U.S. v. Fabian, 01-1471.

• Decision Date: 05 December 2002
• Docket Number: No. 01-1471.,01-1471.
• Citation: 312 F.3d 550
• Parties: UNITED STATES of America, Appellee, v. Wayne FABIAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

312 F.3d 550

UNITED STATES of America, Appellee, v. Wayne FABIAN, Defendant-Appellant.

No. 01-1471.

United States Court of Appeals, Second Circuit.

Argued: March 6, 2002.

Decided: December 5, 2002.

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Roger Bennet Adler, New York, NY, for Appellant-Defendant Wayne Fabian.

Dwight C. Holton, Assistant United States Attorney for the Eastern District of New York (Alan Vinegrad, United States Attorney for the Eastern District of New York, Jo Ann M. Navickas, Assistant United States Attorney for the Eastern District of New York, on the brief), Brooklyn, NY, for Appellee the United States of America.

Before: McLAUGHLIN, F.I. PARKER, and POOLER, Circuit Judges.

Judge F.I. PARKER dissents in part in a separate opinion.

POOLER, Circuit Judge.

Wayne Fabian appeals from his convictions under the Hobbs Act, primarily arguing that the government failed to show an adequate connection between his crimes and interstate commerce to support federal jurisdiction. For the reasons given below, we find the government proved the nexus to interstate commerce necessary for Hobbs Act jurisdiction, and thus affirm Fabian's convictions.

BACKGROUND

We review a sufficiency of the evidence challenge "in the light most favorable to the government, drawing all inferences in the government's favor and deferring to the jury's assessments of witnesses' credibility." United States v. Arena, 180 F.3d 380, 391 (2d Cir.1999), cert. denied, 531 U.S. 811, 121 S.Ct. 33, 148 L.Ed.2d 13 (2000) (internal quotations omitted).

Fabian participated in two robberies. The first, on February 11, 2000, involved Fabian and co-conspirators Alex Taveras¹ and Luis Ramirez. The trio forced their way into the Bronx home of Emilio Veraz. The three believed Veraz was a loan shark, because Ramirez had identified Veraz to Taveras as "a loan-shark guy who lends out money." The three beat Veraz, restrained Veraz's son and a visiting neighborhood child, and stole several thousand dollars and some jewelry. At trial, Veraz testified he was a retired taxi cab driver, and also testified he lent $500 to a woman who repaid it in two installments of $300 and $200.

The second robbery, on March 7, 2000 in Queens, involved Fabian, Taveras, Reynaldo Perez and several other men. The target was Yessenia Gomez, common law wife of Juan Montoya. Perez told Taveras and Fabian that Montoya had stolen $300,000 in drug proceeds from drug dealers in Miami, and that the money was either in Gomez's Queens home or her mother's house in Manhattan. Perez was a friend of Montoya since elementary school. At the time of the robbery, Montoya was in prison. Fabian and Taveras forcibly entered Gomez's home, restrained her and her children, and searched the house for the money. When the pair could not find the cash they expected, Fabian kidnaped Gomez and headed off with her to her mother's house to look for cash, while Taveras stayed with the children. Fabian was captured after a police chase. At trial, the government offered into evidence two certificates of conviction: one for Montoya and one for Perez. The certificates showed Montoya and Perez were arrested together in 1990 and convicted of narcotics charges. Defense counsel objected to the admission of the certificates, but the district court permitted them for the purpose of showing Fabian would have believed Perez when Perez said Montoya possessed the drug proceeds.

The jury convicted Fabian of two counts of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951, one count of attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951, and one count of brandishing a weapon during a crime of violence in violation of 18 U.S.C. § 924(c). Fabian was sentenced principally to 168 months imprisonment on each of the Hobbs Act charges, to be served concurrently; and to 84 months imprisonment on the firearms charge, to be served consecutively.

Discussion

Sufficiency of the evidence

Fabian first argues the government failed to prove his crimes affected interstate commerce, a showing necessary to support the federal court's jurisdiction under the Hobbs Act. Our precedent permits the jurisdictional requirement of the Hobbs Act to be met by "a showing of a very slight effect on interstate commerce." United States v. Farrish, 122 F.3d 146, 148 (2d Cir.1997) (quotation and citation omitted). Fabian argues the Supreme Court's holdings in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), now require the government to prove a "demonstrable economic nexus" with interstate commerce to support Hobbs Act jurisdiction. Thus, he contends, "a local abduction, attendant to an attempted robbery of an individual ... without more, provides an insufficient basis to appropriately exercise federal criminal jurisdiction." Fabian seeks to reverse his convictions on the three Hobbs Act charges. In addition, Fabian argues his firearms charge must also be reversed because it is predicated on the Hobbs Act charge in count three of the indictment. For the reasons given below, we find our precedent remains unchanged by either Lopez or Morrison, and affirm Fabian's convictions.

Fabian "bears a very heavy burden" in challenging the sufficiency of the evidence. United States v. Scarpa, 913 F.2d 993, 1003 (2d Cir.1990) (quotation and citation omitted). "We must view the evidence in the light most favorable to the government and construe all possible inferences in its favor." United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir.1986).

The Hobbs Act provides:

[w]hoever 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 ... or both.

18 U.S.C. § 1951(a).

Our precedent requires the government make only a de minimis showing to establish the necessary nexus for Hobbs Act jurisdiction. "[T]he jurisdictional requirement of the Hobbs Act may be satisfied by a showing of a very slight effect on interstate commerce. Even a potential or subtle effect on commerce will suffice." Farrish, 122 F.3d at 148 (quotation and citation omitted). Thus, "all that need be shown is the possibility or potential of an effect on interstate commerce, not an actual effect." Arena, 180 F.3d at 390 (quotation omitted). "`Factual impossibility' is no defense to the inchoate offense of conspiracy under the Hobbs Act." United States v. Clemente, 22 F.3d 477, 480-81 (2d Cir.1994); see also United States v. Shareef, 190 F.3d 71, 75 (2d Cir.1999) (proof of potential effect on interstate commerce suffices for both conspiracy and substantive Hobbs Act offenses); United States v. Medina, 74 F.3d 413, 418 (2d Cir.1996) ("Many pre-existing circumstances may doom a conspiracy, without rendering the conspirators any less culpable for their acts.").

We previously rejected the proposition that Lopez, 514 U.S. at 567-68, 115 S.Ct. 1624, requires us to alter our de minimis standard for establishing Hobbs Act jurisdiction. Farrish, 122 F.3d at 148-49. In Lopez, the Supreme Court held that Congress unconstitutionally exceeded its power under the Commerce Clause in enacting the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(1)(A). Lopez, 514 U.S. at 561, 115 S.Ct. 1624. We held in Farrish that the Lopez Court distinguished between statutes requiring a particularized showing of federal jurisdiction, such as the Hobbs Act, and statutes lacking such an express requirement, such as the Gun-Free School Zones Act. Farrish, 122 F.3d at 149. Thus, we held "Lopez did not raise the jurisdictional hurdle for bring a Hobbs Act prosecution," and reaffirmed the de minimis standard. Id. at 148.

Our logic in analyzing Lopez's impact on Hobbs Act jurisdiction applies in our analysis of United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). In Morrison, the Supreme Court struck down a civil cause of action for gender-related violence created by the Violence Against Women Act ("VAWA"), 42 U.S.C. § 13981(b). Morrison, 529 U.S. at 616-17, 120 S.Ct. 1740. The Court found Congress' power under the Commerce Clause did not extend to "regulat[ing] noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." Id. at 617, 120 S.Ct. 1740. As in Lopez, however, the Court noted that § 13981(b) lacked a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce." Id. at 613, 115 S.Ct. 1624. The Court noted, with approval, that sections of VAWA containing jurisdictional elements have been upheld by various Courts of Appeal. Id. n. 5. As the Hobbs Act requires a particularized jurisdictional showing, we find Morrison does not affect our requirement that "the Government need only show a `minimal' effect on interstate commerce" to support Hobbs Act jurisdiction. Farrish, 122 F.3d at 149.

Applying the de minimis standard to the proof presented at Fabian's trial, we find the government met its burden. Even assuming arguendo that Fabian is correct in stating Veraz was not a loan shark and there is no proof Montoya stole drug proceeds, the fact that it was impossible to carry out the planned schemes does not bar Hobbs Act liability. Clemente, 22 F.3d at 480-81. What is legally relevant is whether at the time of the crime, Fabian believed he was robbing a loan shark and the proceeds of a drug deal, not whether the crimes actually involved a loan shark and the proceeds of a drug deal. There is sufficient evidence to support Hobbs Act jurisdiction. Taveras testified Ramirez had told Fabian that Veraz was a loan shark. Taveras also testified that...