On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Criminal No. 09-cr-00574-003 (Honorable J. Curtis Joyner)
The opinion of the court was delivered by: Scirica, Circuit Judge.
Before: SCIRICA, GREENAWAY, JR. and NYGAARD, Circuit Judges.
Clarence Powell was convicted under the Hobbs Act, 18 U.S.C. § 1951, for two robberies of business owners in their homes. He challenges the sufficiency of the evidence to establish that the robberies affected interstate commerce and the jury charge. At issue is whether a different standard governs the Act's jurisdictional requirements when the robbery of business proceeds occurs in the business owner's home rather than on business premises.
In the summer of 2008, according to the testimony of Powell's cousin and co-defendant Michael Lassiter, he and Powell engaged in a series of home robberies of college students and drug dealers in North Philadelphia. Powell and Lassiter decided their crimes were attracting too much attention from law enforcement. They determined instead to rob business owners by following them from their retail stores to their homes, reasoning that there would be less security, fewer witnesses, and more money from the business in owners' houses than in their stores. They specifically targeted immigrant business owners in the belief that those they termed "Chinese people" would keep business proceeds at home because they did not use banks.
In November 2008, Powell, Lassiter, and co-defendant Troy Hill cased
Star Wigs, a store on 52nd Street in West Philadelphia, and decided to
rob the owner when they saw the store's brisk business. Star Wigs was
owned by Y.B., a female immigrant from Korea who would take home cash
from the business each evening to later deposit in the bank. The store
sold merchandise, principally wigs and hair care products, from
multiple out-of-state suppliers, including suppliers in New York, New
Jersey, and Illinois. On December 1, Powell, Lassiter, and Hill
followed Y.B. as she
drove from Star Wigs to her home in Broomall, Pennsylvania. The three
men, wearing bandanas over their faces and brandishing two handguns,
invaded the home, beat and tied up Y.B. and her husband, and demanded
money. The robbers seized $250-$300 in cash from the store's daily
sales from Y.B.'s sock, and approximately $2000 in cash from store
sales in a jar on the refrigerator, which Y.B. intended to deposit in
the bank to cover backdated checks for store merchandise.*fn1
They also took credit cards, a handgun, jewelry, handbags,
family heirlooms, and $1200 in cash that belonged to Y.B.'s husband.
Also in November 2008, Powell, Lassiter, and Hill cased Dollar Plus Discount, a store located across 52nd Street from Star Wigs, similarly observing a large volume of business. Dollar Plus was owned by B.S. and his wife, immigrants from Bangladesh, and purchased merchandise from out-of-state suppliers, including electronics and other items from Baltimore, Maryland. B.S. transported cash and credit card receipts from the store to his home each night in a clear plastic box, where he kept them overnight. In late November, Powell, Lassiter, and Hill followed B.S. and his wife from Dollar Plus to their home in Upper Darby, Pennsylvania. Several weeks later, on December 18, the three men, along with Alexis Byrd-Arroyo, Lassiter's girlfriend, returned to B.S.'s house armed with two handguns and a sawed-off shotgun. Powell, Lassiter, and Hill hid at the back of the house and assaulted two of B.S.'s adult daughters when they came home, pushing them inside at gunpoint and demanding their parents' money.*fn2 One of the daughters led Lassiter upstairs to the plastic box with receipts and petty cash from the business.*fn3 The robbers took this box along with personal electronics and additional cash, pushed the women into a room, threatening to shoot them if they came out, and left.
B.S.'s daughters then called the police, who put out a radio alert for a robbery in progress. Within thirty seconds of the dispatch, Upper Darby police on patrol a few blocks from B.S.'s house spotted a Ford Crown Victoria driving rapidly toward Philadelphia. They tailed the car into the city and recorded its license plate, but lost the car in traffic. Upper Darby police relayed this information to the Philadelphia police, who later located and set up surveillance on the parked vehicle. Philadelphia police arrested Byrd-Arroyo when she returned to the car, and Upper Darby police obtained a search warrant for the vehicle. Inside they discovered a handgun, a sawed-off shotgun, a plastic container with Dollar Plus receipts and petty cash, and other valuables. The victims of the December 18 robbery identified the items recovered as proceeds of the robbery. Based on information from Byrd-Arroyo, police subsequently arrested Powell, Lassiter, and Hill.
In March 2010, a grand jury in the Eastern District of Pennsylvania returned a five-count indictment against Clarence Powell: one count of conspiracy to interfere with interstate commerce by robbery in violation of 18 U.S.C. § 1951(a), two counts of interference with interstate commerce by robbery in violation of 18 U.S.C. § 1951(a), and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Powell proceeded to trial. At the close of the evidence, the District Court held a charging conference with trial counsel. Powell moved to dismiss the indictment under Fed. R. Crim. P. 29 for insufficient evidence to establish the effect on interstate commerce. The District Court denied the motion. Over the defendant's objection, the court charged the jury with a modified version of the Third Circuit model jury instruction on the element of "affecting interstate commerce" required for a Hobbs Act conviction. The jury convicted Powell on all five counts. The District Court sentenced Powell to 697 months' imprisonment,*fn4 with five years' supervised release, restitution of $20,762.55, and a special assessment of $500. Powell timely appealed.*fn5
On appeal, Powell challenges the sufficiency of the evidence to satisfy the effect on interstate commerce element required for conviction under the Hobbs Act, as well as the jury instructions on this element. These challenges raise a similar issue: namely, whether the robbery of an individual in her home requires proof of a more ...