U.S. v. Alfonso

Decision Date14 May 1998
Docket NumberDocket No. 98-1019
Citation143 F.3d 772
PartiesUNITED STATES of America, Appellant, v. Ruben ALFONSO and Feli Gomez, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

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 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 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 prosecuted in a court of the United States," a necessary element of the § 924(c) offense charged in Count Two of the indictment. 5

On January 9, 1998, the government sought and was granted permission to move for reconsideration of the district court's order dismissing the indictment. That same day, the district court heard, and denied, the government's oral motion for reconsideration. The court also granted defendants' motion for release from pretrial detention but stayed execution of the release order until January 14, 1998 to allow the government to pursue a further stay of the release order from this Court, pending an appeal of the order dismissing the indictment. On January 14, 1998, this Court issued a temporary stay of the release order until we could hear oral argument on the government's motion for a further stay pending appeal of the order dismissing the indictment. On January 20, 1998, we granted the government's motion for a stay of the release order, and we scheduled an expedited appeal of the district court's order dismissing the indictment. The stay remains in effect, and defendants remain in pretrial detention.

II.

We have jurisdiction to hear this appeal under 18 U.S.C. § 3731. 6 Because the district court's dismissal of the indictment raises questions of law, our review is de novo. See United States v. Morgan, 51 F.3d 1105, 1110 (2d Cir.1995).

As an initial matter, we note that the district court correctly rejected the grounds urged by defendants for dismissal of Count One of the indictment. Defendants' argument that the Supreme Court's decision in United States v. Lopez rendered the Hobbs Act unconstitutional was rejected by this Court in United States v. Farrish, 122 F.3d 146 (2d Cir.1997), in which we upheld a Hobbs Act conviction in the face of a Lopez challenge. See id. at 148-49. As for defendants' suggestion that the Hobbs Act applies only to interstate commerce in legal commodities, we have likewise previously held, in United States v. Jones, 30 F.3d 276 (2d Cir.1994), that "[i]t is of no moment ... that the commodity traveling in interstate commerce is illegal under federal law.... [T]he Hobbs Act is not confined either by its language or its legislative history to require some effect on goods traveling legally in interstate commerce." Id. at 286.

Having properly rejected these arguments, the district court nevertheless dismissed Count One of the indictment on the ground that the government had "failed to satisfy the jurisdictional requirement of the Hobbs Act." On appeal, the government counters that, to survive a motion to dismiss, it need only establish that the indictment is valid on its face. It argues that the indictment handed down by the grand jury in this case is sufficient and that the case should go to trial, where the government will be put to its proof on every element of the charged Hobbs Act offense, including the jurisdictional element.

It is well settled that "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). We have explained that an indictment must "charge[ ] a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events." United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.1992). Nevertheless, "an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." Id. (internal quotation marks omitted).

We have no doubt that Count One of the indictment in the instant case meets these basic pleading requirements by accurately stating the elements of the offense charged and the approximate time and place of the robbery that defendants allegedly conspired to commit, thereby providing sufficient detail to allow defendants to prepare a defense and to invoke the protection of the Double Jeopardy Clause of the Fifth Amendment against any subsequent prosecution for the same offense. The Hobbs Act provides that "[w]hoever in any way or degree...

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