On Appeal from the United States District Court for the Eastern District of Pennsylvania (Crim. Nos. 08-01616-001, 08-0161-002, 08-0161-003) District Judge: Honorable J. Curtis Joyner
The opinion of the court was delivered by: Chagares, Circuit Judge.
Before: RENDELL, FISHER, and CHAGARES, Circuit Judges.
This is a consolidated appeal by three co-defendants, Glorious Shavers, Andrew White, and Jermel Lewis (collectively referred to as the "appellants"), who were convicted of robbery affecting interstate commerce, conspiracy to commit robbery affecting interstate commerce, witness tampering, and using and carrying firearms during and in relation to a crime of violence. We will vacate Shavers's and White's witness tampering convictions and Shavers's eight-year term of supervised release. We will uphold the three appellants' convictions on all other counts and will affirm Lewis's sentence. Finally, we will remand for the District Court to resentence Shavers and White in accordance with this opinion.
This case arose out of a robbery on November 8, 2005 at a single-family house in North Philadelphia. The house owner, Jeanette Ketchmore ("Jeanette"), had for several years run an unlicensed bar, or "speakeasy," out of her basement. At trial, she described her activity as a party at which family, friends, and acquaintances would socialize and occasionally play cards. The speakeasy was not open to the general public. Jeanette purchased alcohol at a retail store in Philadelphia and sold it without a license to her guests for $3-$4 per drink. The brands of alcohol sold included some that are manufactured outside of Pennsylvania such as Hennessy cognac, Gordon's gin, Seagram's gin, and Taylor's port wine.
When the appellants entered Jeanette's house on November 8, 2005 at 5:30 a.m., six to seven people were in the first floor dining room playing cards. The parties dispute whether alcohol sales had ceased for the night. The three appellants entered the residence displaying firearms and wearing dark-colored hooded sweatshirts with the hoods drawn tightly around their faces. The appellants forced the patrons into the basement and ordered them to lie down on the floor. One of the appellants went to the second floor and forced Jeanette's son, Rickey Ketchmore ("Rickey"), to come downstairs to join the patrons. The appellants then went through everyone's pockets and stole two cell phones, a wallet, and approximately $121 in cash. No money was stolen directly from Jeanette, however. The appellants also rummaged through the basement and first floor of the house. Jeanette testified that the appellants went through her refrigerator and kept asking where the "weed" (marijuana), "wet" (PCP), and "oil" (heroin or PCP) was.*fn1 Joint Appendix ("JA") 1168--69, 1217. They also asked Jeanette where "the money" was. Id. at 1167.
When the police arrived, the three appellants ran out of the house and down the street. White was seen tossing a silver gun as he ran. White and Shavers were arrested in the area soon thereafter. White had two cell phones that were stolen from the speakeasy patrons and $49 in cash, including twenty-nine one-dollar bills. Shavers had three live shotgun shells in his pocket and $87 in cash, including sixty-two one-dollar bills. After the police apprehended Shavers and White, they returned to Jeanette's house and asked eyewitnesses Alberto Vasquez and Brian Anderson whether they recognized the two men sitting in the police vehicles. Vasquez and Anderson identified Shavers and White as two of the three assailants. Lewis was apprehended years later after an investigation.
Shavers and White were originally charged with Pennsylvania offenses
and kept in state custody. On March 20, 2008, however, the United
States Attorney charged them with robbery affecting interstate
commerce, in violation of the Hobbs Act, 18 U.S.C. §§ 1951(a) and 2,
and using and carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. §§ 924(c) and 2.*fn2
On July 10, 2008, a superseding indictment added Lewis to the
first two counts, and also added charges against all three appellants
of attempts to intimidate, threaten, and/or corruptly persuade a
witness in an official proceeding, in violation of the Victim and
Witness Protection Act of 1982, 18 U.S.C. § 1512(b)(1). The witness
intimidation charges were largely based on telephone calls that the
appellants conducted on state prison telephones in which they made
incriminating comments. On August 20, 2009, the Government filed a
second superseding indictment adding additional witness tampering
counts and a count of conspiracy to commit robbery in violation of the Hobbs Act against all three appellants.
A joint trial of the three appellants commenced on September 9, 2009 in the United States District Court for the Eastern District of Pennsylvania. After six days of testimony, the jury found all three appellants guilty of the Hobbs Act and § 924(c) violations, and found Shavers and White guilty of three counts of witness tampering each. Lewis was acquitted of all witness tampering charges. After denying the appellants' motions for judgments of acquittal, the District Court sentenced Shavers to 144 months of incarceration with an eight-year term of supervised release, Lewis to 141 months of incarceration with five years of supervised release, and White to 196 months of incarceration with five years of supervised release. All three sentences included a mandatory minimum consecutive term of eighty-four months on the § 924(c) count. The appellants filed a timely appeal raising ten arguments that we will address in turn.*fn3
II. The Hobbs Act Convictions
Shavers and White first contend that the District Court erroneously instructed the jury that a robbery need only have a de minimis or potential effect on interstate commerce in order to violate the Hobbs Act. While the appellants acknowledge that our controlling precedent forecloses relief on this claim, they seek to preserve it for future review.
We exercise plenary review over a challenge to the legal accuracy of jury instructions. Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 245 (3d Cir. 2006). The Hobbs Act provides:
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.
18 U.S.C. § 1951(a). "Commerce" is defined as
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.
Due to the requirement that a Hobbs Act offense "obstructs, delays, or affects" interstate commerce, "the reach of the Hobbs Act is coextensive with that of the Commerce Clause of the United States Constitution." United States v. Walker, 657 F.3d 160, 179 (3d Cir. 2011) (quotation marks omitted). The Commerce Clause delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. In United States v. Lopez, which involved a challenge to the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(g)(1)(A), the United States Supreme Court held that there are "three broad categories of activity" that Congress may regulate under the Commerce Clause:
(1) "the use of the channels of interstate commerce[;]" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities[;]" and (3) "those activities having a substantial relation to interstate commerce." 514 U.S. 549, 558--59 (1995). The Lopez Court concluded that the possession of a gun in a local school zone did not fall into any of those categories. In particular, the regulated activity did not have a substantial relation to interstate commerce because "[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at 567.
The District Court in this case instructed the jury on the interstate commerce element as follows:
The third element that the Government must prove beyond a reasonable doubt is that the Defendant's conduct affected or could have affected interstate commerce. Conduct affects interstate commerce if it in any way interferes with[,] changes, alters the movement or transportation or flow of goods, merchandise, money or other property in commerce between or among the states. The effect can be minimal.
It is not necessary to prove that the Defendant intended to obstruct . . . delay or interfere [with] interstate commerce or that the purpose of the alleged crime was to affect interstate commerce. Further, you do not have to decide whether the affect on interstate commerce was to be harmful or beneficial to a particular business or to commerce in general. You do not even have to find that there was an actual effect on commerce. All that is necessary to prove this element is that the natural consequences of the offense potentially caused an effect on interstate commerce to any degree, however minimal or slight.
JA 2016 (emphasis added). Shavers and White argue that the District Court's instruction was incorrect. They interpret Lopez as holding that Congress may regulate only conduct that substantially affects interstate commerce, and may not regulate conduct that has a mere minimal or potential effect on interstate commerce.
Our decisions have consistently and firmly rejected that argument. See, e.g., United States v. Urban, 404 F.3d 754, 766 (3d Cir. 2005) ("[W]e have already rejected the argument that Lopez and its progeny require proof of a 'substantial effect' on commerce in an individual case in order to show a Hobbs Act violation."). We have held instead that "[i]f the defendants' conduct produces any interference with or effect upon interstate commerce, whether slight, subtle or even potential, it is sufficient to uphold a prosecution under [the Hobbs Act]." United States v. Haywood, 363 F.3d 200, 209--10 (3d Cir. 2004) (quotation marks omitted). A "reasonably probable effect on commerce, however minimal," is sufficient to meet the interstate commerce jurisdictional prerequisite under the Hobbs Act. Urban, 404 F.3d at 763--64; see also United States v. Clausen, 328 F.3d 708, 711 (3d Cir. 2003) ("[T]he District Court did not err when it instructed the jury that it need only find that each robbery had a minimal effect on interstate commerce.").
While we acknowledge that our long-standing precedent sets a rather low hurdle for the Government in Hobbs Act cases, we conclude that our interpretation of the interstate commerce jurisdictional requirement is supported by Supreme Court precedent. In Gonzales v. Raich, the Supreme Court upheld the application of provisions of the Controlled Substances Act, 21 U.S.C. § 801 et seq., that criminalize the manufacture, distribution, and possession of marijuana to intrastate growers and users of marijuana, holding that Congress possesses the "power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce." 545 U.S. 1, 17 (2005) (citing Wickard v. Filburn, 317 U.S. 111, 128--29 (1942)). Under the aggregation theory relied upon in Raich, the Commerce Clause supports federal regulation of an economic class of activity that, in the aggregate, substantially affects interstate commerce. Id. at 17--19. That is the case even where an individual crime on its own has only a minimal effect on interstate commerce. Id. at 17 ("[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." (quotation marks omitted)). Even a potential effect may suffice. Id. at 35 (Scalia, J., concurring) ("Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants."). We have opined that "the Hobbs Act regulates quintessentially 'economic' activities" because "property crimes like robbery and extortion are - unlike the possession of a gun in a school zone or gender-motivated violence - indisputably 'economic' under our post-Lopez precedents." Walker, 657 F.3d at 179. Like the statute in Raich, the Hobbs Act regulates an economic "class of activities" that, in the aggregate, has a substantial effect on interstate commerce. 545 U.S. at 17. The proper standard for such activity, therefore, is exactly as the District Court articulated it to the jury.
The three appellants further assert that, even under the standard as the District Court expressed it, the Government failed to present sufficient evidence that their crimes had an adequate effect on interstate commerce to meet the jurisdictional requirement in the Hobbs Act. On challenges to the sufficiency of the evidence, we apply "a particularly deferential standard of review." United States v. McGuire, 178 F.3d 203, 206 n.2 (3d Cir. 1999). We do not weigh the evidence or assess the credibility of the witnesses. Id. "[W]e must view the evidence in the light most favorable to the government, and will sustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quotation marks omitted). We "afford deference to a jury's findings, and draw all reasonable inferences in favor of the jury verdict." United States v. Moyer, 674 F.3d 192, 206 (3d Cir. 2012) (quotation marks omitted). We will overturn the verdict "only when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt." Id.
As we have just discussed, the effect on commerce of a Hobbs Act robbery may be shown by a "reasonably probable effect on commerce, however minimal." Urban, 404 F.3d at 763--64.Where the robbery "produces any interference with or effect upon interstate commerce, whether slight, subtle or even potential, it is sufficient to uphold a prosecution under [the Hobbs Act]." Haywood, 363 F.3d at 210 (quotation marks omitted). In United States v. Walker, for example, we held that the robbery of a drug dealer whose drugs originated in another state had a "direct nexus" to interstate commerce within the meaning of the Hobbs Act. 657 F.3d at 182. By robbing a drug dealer, the defendants "directly [sought] to obstruct the movement of a commodity in commerce." Id. at 181 (quotation marks and alterations omitted).
In United States v. Haywood, whose facts are analogous to the facts in this case, the defendant was convicted under the Hobbs Act of robbing a Virgin Islands tavern of approximately $50--$70. 363 F.3d at 202. We held that the interstate commerce nexus was satisfied because the tavern sold beer that was manufactured outside of the Virgin Islands. Id. at 211. Likewise, in United States v. Clausen, we held that there was a sufficient nexus to interstate commerce where the defendants had robbed six businesses that purchased supplies from other states, and/or had employees or customers from other states. 328 F.3d at 711--12. We underscored that "'the cumulative result of many Hobbs Act violations is a substantial effect upon interstate commerce,' and that substantial effect empowers Congress to regulate pursuant to the Commerce Clause." Id. at 711 (quoting United States v. Robinson, 119 F.3d 1205, 1215 (5th Cir. 1997)).*fn4
On this record, there was sufficient evidence from which a rational jury could find beyond a reasonable doubt that Jeanette was running a business that had the requisite nexus to interstate commerce. Although the speakeasy was not a licensed bar, it was selling alcohol and the people playing cards at the time of the robbery were its customers. Jeanette had been operating the speakeasy for "years" at the time of the robbery. JA 1157. In her testimony, Jeanette agreed that the speakeasy was a business and indicated that she was making a profit. Id. at 1156, 1163 ("[W]e would purchase more beer, alcohol, and sometimes I might have enough to pay a bill to help me with my - send my child to school."). Like in Haywood, Jeanette sold alcohol that was imported from out of state. Although that connection to interstate commerce is admittedly indirect, it is no more so than in the cases discussed above and it is a sufficient nexus to interstate commerce under our jurisprudence. See Urban, 404 F.3d at 761, 767; Haywood, 363 F.3d at 211; Clausen, 328 F.3d at 711--12; see also United States v. Elias, 285 F.3d 183, 189 (2d Cir. 2002) (holding that the interstate commerce
The Government also avers that White's and Shavers's possession of large numbers of one-dollar bills was consistent with the speakeasy prices of $3-$4 per drink and demonstrates that they absconded with business assets. The appellants respond that the possession of many one-dollar bills is more consistent with the victims' card playing. Either way, it was for the jury to decide, based on the other evidence, which inference to draw from the denominations. Our role is not to weigh the evidence with respect to such factual questions so long as there was some evidence presented from which a reasonable jury could have found the essential elements of the crime. requirement for a Hobbs Act violation was met where the defendant robbed a New York grocery store that sold goods purchased in New York but produced outside of New York because the robbery "depleted assets that might have been utilized to purchase out-of-state goods"); United States v. Mapp, 170 F.3d 328, 336 n.13 (2d Cir. 1999) (holding that the Hobbs Act jurisdictional nexus was met by the robbery of a delicatessen that sold goods produced out of state, without mentioning whether the goods were purchased from out-of-state or in-state suppliers).
There was also evidence here from which a rational jury could find beyond a reasonable doubt that the robbery had an effect, albeit slight or potential, on interstate commerce. For instance, Jeanette testified that, after the robbery, she limited her guests to friends and family and then shut down the operation completely a few months later. At least one speakeasy customer, Alberto Vasquez, chose not to return and spend his money at the speakeasy after the robbery. From that evidence, a jury could reasonably infer that the robbery caused the business to close. Causing a business engaged in interstate commerce to close has, or at least potentially has, an effect on interstate commerce. See United States v. Jimenez-Torres, 435 F.3d 3, 8 (1st Cir. 2006) (holding that the Government can satisfy the Hobbs Act interstate commerce requirement by showing that the robbery resulted in the closure of a business engaged in interstate commerce). Moreover, such conduct, in the aggregate, would have a substantial effect on interstate commerce. See Raich, 545 U.S. at 17--19. Although this robbery was of a small business that purchased alcohol sold in interstate commerce, if robberies occurred at and led to the closure of such establishments on a large scale, the effect on interstate commerce would be substantial. For that reason, the size of Jeanette's business and the fact that the appellants stole only $121 dollars, a wallet, and two cell phones did not make this crime too small to satisfy the de minimis standard. See Walker, 657 F.3d at 180 (holding that a robbery of $40 to $50 satisfied the de minimis standard); Haywood, 363 F.3d at 202, 211 n.7 (holding that the de minimis threshold was met by the robbery of $50 to $70).
The appellants maintain that the facts here are analogous to those in United States v. McGuire, in which the defendant was charged with a violation of the federal explosives statute, 18 U.S.C. § 844(i), for the destruction of a personal car that was used periodically by a small intrastate catering business. 178 F.3d at 211. We held that the Government failed to establish the requisite nexus to interstate commerce because there was no evidence as to how often the car was used for the business or that a container of orange juice from another state that was found in the car was related to the catering business. Id. at 211--12. Thus, "the jury was required to guess at" the connection between the car and the catering business. Id. at 211. McGuire is easily distinguishable from this case, where the jury was not left to guess at the connections between the victims of the robbery and the business, and between the business and interstate commerce. Additionally, it was undisputed in McGuire that the catering business did not lose money or customers due to the defendant's conduct. Id. at 211. Here, to the contrary, there was certainly adequate evidence from which a jury could infer that the robbery was an attempt to - and did in fact - affect a business operating in interstate commerce.
The appellants invite us to follow the Court of Appeals for the Sixth Circuit and impose a heightened interstate commerce requirement when the victim of the alleged crime is an individual rather than a business.In United States v. Wang, the Court of Appeals for the Sixth Circuit held that the Hobbs Act interstate commerce nexus was too attenuated where the defendant robbed the owners of a business in their home. 222 F.3d 234, 240 (6th Cir. 2000). The Court concluded that, when the Government seeks to establish a nexus between an individual victim and a business engaged in interstate commerce, "that connection must be a substantial one - not one that is fortuitous or speculative." Id. at 239--40.In Wang, some of the stolen money belonged to the victims' restaurant that operated in interstate commerce but, because the robbery was of a home, the Government needed to do more than show that the victims owned a business. Id. at 240.
The appellants also note cases in which the interstate commerce nexus was held to be too tenuous because the robbery was directed at an individual in his or her personal capacity rather than at a business. See United States v. Perrotta, 313 F.3d 33, 38--40 (2d Cir. 2002) (holding that the interstate commerce nexus was too attenuated where extortion was directed at a victim who worked for an entity engaged in interstate commerce, but was aimed at him in his personal capacity, not in his official capacity);United States v. Quigley, 53 F.3d 909, 910--11 (8th Cir. 1995) (holding that the robbery of two individuals en route to a liquor store did not have a potential effect on interstate commerce); United States v. Collins, 40 F.3d 95, 99--100 (5th Cir. 1994) (holding that the Hobbs Act did not apply to the robbery of a computer company executive in his home, even though the crime may have prevented him from getting to work or making business calls because his "only connection with interstate commerce was his employment by a business engaged in interstate commerce"). The appellants further argue that the connection must be even stronger when a home is robbed. Indeed, we have exercised caution when assessing a Hobbs Act prosecution for the robbery of a home. Jimenez-Torres, 435
F.3d at 7--8 ("Where . . . the crime concerns the robbery of a home rather than of a business, we approach the task of applying the de minimus standard with some caution, lest every robbery (which by definition has some economic component) become a federal crime.").
We decline to adopt the heightened standard set forth in Wang. In this circuit, a robbery under the Hobbs Act need only have a "reasonably probable effect on commerce, however minimal." Urban, 404 F.3d at 763--64. The "substantial" connection required in Wang has no basis in our case law and adopting it would contradict our adherence to the requirement that a robbery need only "produce any interference with or effect upon interstate commerce, whether slight, subtle or even potential," in order to support prosecution under the Hobbs Act. Haywood, 363 F.3d at 210 (quotation marks omitted).
Moreover, Wang and the other cases in which the robberies were directed at individuals in their personal capacity rather than at businesses are inapposite. The appellants here did not rob individuals in their personal capacity or in their homes. To the contrary, the robbery occurred in Jeanette's place of business, her customers were victimized and robbed, and there was evidence that the robbery targeted business assets. Testimony from customers of the speakeasy indicated that the gatherings at Jeanette's were not merely social events with friends. For instance, Vasquez testified that Jeanette's house was "a place where people would go after time inside the bars that they closed up at 2:00. You stop in for a couple drinks. It's known on the streets as a speakeasy." JA 962--63. Likewise, Anderson testified that the basement was "set up like a bar" and that "it was a speakeasy." Id. at 871, 899. Even if we assume that alcohol was no longer being sold at the time of the robbery, that disputed fact does not alter our conclusion, as the reason the victims were in Jeanette's house was due to her business selling alcohol and they were still playing cards in the dining room when the robbery occurred. Thus, there was sufficient evidence that appellants robbed individuals, but in their capacity as customers of a business.
There was also evidence in the record from which a rational jury could conclude that the appellants targeted the assets of Jeanette's business, not solely the customers. The appellants had a meeting the night before the robbery in which they learned about a house with "a lot of money in it." JA 1430. During the robbery, they asked Jeanette where "the money" was and rummaged through her refrigerator. App. 1167--69. The nexus to interstate commerce in this case was, therefore, more direct than in Wang and the other cases cited by the appellants. See Walker, 657 F.3d at 181 (holding that the connection between the robbery and interstate commerce was "much more direct" than in Wang because, at the time of the robbery, the victim in Walker was selling illegal drugs that had traveled through interstate commerce).
We recognize that this case stands at the outer limit of Hobbs Act jurisdiction and it is far from obvious which cases are purely matters for state prosecution. The Hobbs Act interstate commerce question must be resolved on a case-by-case basis. See Lopez, 514 U.S. at 561 (noting that a "case-by-case inquiry" is undertaken for statutes containing a jurisdictional element). When we view the evidence in this case in the light most favorable to the Government, we ...