143 F.3d 772 (2nd Cir. 1998), 98-1019, United States v. Alfonso

Docket Nº:Docket No. 98-1019.
Citation:143 F.3d 772
Party Name:UNITED STATES of America, Appellant, v. Ruben ALFONSO and Feli Gomez, Defendants-Appellees.
Case Date:May 14, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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143 F.3d 772 (2nd Cir. 1998)

UNITED STATES of America, Appellant,

v.

Ruben ALFONSO and Feli Gomez, Defendants-Appellees.

Docket No. 98-1019.

United States Court of Appeals, Second Circuit

May 14, 1998

Argued March 5, 1998.

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Thomas A. Arena, Assistant United States Attorney, Southern District of New York, New York City (Mary Jo White, United States Attorney, Joshua G. Berman, Craig A. Stewart, Assistant United States Attorneys, New York City, on the brief), for Appellant.

Jesse M. Siegel, Siegel & Heilbrun, New York City, for Appellee Feli Gomez.

Patrick Joyce, Fasulo, Friedson & Joyce, New York City, for Appellee Ruben Alfonso.

Before: OAKES, NEWMAN, and CABRANES, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

Defendants Ruben Alfonso and Feli Gomez were indicted on October 14, 1997 for conspiracy to commit a robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 ("Count One"), 1 and for using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c) 2 and 2 3 ("Count Two"). The United States District Court for the Southern District of New York (Robert L. Sweet, Judge ) dismissed Count One of the indictment on the grounds that "the Government has not adduced sufficient facts to establish a nexus between the robbery allegedly committed by Alfonso and Gomez and any obstruction of interstate commerce." The district court in turn dismissed Count Two because the allegedly flawed Count One was a necessary predicate to the firearm charge. Because we conclude that Count One of the indictment is facially valid, and that in the circumstances presented a challenge to the sufficiency of the evidence is not appropriately decided on a pretrial motion to dismiss, we reverse the order of the district court dismissing the indictment and releasing defendants from pretrial detention, and we remand with instructions to reinstate the indictment in its entirety.

I.

Defendants were arrested on September 25, 1997 pursuant to a criminal complaint alleging that defendants had "conspired to commit robbery ... and would thereby have

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obstructed, delayed and affected commerce and the movement of articles and commodities in commerce" in violation of the Hobbs Act. Specifically, the complaint alleged that, according to a confidential source, defendants learned in March 1997 "that Apartment 3B at 1838 Vyse Avenue, Bronx, New York ... contained a quantity of cocaine and money" and conspired with others "to rob the apartment and its inhabitant of the cocaine and money." The complaint further alleged that, according to a "victim eyewitness," in the early morning of March 25, 1997, three men attacked the resident of Apartment 3B (referred to in the complaint as "Victim 2"); after forcing their way into his apartment, one of the attackers struck Victim 2 in the head with a gun, causing lacerations that required seven stitches. A passerby (referred to in the complaint as "Victim 1") also allegedly reported having been grabbed by the attackers and held at gunpoint while they ransacked Apartment 3B. Victim 2 allegedly told police that he saw the attackers remove money from his wallet. According to the complaint, Victim 1 subsequently identified defendants from a police photographic array.

Defendants were indicted by the grand jury on October 14, 1997 on the Hobbs Act and firearm counts. 4 On December 3, 1997, defendants filed a motion to dismiss the indictment. They argued that Count One of the indictment should be dismissed on the grounds that the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), rendered the Hobbs Act facially unconstitutional, and, in the alternative, that the Hobbs Act was not intended by Congress to protect commerce in illegal commodities, such as narcotics.

In an order dated January 8, 1998, the district court rejected both arguments, concluding that they were foreclosed by controlling precedents of this Court. Nevertheless, the district court granted the motion to dismiss the indictment. It dismissed Count One on the basis that the government had "failed to satisfy the jurisdictional requirement of the Hobbs Act," a theory not advanced by defendants in their motion to dismiss, and neither briefed nor argued by any of the parties. The district court explained the basis for this ruling as follows:

[T]he Government has not adduced sufficient facts to establish a nexus between the robbery allegedly committed by Alfonso and Gomez and any obstruction of interstate commerce. The complaint alleges that Alfonso and Gomez, with their third accomplice, took money from the wallet of Victim amounting to less than $100. The Government has not alleged any facts that indicate that Victim was engaged in interstate commerce, or that these funds were to be used in a business owned by Victim . A confidential informant told the police that Alfonso and Gomez believed the [apartment at] 1838 Vyse contained cocaine and money. It is not charged that the victims of the robbery were drug dealers, or affirmatively alleged that cocaine or money used to purchase and distribute drugs were the subject of the theft. Application of the Hobbs Act to a simple robbery, however brutal, would render the jurisdictional element of the Act a nullity

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and negate the "first principles" of federalism recently cited by Lopez.

Having dismissed Count One of the indictment, the district court dismissed Count Two because--absent Count One--defendants were no longer charged with a "crime of violence ... for which [they could] be...

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