U.S. v. Marrero

• Decision Date: 05 August 2002
• Docket Number: No. 01-2283.,No. 01-4078.,01-2283.,01-4078.
• Citation: 299 F.3d 653
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edwin MARRERO and David Hernandez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 653

299 F.3d 653 UNITED STATES of America, Plaintiff-Appellee,
v.
Edwin MARRERO and David Hernandez, Defendants-Appellants. No. 01-2283. No. 01-4078. United States Court of Appeals, Seventh Circuit. Argued April 5, 2002. Decided August 5, 2002.

Reid J. Schar (argued), Office of the U.S. Atty., Chicago, IL, for United States.

Richard B. Kapnick (argued), Sidley Austin Brown & Wood, Chicago, IL, for Edwin Marreno.

Robert S. Nathan, Chicago, IL, for David Hernandez.

BEFORE: FLAUM, Chief Judge, and POSNER and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

The defendants, "Little Bum" Marrero and "Fat Man" Hernandez, lured three drug dealers from Detroit to a rendezvous in Chicago on the pretext of selling them cocaine. When the dealers arrived, the defendants showed them what purported

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to be cocaine but was actually flour with a thin coating of cocaine, then robbed them at gunpoint of the $25,000 that the dealers had brought with them to make the purchase. The defendants were convicted by a jury of violating the Hobbs Act, 18 U.S.C. § 1951, and of a firearm offense, and received very heavy sentences — 324 months for Marrero, 192 months for Hernandez.

The Hobbs Act criminalizes robberies that obstruct or otherwise affect interstate or foreign commerce, and the main issue raised by this appeal is whether the robbery of the drug dealers had the requisite effect on commerce. We set to one side the defendants' arguments that the dealers may have been "from Detroit" only in the sense of having been born or raised there and that they may not have been dealers at all but merely purchasers for their own consumption. We are required to construe the facts as favorably to the government as the record permits, and that construal requires us to reject these anyway rather fanciful hypotheses about the robbery victims.

Of course, there is an element of paradox in a prosecution for obstructing illegal commerce (the government does not seek to defend the judgment on the ground that the defendants' scheme affected the interstate trade in flour); one might as an original matter have thought that were it not for concerns about encouraging violent activities, such as armed robbery, the obstruction of illicit commerce should be rewarded rather than punished. The less protection the law gives drug dealers, the higher the price of illegal drugs and so the smaller the quantity consumed — the very aim of the "war on drugs." But, quite apart from the fact that the defendants were also drug dealers, whose theft from other dealers might aid the defendants' drug dealings, any argument that the Hobbs Act, or Congress's commerce power (exerted to the full in that Act, Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Evans v. United States, 504 U.S. 255, 263 n. 12, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992); United States v. Peterson, 236 F.3d 848, 851-52 (7th Cir. 2001)), does not reach robberies that disrupt rather than promote illegal trafficking in drugs is foreclosed by the case law, e.g., United States v. Esposito, 771 F.2d 283, 286 (7th Cir.1985); United States v. Ambrose, 740 F.2d 505, 512 (7th Cir.1984); United States v. Jones, 30 F.3d 276, 285-86 (2d Cir.1994), and wisely not pressed by the appellants.

This case would be a very easy one for the government if, as in United States v. Thomas, 159 F.3d 296, 297-98 (7th Cir. 1998), and United States v. Jones, supra, 30 F.3d at 280, 285, the defendants had robbed a confidential informant of his "buy money." Such a robbery would interrupt a transaction in commerce (since all cocaine originates outside the United States), and, as it happens, a socially valuable one, since a "controlled buy" is an efficient method of apprehending drug dealers. See also United States v. Bailey, 227 F.3d 792, 795, 798 (7th Cir.2000). There was no interruption of a transaction in commerce in the present case, because the defendants had no drugs, only flour that was not for sale. (There was no suggestion in Thomas that the defendants did not have cocaine to sell to the confidential informant — so far as appears, they simply decided they would be better off with both the cocaine and the purchase money rather than with just the money.) Had our defendants not robbed the Detroit dealers, there would have been no transaction — at least with them.

But the qualification is vital. Had the defendants not lured the Detroit dealers to Chicago, those dealers would

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have used their $25,000 to buy cocaine elsewhere, and that purchase, a transaction in commerce whether it would have been made in Detroit or elsewhere because, as we said, all cocaine originates overseas, thus was thwarted, and commerce therefore obstructed, by the robbery. United States v. Thomas, supra, 159 F.3d at 297-98. (This...