regulated interstate market in

wages. Moreover, each of those intrastate activities had the same

character of effect on the statutory scheme of regulation–as each

proscribed substandard wage tended, by market forces, to lower

wages generally and to foster industrial discord, contrary to and

tending to undermine the statutory scheme for maintaining wages of

employees of enterprises engaged in interstate commerce (or the

production of goods for or acquisition of goods directly in

interstate commerce) and avoiding the disruption of interstate

56 commerce incident to industrial strife resulting from substandard

wages.

In Perez v. United States,

(1971), the Court

sustained Perez’s conviction for making an extortionate extension

of credit contrary to the provisions of Title II of the Consumer

Credit Protection Act of 1968, rejecting the contention that the

statute was unconstitutional as not requiring proof that the

particular transaction affected interstate commerce. The Court

observed that “[p]etitioner is one of the species commonly known as

‘loan sharks’ which Congress found are in large part under the

control of ‘organized crime,’” citing congressional findings under

Title II that “[o]rganized crime is interstate and international in

character,” that “[a] substantial part of the income of organized

crime is generated by extortionate credit transactions,” and that

“[e]xtortionate credit transactions are carried on to a

considerable extent in interstate and foreign commerce and through

the means and instrumentalities of such commerce” and “[e]ven where

. . . purely intrastate in character . . . directly affect

interstate and foreign commerce.”

1358 & n.1. It also noted

evidence before Congress that loan sharking was “the second largest

source of revenue for organized crime” and is “controlled by

organized criminal syndicates,” that “through loan sharking the

organized underworld has obtained control of legitimate businesses,

including securities brokerages and banks,”

, and

concluded by stating that “loan sharking in its national setting is

one way organized interstate crime . . . syphons funds from

numerous localities to finance its national operations.”

at

57 1362-63.

The Court likewise noted that “[t]here was ample evidence

showing petitioner was a ‘loan shark’ who used the threat of

violence as a method of collection,”

, and “[i]n the

setting of the present case there is a tie-in between local loan

sharks and interstate crime.”

.46

In upholding the conviction the Perez Court relied on Wickard,

Wrightwood Dairy Co., Heart of Atlanta, McClung, and Wirtz for the

principle that the class of activities is the proper measure of the

required relationship to interstate commerce and that courts would

not “‘excise, as trivial, individual instances’ of the class.”

.

Plainly, Perez dealt with a national market in credit, in

which individual instances interact with each other by virtue of

market forces. More significantly, perhaps, it dealt with a

statute attempting to regulate a particular interstate activity,

that of “organized interstate crime,” which was financed by the

both local and interstate loan sharking which it controlled.

46 The Court also noted that Perez, among other collection threats, had said “my people” could put the victim in the hospital if he didn’t pay.

. The Second Circuit, whose affirmance of the conviction was ultimately affirmed by the Supreme Court, noted that the victim borrowed the money to open his own butcher shop, having been unable to procure a loan through normal banking channels, that the rate of interest charged by Perez “was obviously large enough to perpetuate the indebtedness forever,” that payments to Perez were made only by such methods as the victim’s delaying payments to his meat suppliers, and that as a result of all this, including Perez’s threats of violence and of “the attention of persons higher in the moneylending chain,” the victim “abandoned his business” and fled to Puerto Rico “leaving his debts, legitimate and illegitimate, behind.” United States v. Perez,

(2d Cir. 1970).

58 at 1362-63.47 Moreover, Perez also relied on the principle that

“‘when it is necessary in order to prevent an evil to make the law

embrace more than the precise thing to be prevented it may do so’”

(quoting Westfall v. United States,

(1927)), and then

observed “in the present case there is a tie-in between local loan

sharks and interstate crime.” Id. at 1362. This would appear to

invoke the rule that where the same kind of trafficking is carried

on both interstate and intrastate Congress in preventing the

interstate trafficking may also proscribe the intrastate

trafficking where, as a practical matter (for reasons such as the

fungibility of the particular commodities or the like), it is

necessary to regulate the intrastate trafficking in order to

effectively regulate the interstate trafficking. See, e.g., United

States v. Lopez,

(5th Cir. 1972).48

47 As the Second Circuit had observed in its affirmance of the conviction: “Loan-sharking activities can persuasively be characterized as generally in or affecting commerce precisely because such practices depend for their full effect on monopoly in metropolitan areas and national, or at least multi-state, organization. This provided a logical basis for congressional focus on loan-sharking rather than on a variety of other crimes which may be far more “local” in nature, e.g., robbery, burglary, larceny.” United States v. Perez,

(2d Cir. 1970) (emphasis added). 48 Much the same thought is expressed in the Second Circuit’s opinion affirming Perez’s conviction, viz: “What is known as legislative fact for a class of transactions–the effect on interstate commerce–is not necessarily easily provable in an individual instance of loan-sharking. Trying to trace the flow of funds from the immediate enforcer to the organization behind the loan might well be impossible in a particular case. Money, of course, is a classic fungible commodity; showing its movement interstate may be completely impossible where all that moves is cash recorded, if at

59 The present case does not involve the targeting of any

particular interstate market or activity, and it is evident that

the proscription of robberies which do not have the requisite

effect on interstate commerce is in no sense necessary to effective

regulation of those that do.

We finally turn in this connection to Hodel v. Virginia

Surface Mining & Reclamation Ass’n,

(1981) (Hodel v.

Virginia) and Hodel v. Indiana,

(1981), in each of

which the Court rejected Commerce Clause challenges by various coal

producers to certain provisions of the Surface Mining and

Reclamation Control Act of 1977. The challenged provisions

constituted a complex regulatory scheme governing surface coal

mining operations, requiring, among other things, land restoration,

use of dams, spoil disposal and the like. The Court noted

congressional findings that surface mining adversely affects

interstate commerce by, inter alia, destroying the utility of land

for commercial, industrial, agricultural, forestry and other

purposes, causing erosion and contributing to flooding, polluting

water and otherwise. Hodel v. Virginia at 2361. The Court

observed that “coal is a commodity that moves in interstate

all, as an intangible on someone’s records or in someone’s memory.” United States v. Perez,

(2d Cir. 1970). Similarly, in United States v. Darby,

(1941), the Court stated: “Congress in the exercise of its power to require inspection and grading of tobacco shipped in interstate commerce may compel such inspection and grading of all tobacco sold at local auction rooms from which a substantial part but not all of the tobacco sold is shipped in interstate commerce.”

60 commerce. Here Congress rationally determined that regulation of

surface coal mining is necessary to protect interstate commerce

from adverse effects that may result from that activity” and that

“the power conferred by the Commerce Clause [is] broad enough to

permit congressional regulation of activities causing air or water

pollution, or other environmental hazards that may have effects in

more than one state.” Id. at 2363. Hodel v. Indiana focused on

the prime farmland provisions of the Act, holding that “Congress

had a rational basis for finding that surface coal mining on prime

farmland affects interstate commerce in agricultural products.”

Id. at 2384. Both decisions note that federal standards were

appropriate to insure that the forces of interstate competition in

the coal industry would not undermine the maintenance of adequate

standards. Thus Hodel v. Virginia states:

“the Act responds to a congressional finding that nationwide ‘surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders.’ . . . The prevention of this sort of destructive interstate competition is a traditional role for congressional action under the Commerce Clause.” Id. at 2363.

Hodel v. Indiana expresses essentially the same thought.49 A

footnote called for at the conclusion of the portion of the Hodel

v. Indiana opinion dealing with the Commerce Clause states:

49 The opinion there states: “. . . the Act reflects the congressional goal of protecting mine operators in States adhering to high performance and reclamation standards from disadvantageous competition with operators in States with less rigorous regulatory programs.” Id. at 2386.

61 “Appellees contend that a number of the specific provisions challenged in this case cannot be shown to be related to the congressional goal of preventing adverse effects on interstate commerce. This claim, even if correct, is beside the point. A complex regulatory program such as established by the Act can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Id. at 2386 n.17 (emphasis added) (citing Heart of Atlanta Motel and McClung).

Thus the Hodel cases deal with a complex regulatory program of

a particular industry engaged in interstate commerce designed to

control a particular set of interstate effects of certain practices

of that industry. The regulated instances of intrastate conduct

are related to each other and to the particular scheme of

regulation of interstate commerce and effects thereon by the forces

of the interstate market in the particular regulated industry. And

the regulated instances of intrastate conduct also all either have

the same character of effect on interstate commerce or are an

integral or essential part of the overall complex regulatory scheme

governing particular businesses engaged in interstate commerce,

such that unless the covered intrastate activities were regulated

the regulatory scheme would be undercut.

It is also significant that in all the above discussed Supreme

Court aggregation cases the intrastate conduct being regulated was

conduct forming a part of the operation of a wholly or partially

commercial enterprise (whether owned and operated by an individual

or some legal entity). The regulations governed aspects of how

such a commercial (or partially commercial) enterprise must

62 operate, what it must or must not do in its operations. See

Morrison,

n.4 (“[I]n every case where we have

sustained federal regulation under Wickard’s aggregation principle,

the regulated activity was of an apparent commercial character.”).

We recognize that language in Russell v. United States,

(1985), a prosecution under the federal arson statute,

(i), suggests that a broader–indeed virtually

unlimited–application of the aggregation principle is

constitutionally permissible.50 But the only issue in Russell was

one of statutory construction; no constitutional or Commerce Clause

claim was presented to the Supreme Court. Russell involved the

owner of a two unit apartment building which was being rented to

tenants at the time he attempted to destroy it by fire; he earned

rental income from it and treated it as business property for tax

purposes.

.51 He unsuccessfully contended before the

50 Russell states: “[T]he local rental of an apartment unit is merely an element of a much broader commercial market in rental properties. The congressional power to regulate the class of activities that constitute the rental market for real estate includes the power to regulate individual activity within that class.”

. 51 See also the opinion of the Seventh Circuit affirming the conviction, United States v. Russell,

(1984), stating: “The South Union Street apartment building was one of four pieces of property that Russell owned and rented to tenants. Russell’s income tax returns from 1976 through 1982 demonstrated that Russell treated these properties as income property for which he claimed business deductions for depreciation and expenses. These properties also were covered by business fire insurance policies, in contrast to the defendant’s own residence which he covered by a homeowner’s policy limited to owner-occupied premises. At the time of the incident in question, Russell lived in neither unit of

63 Supreme Court, as he had in the District Court,

(N.D. Ill. 1983), and in the Court of Appeals,

(7th

Cir. 1984), “that the building was not commercial or business

property, and therefore was not capable of being the subject of an

offense under section 844(i).” Id. at 2456. In the Supreme Court

he presented only an issue of statutory construction and expressly

disclaimed any constitutional argument, his “Brief For Petitioner”

there stating:

“Mennuti [United States v. Mennuti,

, 2d Cir. 1981, the case on which he principally relied] does not hold, nor does petitioner contend, that Congress could not have drafted a statute encompassing virtually every building in the land, had it chosen to do so. Thus, this case does not present a constitutional challenge to congressional power under the Commerce Clause. It is our contention that, as held in Mennuti, the statute that Congress did pass,

(i), as explicated by the House Judiciary Committee Report referred to above, does not cover a building used as a dwelling by a tenant of the owner, even though interstate utilities may have been used in the building.”

(emphasis added; footnote omitted).52

We also note that section 844(i) applies only to property that is

the South Union Street property.” 52 The Government’s “Brief For The United States” in the Supreme Court likewise states “Petitioner concedes that Congress has power under the Commerce Clause to prohibit arson of sort he attempted. Relying on United States v. Mennuti,

(2d Cir. 1981), petitioner argues that Congress did not intend to exercise its commerce power fully in enacting section 844(i), but intended to cover ‘business property’ only.” Id. at 5. Nothing in either the District Court or the Court of Appeals opinions in Russell even mentions any constitutional issue, and each treats the case as solely one of statutory construction, namely whether § 844(i) was inapplicable (as the defendant contended, before those courts and the Supreme Court, that it was) because the property was residential and hence not business property. Both those courts rejected that contention, holding that though residential in one sense the property was used as a business by the defendant. See United States v. Russell,

.

64 “active[ly] employ[ed] for commercial purposes,” Jones,

, while the here relevant prong of the Hobbs Act is in no

way analogously limited but rather applies regardless of whether or

not the victim is engaged in any character of commercial activity.

We conclude that Russell does not resolve the Commerce Clause

aggregation issue as applied to this character of Hobbs Act

prosecution.

We recognize that “substantial” for purposes of Lopez category

three has a qualitative as well as a quantitative aspect, though

those two aspects are somewhat interrelated rather than being

entirely independent of each other. Limits on the aggregation

principle, necessary to give meaning to “substantial” so as to

preserve the distinction between “what is truly national and what

is truly local,” should thus take into account both quantitative

and qualitative considerations. We conclude that the limits we

have outlined do so notwithstanding that their most obvious focus

may be quantitative. To the extent that there is a meaningful,

rational basis to aggregate, then the aggregated quantitative

effect on interstate commerce tends to qualitatively justify

viewing the matter as truly national rather than truly local.

Conversely, that the regulated category three intrastate conduct is

not a commercial activity but is rather essentially “the

suppression of violent crime” is a qualitative consideration

pointing towards the regulation being of a truly local nature

unless there is a meaningful and rational basis for aggregation.

There is no sufficient rational basis to aggregate the effects on

interstate commerce of any of the four individual prototypically

65 local crimes of violence here prosecuted with the effects on

interstate commerce of all the undifferentiated mass of robberies

covered by the Hobbs Act’s general proscription of any and all

robberies that “in any way or degree . . . affect[] commerce.”

Conclusion

We turn to Lopez and Morrison for guidance, concluding that

their relevance is not confined to cases where the statute lacks a

jurisdictional element. Moreover, we conclude that the Hobbs Act’s

here relevant proscription of any robbery that “in any way or

degree . . . affects commerce” does not constitute a regulation of

commercial activity, notwithstanding that all robberies have some

economic effect, and hence is within the scope of Lopez and

Morrison. We further conclude that the instant robberies fall

within Lopez category three, and for that reason they are within

the Commerce Clause power only if they “substantially” affect

interstate commerce. Individually considered, it is clear that

none of them do. Nor is there any rational basis to for that

purpose aggregate their respective effects on interstate commerce

with the effect on interstate commerce of all the undifferentiated

mass of robberies covered by the Hobbs Act’s here relevant general

proscription of any and all robberies which “in any way or degree

. . . affect[] commerce.” To allow such aggregation in Lopez

category three cases would, without adequate justification, bring

within the scope of the Commerce Clause the proscription of local

violent (and other) crimes not constituting the regulation of

commercial activity, crimes prototypical of those that historically

have been within the reserved police power of the states, contrary

66 to the principle that the Commerce Clause is limited to matters

that are truly national rather than truly local.

The conviction on each of the Hobbs Act counts accordingly

should be reversed.53 Because each of the section 924(c)(1) counts

of conviction is concededly dependent on the corresponding Hobbs

Act count of conviction, all the section 942(c)(1) counts of

conviction should likewise be reversed.

We respectfully dissent from the affirmance of these

convictions.

53 As we conclude the evidence does not suffice to show the requisite effect on interstate commerce we do not separately address the complaints of the jury charge.

67 PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring in the dissent

from the judgment affirming conviction, with whom GARWOOD, JOLLY

and DeMOSS, Circuit Judges, join:

For a second time this court has been unable to agree upon the

bite of recent Supreme Court interpretations of the Commerce

Clause. This should be no surprise. We are left adrift by a

statute whose reach is at best no more fixed than a property line

set at the latest low tide mark of an ocean tributary.

There is some certainty. The Supreme Court has turned away

from the New Deal view that the reach of the Commerce Clause is to

be largely defined by the political process. But the path it will

follow and how far it will go are undecided. In turn, the

respective roles of Congress and the courts in this enterprise

remain uncertain. Add the Hobbs Act’s unique effort to define its

reach by proscribing all robberies over which there is federal

jurisdiction – a wholly tautological statement made at the zenith

of the judiciary’s abandonment of the commerce field to the

Congress – and we are left with three choices. We can take the

Hobbs Act as a congressional punt and decide it ourselves, we can

leave it to the political process, or we can invoke the dialogic

process of the doctrine of clear statement. The first two options

describe this court’s division. Our court’s impasse leads me to

state the case for the third path. At the least, it will make

68 plain the division of this court. In describing this path, I need

not retreat from the view expressed for half of our court in

Hickman and so ably defended in Judge Garwood’s opinion, again for

one half of our court.

I

With the developing case law since Hickman, there is a step

that principles of judicial restraint offer this inferior court

before it decides if Congress has the authority under the Commerce

Clause to make a federal crime of local robberies such as those

before us here. It could insist that Congress first do what it has

not done – make clear its purpose to reach the wholly intrastate

activity charged in the crimes now before us. For reasons I will

explain, by the third path we ought to refuse to apply the Hobbs

Act to this genre of local robberies until Congress clearly states

its purpose to do so. Only then should the courts decide the

commerce question now being pressed upon us.

II

The Supreme Court has long required that if Congress intends

to alter “the usual constitutional balance between the States and

the Federal Government,”54 it must make an unmistakably clear

statement of its intention to do so in the language of the

statute.55

54 Will v. Michigan Dept. of State Police,

(1989) (quoting Atascadero State Hosp. v. Scanlon,

(1985)).

55 Will,

; United States v. Bass,

(1971).

69 Although it found expression most often in the context of

congressional abrogation of state sovereign immunity,56 the doctrine

of clear statement has been applied broadly where uncertainty in

the application of congressional directives would leave to the

court the decision to upset the federal-state balance. The Supreme

Court has invoked the doctrine in various settings. It found that

states were not “persons” within the meaning of

,57

and that the Federal Age Discrimination in Employment Act could not

be construed to interfere with a State’s choice of judges absent

clear language that judges are included.58 Similarly, the doctrine

of clear statement is one of the articulated limits on the spending

power,59 and federal laws criminally punishing “conduct readily

denounced as criminal by the States” are narrowly interpreted

absent a clear statement of Congress’ intent to significantly alter

the federal state-balance.60

The doctrine of clear statement is animated by principles of

federalism inherent in the structure of the Constitution.61

56 Atascadero,

.

57 Will,

.

58 Gregory v. Ashcroft,

(1991). This although the statute provided that uncertainty of scope should be resolved in favor of coverage.

.

59 South Dakota v. Dole,

(1987).

60 Bass,

.

61 See Seminole Tribe of Florida v. Florida,

(1996) (“This rule arises from a recognition of the important role played by the Eleventh Amendment and the broader principles that it reflects.”); Gregory,

(“This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our 70 Although the protection of the States against intrusive exercises

of Congress’ Commerce Clause powers is still largely left to the

political process,62 to permit courts to decide whether a poorly

aimed congressional thrust encroached upon state regulation of

intrastate criminal activity “would evade the very procedure for

lawmaking on which Garcia relies to protect states’ interests.”63

Insisting upon a clear statement from the Congress is a modest

exercise of judicial power. It only asks that Congress do its job,

insisting that Congress engage its political responsibility by

being clear of its purpose when it would reach into a sphere of

state authority.64 In its most sanguine form, it “may lead some

members to engage in the kind of deliberation about the scope of

their Article I powers that they should undertake anyway as part of

their responsibility to uphold the Constitution.”65

The doctrine of clear statement does not require us to define

“traditional governmental activities” in the abstract, an approach

rejected by the Court in Garcia.66 We follow long-standing Supreme

constitutional scheme.”).

62 Garcia v. San Antonio Metropolitan Transit Authority, 469 US. 528 (1985) (declining to review limitations placed upon Congress’ Commerce Clause powers by our federal system).

63 Gregory,

(quoting LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-25, at 480 (2d ed. 1988)).

64 See United States v. Lopez,

(Kennedy, J., concurring) (citing New York v. United States,

(1992)).

65 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-9, at 857 (3d ed. 2000).

66 Garcia,

(arguing that it is too difficult to define a “traditional governmental activity”).

71 Court precedent, decided after Garcia,67 that requires us to be

certain of Congressional purpose before finding that a federal law

overrides the federal-state balance.68 There is here no cordoning

off of traditional governmental activities — rather, we follow the

Supreme Court’s lead, recognizing that the doctrine of clear

statement protects a sphere of state authority.69 Local robberies

of local businesses have always been the concern of state

government and within this sphere of state authority that must not

be entered absent a clear congressional statement.70 Significantly

and independently it is a legal doctrine uniquely fitted to the

hand of a court that would act with restraint in insisting that the

enumerated powers remain just that. For this reason, by this path

we would not now decide that the Hobbs Act may be applied to

discrete local robberies. The political process ought to first

decide its intended reach, at least before the full force of

judicial review is unleashed.

III

67 Gregory,

(explaining how the doctrine of clear statement works in conjunction with Garcia’s conviction that the federal-state balance is primarily protected by the political process); Will,

; Atascadero,

(articulating doctrine of clear statement four months after Garcia was decided).

68

at 460 (citing Atascadero,

).

69 Gregory,

(requiring a clear statement of congressional intent before interpreting a law to infringe upon State sovereignty); see also Lopez,

(Souter, J., dissenting) (noting that the doctrine of clear statement should be relied upon in cases implicating congressional encroachment upon “state legislative prerogatives” or “enter[ing] into spheres already occupied by the States.”).

70 Bass,

.

72 The Hobbs Act fails to provide the expression of “unequivocal

congressional intent” necessary to intrude upon this sphere of

state authority.71 It is true that the statute reaches all

robberies that affect commerce “in any way or degree,”72 and it is

also a truism that the Hobbs Act expresses congressional intent to

use “all the constitutional power Congress has.”73 Neither of these

statements state a congressional purpose to regulate the robberies

here, as I will explain. And although in recent years there have

been episodic federal prosecutions of these type of local

robberies, this activity of other branches of government reflects

purpose only in the sense that it was not halted by the Congress –

inaction from which we ordinarily do not infer purpose and

certainly not clear purpose. Significantly, there is no principled

limit to a reading of commerce power that would sustain federal

jurisdiction over the activity charged in the cases before us

today. Those who would argue that the Congress has clearly

expressed its purpose to make federal crimes of the robberies here

will have to persuade that Congress intended to reach the

proverbial “robbery of the lemonade stand”; that its purpose was to

claim federal hegemony over local activities, including a street

mugging. Either that or defy the words claimed to be so clear by

some case-by-case judgment that is little more than the arbitrary,

“well, not that far.”

71 Atascadero,

.

72

.

73 Stirone v. United States,

(1960).

73 By the time the Anti-Racketeering Act of 1934 was amended and

became the Hobbs Act, the Supreme Court had already held that

congressional power under the Commerce Clause was “plenary and

extends to all such commerce be it great or small.”74 This was a

direct subscription to the view that the limits of congressional

power under the Commerce Clause will be set by the political

process; at the least the political process was the main player.

As the Court later conceded in Katzenbach v. McClung,75 it would not

“interfere” as long as Congress violated “no express constitutional

limitation.”76 Until Lopez was decided, the Court upheld all

Commerce Clause legislation as a matter of course, concluding that

where there is “a rational basis for finding a chosen regulatory

scheme necessary to the protection of commerce, our investigation

is at an end.”77 Given that the Court wholly deferred to Congress’

own interpretation of the limits of the commerce power, the

observation that the Hobbs Act purports to reach to the limits of

the commerce power as defined by the courts sheds no light. In an

era when the limits of the commerce power were defined by the

Congress, even a congressional directive to reach to the limits of

the Commerce Clause was no direction at all – it was wholly

74 Nat’l Labor Relations Bd. v. Fainblatt,

, 606 (1939); see also Nick v. United States,

(4th Cir. 1941) (holding that Fainblatt mandates an expansive reading of the Anti-Racketeering Act).

75

(1964).

76 Id. at 304.

77 Maryland v. Wirtz,

(1968) (quoting Katzenbach,

).

74 tautological and as we will see, the Hobbs Act definition of

commerce was not even that pointed.

Lopez and Morrison, with the doctrine of substantiality,

returned the courts to the field, to once again police the limits

of congressional authority under the Commerce Clause. Arguably,

when the Court began to withdraw from the concession to the

political process, the earlier congressional directives that the

Act ought reach as far as the constitution permits could then be

seen as a clear expression of congressional purpose in that it was

no longer talking to itself; rather the courts were to decide. But

with the doctrine of substantiality, whether the meandering

intrusions by local United States Attorneys can be validated if

Congress wishes to do so, is at best uncertain. The statute’s

description of robberies and its definition of commerce are quite

different, its commerce definition clearly reaching conduct falling

under the first two prongs of Lopez but leaving intrastate activity

(as before us here) to be picked up at all only by its question-

begging catch of all other commerce over which the United States

has federal jurisdiction:

“commerce within the District of Columbia, or any Territory or Possession of the United States; 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.”78 (emphasis supplied)

The “robberies” in this case, if picked up at all, must be

reached by the phrase “and all other commerce over which the United 78

(b)(3) (emphasis added).

75 States has jurisdiction.” This expression of purpose, made at the

zenith of legislative hegemony in the contest of who decides the

limits of the commerce power, is no more plain than the Jones Act’s

reach of any seaman or the Omnibus Crime Control and Safe Streets

Act’s reach of every firearm.79

IV

As we observed, it is now clear that this generalized reach

cannot touch intrastate acts that do not have a substantial effect

upon interstate commerce. The government concedes that the

robberies before us cannot meet the substantial effects requirement

– all robberies must be aggregated. At this point we can engage in

a supposition that Congress thought all these local robberies were

sufficiently linked to regulate them as a class. This is fanciful

because such an aggregation was not even thought to be necessary at

the time of the 1934 Act or the Hobbs Act. The fact is that

Congress has never made that decision. It has never decided

whether or what to aggregate.

Hickman insists that Morrison’s requirement that regulated

intrastate activities have a substantial effect upon intrastate

commerce has no content absent a further insistence upon a rational

relationship among discrete effects that would be aggregated. This

means that a judgment about the rationality of aggregating the

effects of these discrete robberies is a correlative requirement of

substantiality, and must be made. By this third path, it must

79 Welch,

(applying doctrine of clear statement to exempt states from the Jones Act despite the sweeping language of “[a]ny seaman” in the statute); Bass,

(employing the doctrine of clear statement to exclude the “mere possession” of firearms from the reach of the Act).

76 first be made by the Congress. Only after that judgment is made,

should the courts decide the issue of the level of deference due

that legislative judgment. And it is then that the very content of

the newly required substantial effect will be decided.

There is irony in a court about the task of policing the

enumerated powers moving to the alternative of presuming a

legislative judgment or supplying its own view in the first

instance. If it is sufficient to hypothesize rationality, drawing

upon the creativity of counsel and judicial imagination there is

nothing substantial about substantiality; the courts will have

wholly deferred to the political process as the arbiter of the

state-federal role. On the other hand, if the congressional

purpose is not relevant, or is simply supplied by the courts, the

courts would be the exclusive arbiter. I am not persuaded that the

principle of the separation of powers ought to only oscillate

between these two polarities.

V

This is not the first time that the doctrine of clear

statement has been applied to limit the application of a federal

criminal statute to intrastate criminal conduct. In United States

v. Bass,80 for example, the Court required a clear statement from

Congress before it would apply the Omnibus Crime Control and Safe

Streets Act to extend federal law enforcement to a class of

intrastate criminal activity that had long been regulated solely by

80 Bass,

.

77 the States.81 Two years later, in United States v. Enmons,82

Congress applied this doctrine to the Hobbs Act. In Enmons the

Court refused to apply the Hobbs Act to violence associated with a

labor dispute even though this activity was presumptively within

the broad bounds of the statute. Despite the general and broad

language of the Hobbs Act, the Court required “language much more

explicit” before it would apply it to local strikes because doing

so would represent “an extraordinary change in federal labor law”

and constitute “an unprecedented incursion into the criminal

jurisdiction of the States.”83

In response to Enmons, the Sixth and Ninth Circuits narrowly

construed the Hobbs Act, concluding that only activities that

constitute “racketeering” are prohibited by the Act.84 The Court

rejected this approach in United States v. Culbert,85 concluding

that it conflicted with a plain reading of the statute as well as

the legislative history.86 Culbert also rejected the claim that the

doctrine of clear statement required the Court to read a

racketeering requirement into the Hobbs Act, characterizing the

argument as an attempt to “manufacture ambiguity where none 81

.

82

(1973).

83 Id. at 350-51.

84 United States v. Culbert,

(9th Cir. 1977); United States v. Yokley,

(6th Cir. 1976).

85

(1978).

86 Id. at 373-378.

78 exists.”87 The Court also rejected the idea that a racketeering

requirement must be read into the Act because without a

racketeering requirement, the federal-state balance would be upset.

The Court held that “there is no question that Congress intended to

define as a federal crime conduct that it knew was punishable under

state law.”88 Of course, these were robberies fully under the first

two prongs of Lopez, never seen as the exclusive domain of the

states.

Culbert and Enmons teach that by defining as a federal crime

conduct that it knew was punishable under state law, Congress knew

that it would alter the balance of federal-state power. The

question was whether the application of the statute would generate

a result that interfered with state authority in a way that

Congress had not intended.89 Unlike Culbert, which involved an

attempted robbery of $100,000 from a federally insured bank, Enmons

involved the application of the Hobbs Act to violence used to

achieve legitimate union objectives in a strike, thereby

effectuating “an unprecedented incursion into the criminal

jurisdiction of the States.”90 Here, as in Enmons, we cannot apply

87 Id. at 379.

88 Id. at 379.

89 It should be noted that while Culbert held that “Congress intended to make criminal all conduct within the reach of the statutory language” of the Hobbs Act, this must be read as a response to the argument that a racketeering requirement be read into an act, given that the conduct reached in Enmons fit within the statutory language but presumably could not be reached without a clear statement from Congress.

90 Enmons,

.

79 the statute to violate the protected sphere of state authority

without a clear statement that Congress intended that result.

V

To make clear its purpose to regulate this activity, Congress

must make a legislative judgment about the rationality of

regulating the activity as a class, impliedly or explicitly.

Courts in turn must decide the deference due that legislative

judgment, a task that has proved difficult and divisive in the

course of recent cases. Only then will it be decided whether the

requirement of substantial effect has content or is only a symbolic

waive of the judicial hand. The recent pattern of Commerce Clause

cases offers a powerful argument for the dialogic legislative first

step afforded by the doctrine of clear statement.

The Court’s claim of a judicial role in defining the limits of

the commerce power did not suggest that it was to the exclusion of

Congress. Nonetheless, we could simply proceed. And in

justification point out that even with a clear statement, at the

margins we might yet be engaged to adjudicate the limits by a case-

by-case decision of this one’s in and that one’s out. But there

remains the nagging precedent and transcendent question of the

rationality of aggregating and what is meant by rationality, a task

the Congress and the courts in turn have not faced. The question

nags because of the further suggestion that unless no deference

will be given to such a congressional decision, we ought not

proceed without it, and the Supreme Court has not said that no

deference is due.

80 All said, by the third path we ought to require Congress to

first make clear the wholly intrastate robberies with an effect

upon interstate commerce that it would regulate, whether connected

by conspiracy, spree, or in some other way, possibly a

confrontational response of single robbery without substantial

effect. As Chief Justice Rehnquist reminded in Morrison:

[I]n the performance of assigned constitutional duties each branch of the government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others....91

We have nothing from the Congress.

91 United States v. Morrison, n.7

(2000). 81 EDITH H. JONES, Circuit Judge, dissenting, with whom JOLLY, SMITH, DeMOSS and CLEMENT, Circuit Judges, join:

Judges Garwood’s and Higginbotham’s non pareil opinions

explain why eight members of this court would hold that appellant

McFarland could not be constitutionally prosecuted under the Hobbs

Act for routine convenience store robberies. The Supreme Court’s

decisions in Lopez and Morrison compel this result, in our view, by

limiting the extent to which the Commerce Clause facilitates ever-

deeper federal incursions into the states’ constitutional

prerogative of local crime control. Eight other judges silently

reject this conclusion. Unfortunately, they have withdrawn from

the field of reasoned dispute, just as they did in a similar case

two years ago. United States v. Hickman,

(5th Cir.

1999) (en banc). It is our view that our court owes the public a

candid explanation of our respective positions.

One may ask why our silent colleagues should be called on

to write anything. Is it somehow inappropriate for courts to issue

opinions when they are evenly divided? The short answer to this

question is, no. Both the general role of the appellate courts and

the exact circumstances of this case virtually demand expression of

our competing views.

Federal appellate courts’ twin duties are to decide

appeals and to articulate the law. Writing reasoned opinions,

especially in important cases, is critical to the responsible

performance of these duties. One of the most prominent studies of

the federal appellate courts exhorts us:

The obligation to give reasons is vital to both functions. When reasons are announced and can be weighed, the public can have assurance that the correcting process is working. Announcing reasons can also provide public understanding of how the numerous decisions of the system are integrated. In a busy court, the reasons are an essential demonstration that the court did in fact fix its mind on the case at hand. An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles. Moreover, the necessity of stating reasons not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or issues which their normal instincts would otherwise cause them to avoid.

Paul D. Carrington, Daniel J. Meador and Maurice Rosenberg, Justice

on Appeal 10 (West 1976) (emphasis added). Judge Wald, formerly

Chief Judge of the District of Columbia Circuit, also emphasized

this point: “The courts’ opinions should contain reasoned

explanations of their decisions to lend them legitimacy, permit

public evaluation, and impose a discipline on judges.” Hon.

Patricia Wald, The Problem with the Courts: Black-Robed Bureaucracy

or Collegiality Under Challenge?, 42 Md. L.REV. 766, 768-69 (1983).

The benefits of issuing reasoned opinions – fostering

public understanding of the law, accountability and transparency,

and imposing self-discipline on the judges – are not limited to

majority opinions. Judges’ occasional writings, such as

concurrences, dissents, opinions following denial of en banc

rehearing – and opinions written despite an evenly divided court –

lack the force of law but deploy the force of suasion for exactly

the same purposes as majority opinions. In no case can we compel

our brethren to provide published reasons for their decisions. By

their silence here, however, they have defaulted their duties of

public explication, accountability and transparency.

83 Our colleagues’ uniform silence is initially

disappointing because this is an important case. For more than a

decade, the Supreme Court has been reinvigorating federalism as a

component of our constitutional structure. Lower federal courts

have the obligation conscientiously to enforce the Court’s

decisions in this evolving area. The new trend furnishes issues

that should intellectually delight and challenge us and evoke our

utmost analytical powers. Our opinions may be useful to the

Supreme Court, for good or ill, when this case is appealed, and may

be persuasive in other federal courts.

The reticence of our colleagues cannot, in our view, be

rationalized as prudence, or the unwillingness to write reasons in

a non-definitive case. The outcome of this case is definitive.

When the court tackled the same issue two years ago, nearly the

same group of judges declined to give reasons for affirming a Hobbs

Act conviction against a Commerce Clause attack. As a result, the

federal government feels free to prosecute purely local robberies

without inhibition in this circuit. Our pattern jury instructions

continue to say that a showing of any effect on interstate commerce

(no matter how small) will suffice to create federal jurisdiction

over a Hobbs Act crime. The only brake installed by this court

against federalization of all robberies under the Hobbs Act

consists of our arbitrary exclusion a few years ago of robberies of

individuals. United States v. Collins,

(5th Cir. 1994).

The affirming judges’ silence here thus assures, whether they

desire it or not, that there is no principled limit on federal

prosecution of robberies – even of the proverbial lemonade stand.

84 Adding to the mystery of their silence is the long-

standing and consistent, albeit optional, practice of issuing

explanatory opinions in other courts that have split evenly when

sitting en banc. There are at least two dozen cases in recent

years, from nearly every circuit, in which such opinions were

issued.92 Responding to a colleague’s 92 United States v. Brown,

(1st Cir. 2002) (en banc): Three judges wrote separate statements supporting reversal of the district court’s judgment

Jean v. Collins,

(4th Cir. 2000) (en banc): 1 opinion concurring in affirmance by equally divided court; 2 dissenting opinions.

United States v. Walton,

(4th Cir. 2000) (en banc): An opinion for affirmance written by a deceased judge was concurred in by half the court. In addition, two judges wrote separate concurring opinions, and three judges wrote dissenting opinions.

United States v. Barber,

(4th Cir. 1997).

Stupak-Thrall v. United States,

(6th Cir. 1996) (en banc): The order affirming the judgment of the district court by an equally divided vote states: “The mandate will not issue for fourteen (14) days from the date of this order so that members of the court may file any separate opinions they wish to.”

. Thereafter, concurring and dissenting opinions were filed.

United States v. Page,

(6th Cir. 1999) (en banc): 8 judges joined separate concurring opinion supporting affirmance; 3 separate opinions supporting reversal.

Norwood v. Bain,

(4th Cir. 1999) (en banc): separate opinions written explaining reasons why judges would reverse or affirm district court’s judgment on issues as to which en banc court was equally divided.

United States v. Chen,

(4th Cir. 1997) (en banc): defendants’

(c)(1) convictions were affirmed by an equally divided court. Judge Wilkins wrote a separate concurring opinion explaining the reasons for affirming those convictions. The judges who voted to reverse the convictions did not file an opinion.

Baker v. Pataki,

(2d Cir. 1996) (en banc): One separate opinion in favor of affirming; two separate opinions in 85 favor of reversing. The separate opinion in favor of affirmance cites cases regarding the practice of filing opinions in such cases in other circuits and notes:

Our prior cases do not purport to announce a rule that opinions on the merits should not be written, and we believe that there should be an option to issue them (which is obviously exercised affirmatively in this case). This is especially so because the views of this court of intermediate appeal might be useful to the Supreme Court in the event of an application for certiorari.

at 922 n.2.

United States v. Hamrick,

(4th Cir. 1995) (en banc).

Smith v. Zant,

(11th Cir. 1989) (en banc): By an equally divided vote, the court affirmed the district court’s grant of habeas relief as to Smith’s death sentence. Judge Tjoflat wrote a separate concurrence explaining why he and five other judges would affirm the denial of habeas relief as to the conviction, and would reverse the grant of habeas relief as to the death sentence. Judge Kravitch wrote a concurrence and dissent explaining why six judges would reverse the denial of habeas relief as to the conviction and affirm the grant of habeas relief as to the death sentence.

United States v. Grey Bear,

(8th Cir. 1988) (en banc): Separate opinions were filed in support of reversal and in support of affirmance. The opinion in support of reversal states that it is written “solely because” the opinion in support of affirmance “could cause confusion among lawyers and district judges of this circuit.”

. The opinion in support of affirmance states: “As the divided court today affirms the rulings of the district court with respect to joinder and severance, it is appropriate that we articulate the reasons that five judges vote in favor of this result.”

.

Hotel & Restaurant Employees Union, Local 25 v. Smith,

(D.C. Cir. 1988): The court split over the issues of standing and ripeness. Judge Mikva’s separate opinion acknowledges that the opinions “carry no weight and determine no law of the circuit” and that it is “unlikely they will shed much light.” Nevertheless, he states that “[a] reasonable regard for our colleagues’ views in disagreement ... compels our brief statement of how we believe this appeal should have been resolved.”

. Judge Silberman filed a separate opinion for the other half of the court.

Piper v. Supreme Court of New Hampshire,

(1st 86 criticism of his filing a separate opinion in one such case, Judge

Wilkins of the Fourth Circuit had this explanation:

Judge Murnaghan’s unsupported statement that a judge should remain silent when an en banc vote on a particular issue is equally divided is misplaced. To the contrary, many times a judge feels that it is important for the

Cir. 1983) (en banc): Separate opinions supporting affirmance and reversal.

Elmore v. Cone Mills Corp.,

(4th Cir. 1994) (en banc): The court was evenly divided as to one issue. Three separate opinions were filed regarding that issue, two in support of affirmance and one in support of reversal.

Faulkner Advertising Assocs., Inc. v. Nissan Motor Corp. in U.S.A.,

(4th Cir. 1991) (en banc): Separate opinions in support of affirmance and in support of reversal.

United States v. Klubock,

(1st Cir. 1987) (en banc): one opinion supporting affirmance and two supporting reversal.

Jenkins v. Agyei,

(8th Cir. 1987) (en banc): separate opinions supporting affirmance and reversal.

Roesch, Inc. v. Star Cooler Corp.,

(8th Cir. 1983) (en banc): After noting that the usual practice when a judgment is affirmed by an equally divided court is not to express any opinion, the judges supporting affirmance stated: “In the present case, however, because of the significance of the issue involved and the circumstances of the changed en banc panel, we elect to set forth our reasons for affirming the district court’s judgment.”

. A brief dissent was filed by the judges supporting reversal, relying on the reasons discussed in a dissenting opinion filed in a companion case (Battle).

Battle v. Watson,

(8th Cir. 1983) (en banc): The judges supporting affirmance adopted the reasoning of the judges supporting affirmance in Roesch. The judges supporting reversal wrote a separate dissent.

But see FMC Corp. v. United States Dep’t of Commerce,

(3d Cir. 1994) (en banc): One of the dissenting opinions contains a footnote stating: “Because the court is equally divided on the issue of the government’s liability as an arranger, and it is our tradition not to write an opinion in that situation, I do not set forth what I believe are independent reasons to reverse the district court in that regard.”

at 854 n.7.

87 litigants and others to know why the court is divided on a particular issue. And, we routinely author opinions that do not carry the weight of the majority opinion such as concurring opinions, dissenting opinions, and opinions following a failed poll for en banc consideration; an expression of the reasons supporting a vote in this situation is not dissimilar. Moreover, the expression of the views of individual judges when an en banc vote is equally divided is hardly novel.

United States v. Barber,

(4th Cir. 1997) (en

banc) (citing cases).

In this court as well, silence is not our custom. Judges

have explained themselves in many previous cases where this court

divided evenly en banc. Carter v. United States,

(5th

Cir. 1963) (en banc); United States v. Holmes,

(5th

Cir. 1976) (en banc); Meltzer v. Bd. of Pub. Instruction of Orange

County, Florida,

(5th Cir. 1978) (en banc); United

States v. Ibarra,

(5th Cir. 1992) (en banc); United

States v. Greer,

(5th Cir. 1992) (en banc); United

States v. Kirk,

(5th Cir. 1997) (en banc); United

States v. Hickman,

(5th Cir. 1999) (en banc). In

1997, five of the eight judges who now say nothing joined an

opinion on an issue similar to the one now before us, whether Lopez

applied to invalidate a federal gun possession violation. United

States v. Kirk,

(en banc) (separate opinion of

Judge Parker, joined by Judges King, Davis, Wiener and Stewart).

The court was also evenly divided in Kirk. One wonders what could

prompt silence here, when juxtaposed with the writings there? In

sum, there are customary, issue-specific and even judge-specific

precedents for publishing written explanations following evenly

split en banc decisions in our court.

88 Given the sharpness and timeliness of the issue that

divides this court, the silence of those who affirm McFarland’s

conviction has a public dimension. The court is an institution

defined by the reasoned exercise of power. It signals disregard

for the public – the federal prosecutors and defense attorneys –

who remain unenlightened over how to avert, or precipitate, serious

discussion of the limits now imposed by the commerce clause on

federalization of local crime. Silence exhibits a unique unconcern

for appellant McFarland, as earlier for appellant Hickman, both of

whom were entitled to know how the power of the federal government

constitutionally bore down on them. Our court almost invariably

gives reasons for affirming criminal convictions – but not today.

Even in non-orally argued summary calendar dispositions, the

defendants invariably receive some explanation in response to their

appeals.93 Finally, this silence signals indifference toward the

predictability required of a fair-minded criminal justice system.

While diminishing the court’s transparency and

accountability, our colleagues’ silence may also obscure their

internal disagreements. But if that were the sole purpose, it

makes no sense. Judges often express different reasons for

reaching a single result. In fact, the best test of competing

93 As Judge Richard Arnold put it, “The third duty of the court is to write an opinion which is intelligible, which explains the result, and which we hope, is acceptable to the losing side. I think about losing litigants a lot. Those are the people who need to understand that they have been heard – that a reasoning creature of some kind has evaluated their argument and comes to some sort of conclusion about it. They won’t like it; they won’t enjoy losing, but I hope that they will have a sense that they have been heard.” Richard S. Arnold, The Future of the Federal Courts,

, 536 (1995). 89 legal theories is in the open marketplace of ideas. Silence,

therefore, could mean an unwillingness to compete.94

Had any of our silent colleagues chosen to compete, they

would have to explain why – in the face of Lopez, Morrison, Jones

and Judges Garwood’s and Higginbotham’s able opinions – the Hobbs

Act regulates “interstate commerce” by federalizing even a single

local robbery.95 Because our colleagues are unwilling to speak for

themselves, and because the public is entitled to receive some

reasons for affirming McFarland’s conviction, we shall attempt to

paraphrase the most significant arguments for their position.

Those who affirm concede that none of these local

robberies, considered individually or collectively, “substantially

affects” interstate commerce, as Lopez category III requires. They

acknowledge they can only show a proper basis for federal

prosecution under Lopez and Morrison if the Hobbs Act “regulates”

some intrastate activity whose aggregate national impact

substantially affects interstate commerce. But what is the

regulated activity, and how are its “substantial effects”

94 “If I cannot give a reason I should be willing to stand to, I must shrink from the very result which otherwise seems good.” County of Los Angeles v. Kling,

, 940 n.6 (1985) (Stevens, J. dissenting from summary reversal) (quoting Karl Llewellyn, The Common Law Tradition 26 (1960), quoted in Reynolds & Richman, The Non-Precedential Precedent -- Limited Publication and No-Citation Rules in the United States Courts of Appeals,

, 1204 (1978)). 95 We all agree that under the Hobbs Act, Congress may punish robberies that are perpetrated against the channels of interstate commerce (Lopez category I), goods or things in interstate commerce (Lopez category II), and even individual robberies that “substantially affect” interstate commerce (Lopez category III). Our dispute rests solely on whether intrastate robberies like the ones before us, that have no impact on interstate commerce, can be federally prosecuted. 90 calculated? There are mutually conflicting ways to answer these

critical questions. The silent judges apparently cannot agree on

the answers, and some of them apparently adhere to more than one

answer.

The first route is to assert that robbery is an “economic

activity.” This theory draws on an alleged distinction between

Morrison and Lopez. Even if Morrison states a categorical rule

against aggregating the effects of “noneconomic, violent criminal

conduct”, some of the silent judges apparently believe that

aggregation of robberies under the Hobbs Act is still permissible.

While Lopez suggested that aggregation of noncommercial activities

is inappropriate, see Lopez,

,

(emphasis added), Morrison’s language “clarifies” that the

aggregation of noneconomic activities is problematic. 529 U.S. at

617, 120 S. Ct. at 1754 (emphasis added). Thus, their argument

goes, Congress could have had a rational basis for concluding that

the Hobbs Act regulates economic activity because robbery is an

“economic crime.” More colorfully, one might assert that because

the thief sticks his hand into the stream of commerce, not

inadvertently or tangentially, but as a primary and defining aspect

of his conduct, robbery is an economic activity. Substituting yet

another metaphor, the robber’s conduct is a “coercive barter” in an

unquestionably commercial environment – a convenience store.

Of course, robbery should not be considered an “economic”

activity. The dictionary defines “economic” as “relating to, or

concerned with the production, distribution and consumption of

commodities.” Webster’s Third New International Dictionary 720

91 (1981). Certainly, robbery has some economic effect, but so do

murder, aggravated assault, and theft. Further, to say that

robberies may be aggregated because robbery is an economic activity

is contrary to the decisions of this court and many other courts

that robberies of individuals may not be aggregated for prosecution

under the Hobbs Act. See cases cited in n.35 of Judge Garwood’s

opinion. Under the robbery-as-economic-activity theory, Congress

could make it a federal crime intentionally to walk out of your

neighbor’s house with a $5 bill he left on his kitchen counter.

Arson is frequently an economically-motivated crime, but

in Jones, the Supreme Court interpreted the federal arson statute

not to reach the immolation of an individual owner-occupied

residence. Justice Ginsburg wrote for a unanimous Court that,

“[g]iven the concerns brought to the fore in Lopez, it is

appropriate to avoid the constitutional question that would arise

were we to read [the federal arson statute] to render ‘the

traditionally local criminal conduct’ in which petitioner Jones

engaged ‘a matter for federal law enforcement’” Jones v. United

States,

,

(2000).96

Moving in exactly the opposite direction, some of our

silent colleagues would agree that robbery is not an economic act, 96 Justice Ginsburg further noted that in Lopez, “the Court stressed that the [regulated activity] was one of traditional state concern and that the legislation aimed at activity in which ‘neither the actors nor their conduct has a commercial character.” Jones, 529 U.S. at 858,

-12 (quoting Lopez,

,

(Kennedy, J. concurring)). Additionally, Justice Stevens, in concurrence, stated the courts should be reluctant to “believe Congress intended to authorize federal intervention in local law enforcement in a marginal case such as this [arson of a private residence].” Id. at 859 (Stevens, J. concurring); see also Lopez,

n.3, 115 S. Ct. at 1631 n.3. 92 but because the Hobbs Act has a jurisdictional hook encompassing

any robbery that has “any effect” on interstate commerce, and

because robbery is not “too attenuated” from commercial enterprise,

Congress has power to proscribe all robberies under the Commerce

Clause. But the question these judges have not answered is how

their rationale provides any limit at all to the prosecution of

local crime by the federal government. Under their position, a

federal statute could extend to all murders and assaults which “in

any way or degree affect commerce,” or a federal statute could

criminalize all murders or assaults in which the victim is an

income earner and which “in any way or degree affect commerce.”

Aggregating such crimes would result in the requisite “substantial

effect.” Obviously, such “reasoning would allow Congress to

regulate any crime as long as the nationwide, aggregated impact of

that crime has substantial effects on employment, production,

transit or consumption.” Morrison,

,

. Morrison clearly rejected this view.

Some would affirm by crafting a narrower approach to the

statute, arguing that the Hobbs Act is really concerned with

convenience store robberies and the like, that is, with robberies

of commercial establishments.97 This approach stalls, however,

because it requires ignoring or judicially rewriting the statute;

97 Advocates of this position would contend that Congress can, pursuant to its Commerce Clause power, regulate otherwise local criminal conduct that targets businesses, but not individuals. This “rule”, they could say, provides a clear, practical guideline for legislators who are considering federal criminal legislation as well as for federal prosecutors. Let us ignore that this “rule” amounts to judicial legislation – if the “rule” were so easily defensible, why is it not articulated as the position of the silent colleagues? 93 the statute is not restricted to robberies of businesses or

commercial enterprises, much less to convenience stores or any

other specific victim. It plainly and broadly applies to any

robbery of any victim which “in any way or degree . . . affects

[interstate] commerce.” Further, in a purely result-oriented

fashion, this position allows aggregation of all convenience store

robberies, so that any of them – including a $1 robbery from a

local store that buys $10 a month of out-of-state goods from a

local wholesaler - may properly be prosecuted as a federal crime,

but it excludes a $10,000 robbery of diamonds from a jewel merchant

walking along a city street. Congress was hardly so inconsistent.

Alternatively, instead of facing the hard decision

whether robbery is or is not an “economic activity,” some of our

silent colleagues would argue that the Hobbs Act is “more closely

related to economic activity” than are other crimes, hence,

aggregation of robberies is permitted. But, as the Court pointed

out in Morrison, “in those cases where we have sustained regulation

of intrastate activity based upon the activity’s substantial

effects on interstate commerce, the activity in question has been

some sort of economic endeavor.” Morrison,

,

. See also Morrison, Id. n.4 (“. . . in every case

where we have sustained federal regulation under the aggregation

principle in Wickard (citation omitted), the regulated activity was

of an apparently commercial character. See, e.g., Lopez.”)

(citation omitted) (emphasis added). All of the Court’s prior

aggregation holdings involved a regulation of the conduct of a

wholly or partially commercial enterprise. The Hobbs Act is not

94 such a statute. This theory would extend aggregation to an area no

Supreme Court holding has traversed. Lopez and Morrison plainly

point away from such an extension.

Then again, some of our colleagues may head in a

different direction and dispute the premise that it has made a

crucial difference to the Supreme Court whether aggregation was

based on the status of the regulated activity as commercial or

noncommercial. From this standpoint, aggregation turns on the

effects of the activity (such as robbery) and not on the inherent

relation of the activity to interstate commerce. But Lopez says

exactly the opposite: “[w]here economic activity substantially

affects interstate commerce, legislation regulating that activity

will be sustained.” Lopez,

,

(emphasis added).

One distinctive approach would state that robbery is not

an economic activity, but also would assert that Judge Garwood’s

opinion has constructed a new test different from that in Lopez and

Morrison. Since no further explanation is offered, the source of

the novelty would apparently be left to the reader’s imagination.

Yet another conclusory position seems to assert that

prosecutors have been convicting defendants under the Hobbs Act by

aggregating the de minimis effects of local, intrastate robberies

for forty years. Of course, Lopez and Morrison had not been

decided forty years ago. Moreover, even though recent opinions of

sister circuits may support this sort of an argument for stare

95 decisis, their inadequate reasoning does not sustain the

constitutionality of the Hobbs Act as here applied.98

Finally, some of our silent colleagues would go so far as

to suggest that if the Supreme Court wanted to rein in application

of the Hobbs Act, it has had ample opportunity to do so. This

court should not take the initiative. But this reasoning is

backwards. It is the lower courts’ duty faithfully to apply the

Supreme Court’s rulings in Lopez and Morrison in the first

instance. We cannot ignore the Court’s decisions any more than we

are permitted to second-guess its failure to grant certiorari on

issues of interest to us.

Despite their internal conflicts or incoherency, all of

these arguments share a common thread. None of them responds to

the federalism concerns expressed so unmistakably in Lopez and

Morrison.99 None of them sets any principled limit on the exercise

of federal power to prosecute indisputably local crime.100 None of 98 See United States v. Gray,

, 1274-75 (11th Cir. 2001); United States v. Peterson,

(7th Cir. 2001); United States v. Malone,

(10th Cir. 2001). Several of the circuit courts have also drawn the patently arbitrary distinction between robberies of individuals and commercial establishments. 99 To cite but one example: “Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.” Morrison,

,

, (quoting Lopez,

,

(Kennedy, J., concurring)). 100 “If accepted, petitioners’ reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any type of violence since gender-motivated violence, 96 them respects that the words “commerce” and “economic” have fixed

meanings, which do not conventionally include ordinary robbery.

Chief Justice Rehnquist’s conclusion in Morrison was,

however, tolerably clear to the lay reader:

We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact we preserve one of the few principles that has been consistent since the [Commerce] Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”

Morrison,

,

. (citations and

footnote omitted). We might have had a forthright and responsible

debate, if our colleagues had adhered to their duty to express

reasons why they have chosen to allow McFarland to be convicted of

a federal crime.

as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.” Morrison,

,

. 97