U.S. v. Hickman

• Citation: 179 F.3d 230
• Decision Date: 21 June 1999
• Docket Number: No. 97-40237,97-40237
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Masontae HICKMAN; Markus D. Chopane; Jyi R. McCray; Edwin T. Limbrick; Edmond Gasaway, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 230

179 F.3d 230

UNITED STATES of America, Plaintiff-Appellee, v. Masontae HICKMAN; Markus D. Chopane; Jyi R. McCray; Edwin T.

Limbrick; Edmond Gasaway, Defendants-Appellants.

No. 97-40237.

United States Court of Appeals, Fifth Circuit.

June 21, 1999.

Michael R. Dreeben, U.S. Dept. of Justice, Washington, DC, Paul E. Naman, John B. Stevens, Jr., Keith Fredrick Giblin, Beaumont, TX, for Plaintiff-Appellee.

Frank Warren Henderson, Amy R. Blalock, Tyler, TX, for Hickman.

Richard Ellis Turkel, Turkel, Dumas & Lebleu, Orange, TX, for Chopane.

Thomas Alan Chambers, Liberty, TX, for McCray.

Louis Dugas, Jr., Orange, TX, Jay Edward Tantzen, Bridge City, TX, for Limbrick.

Douglas Milton Barlow, Beaumont, TX, for Gasaway.

Appeals from the United States District Court for the Eastern District of Texas; Thad Heartfield, Judge.

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

PER CURIAM:

By reason of an equally divided en banc court, we affirm all the counts of conviction against all appellants, and we affirm the sentences of all appellants except Chopane. For the reasons relating to Chopane's sentence set out in the panel opinion, see United States v. Hickman, 151 F.3d 446, 460-62 (5th Cir.1998), reh'g granted and opinion vacated, 165 F.3d 1020 (5th Cir.1999), we unanimously vacate Chopane's sentence and remand for resentencing.

PATRICK E. HIGGINBOTHAM, Circuit Judge, with whom E. GRADY JOLLY, EDITH H. JONES, JERRY E. SMITH, DUHE, RHESA HAWKINS BARKSDALE, EMILIO M. GARZA and DeMOSS, Circuit Judges, join, dissenting:

Between March and June 1994, various combinations of the appellants robbed a Subway Sandwich Shop in Beaumont of $230, a Church's Chicken restaurant in Jasper of $1848, an AutoZone automobile parts store in Beaumont of at least $1300, a Church's Chicken restaurant in Beaumont of $1160, a Dairy Queen restaurant in Silsbee of $1300, and a Hardee's restaurant in Beaumont of $2000. An additional robbery was unsuccessful. When the robberies escalated to a killing, they drew attention in deep East Texas. Although state charges were filed, the United States Attorney obtained federal indictments. The state charges were then not pursued. Equally divided, the court today affirms convictions under the Hobbs Act for these purely local robberies.

I

We believe that the Hobbs Act prosecutions exceeded Congress's authority, and we respectfully dissent from this aspect of the court's judgment. ¹ Our concern today is not with the settled principle that Congress may regulate criminal conduct with a substantial effect on interstate commerce. Our difficulty is rather with what counts in determining substantial effect. 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, 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. Taking a child's lemonade is as potentially covered as any other robbery, at least as long as we are free to aggregate all robberies. The Hobbs Act offers no "regulatory scheme" which "could be undercut" if individual robberies were not aggregated. United States v. Lopez, 514 U.S. 549, 561, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). 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.

If one could aggregate robberies under the Hobbs Act to satisfy the constitutional demand of a substantial effect on commerce, there would be no reason one could not aggregate murders, or other felonies, to sustain general federal jurisdiction over all crimes. A great reduction in crimes generally would obviously have a cumulatively large effect on interstate commerce. As Chief Justice Marshall said in Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 5 L.Ed. 257 (1821), however, "Congress has ... no general right to punish murder committed within any of the states," and "[i]t is clear, that Congress cannot punish felonies generally." Id. at 426, 428. Without some judicially enforceable outer limits to the aggregation theory, "it is difficult to perceive any limitation on federal power, even in areas such as law enforcement ... where States historically have been sovereign." Lopez, 514 U.S. at 566, 115 S.Ct. 1624.

The government offers no assistance in any effort to locate the limits of its power. The Solicitor General did not offer in brief or oral argument any principled limit upon federal authority to prosecute local robbery or the taking of money by force--even from a hypothetical five-year-old's lemonade stand. Although the government conceded that the Supreme Court reaffirmed in Lopez that there are limits, it claimed to be unable to locate those limits beyond the redoubt that at some point the nexus to interstate commerce becomes too attenuated.

We think that the tie that binds together disparate activities must be made of stronger stuff. Aggregation demands connection. The principles that we are about to describe are no more than the underlying theme of past decisions, the by-product of an effort to find a coherent path that connects them and would justify myriad federal regulatory schemes. Its modesty aside, we believe that it offers a principled and judicially enforceable limit.

II

As the Supreme Court summarized in Lopez, there are "three broad categories of activity that Congress may regulate under its commerce power." 514 U.S. at 558, 115 S.Ct. 1624. "First, Congress may regulate the use of the channels of interstate commerce." Id. This power is inapplicable here. A robbery victim, unlike a river or highway, does not ordinarily provide a means by which goods can move. "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." Id. This is also inapplicable, because even when a robbery victim is a store, a store is not an instrumentality of commerce, like a boat or a car, and, though it does business in interstate commerce, it is not itself in interstate commerce.

The third category is the one we must address with the greatest care here. The grant of authority to Congress, by the Commerce Clause, "includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." Id. at 558-59, 115 S.Ct. 1624 (citation omitted). Yet it is not always necessary that the activities of the parties to the litigation themselves substantially affect commerce. Since Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), the Supreme Court has recognized an aggregation principle, by which Congress may reach an instance of an activity that itself does not "substantially affect" commerce if a myriad of such instances in the aggregate have a substantial effect.

This principle, though, does not explain what activities can be aggregated when we are to add the effects of discrete acts. We recognize the dangers of undue abstraction, but without some account of what it means to aggregate, the aggregation principle becomes disconnected from the root idea that some individual acts can be regulated because they are meaningfully part of some greater whole. We would hold that activities may be aggregated where the interactive play of their effects is such that regulation requires the ability to reach individual instances of the activity to be effective.

The keystone is not similarity in some essentialist sense. Whatever the strength of Professor Westen's observations about the concept of equality, the concept of similarity is "both empty and confusing: 'empty' in that it derives its entire meaning from normative standards that logically precede it; 'confusing' in that it obscures the content of the normative standards that logically precede it." Peter Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 Mich. L.Rev. 604, 604 (1983). Merely because one robbery is similar to another in that both are members of the legislatively-selected class of activities that constitute robbery does not mean that we should examine all robberies as a group for constitutional purposes.

Rather, at the least, individual acts cannot be aggregated if their effects on commerce are causally independent of one another. That is, if the effect on interstate commerce directly attributable to one instance of an activity does not depend in substantial part on how many other instances of the activity occur, there is an insufficient connection--in other words, an interactive effect--and the effect of different instances cannot be added. If, on the other hand, the occurrence of one instance of the activity makes it substantially more or less likely that other instances will occur, then there is an interactive effect and the effects of different instances can be added. It is this principle that we believe is meant when the Supreme Court speaks of a "class of activities." E.g...