U.S. v. Hanigan

• Decision Date: 19 July 1982
• Docket Number: No. 81-1262,81-1262
• Citation: 681 F.2d 1127
• Parties: 10 Fed. R. Evid. Serv. 1553 UNITED STATES of America, Plaintiff-Appellee, v. Patrick W. HANIGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1127

681 F.2d 1127

10 Fed. R. Evid. Serv. 1553

UNITED STATES of America, Plaintiff-Appellee, v. Patrick W. HANIGAN, Defendant-Appellant.

No. 81-1262.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 1982.

Decided July 19, 1982.

Alex A. Gaynes, Gaynes & Rockafellow, P.C., Tucson, Ariz., for defendant-appellant.

Frank D. Allen, Jr., Atty., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before ELY, SCHROEDER, and NORRIS, Circuit Judges.

SCHROEDER, Circuit Judge.

Patrick Hanigan appeals his conviction on three counts of aiding and abetting a robbery affecting commerce in violation of the Hobbs Act, 18 U.S.C. § 1951. His principal challenge is to the district court's jurisdiction to try him under that Act. He also contends that several evidentiary rulings by the district court were prejudicial, that his prosecution violated the double jeopardy clause of the Constitution, and that the pretrial identification procedure was impermissibly suggestive. We affirm the conviction.

FACTS

On August 18, 1976, three undocumented Mexican aliens entered the United States near Douglas, Arizona. The government's evidence showed that the men had previously entered this country and had found work as unskilled laborers in agricultural enterprises. On this occasion each had again crossed the border in search of agricultural work.

Defendant's brother Thomas found the men on Hanigan land and forced them to accompany him to the family ranch house, where he was joined by his father, George Hanigan, and the defendant Patrick. Over the course of several hours, the victims were brutally tortured and robbed of their few possessions. They were then told to run for the border; shotguns and pistols were fired at their backs, and two of the three sustained numerous pellet wounds.

All three Hanigans were charged in state court with various crimes, including assault, kidnapping and robbery. George Hanigan died before trial on those charges; Thomas and Patrick were acquitted on all counts. The brothers were later indicted on federal charges on October 10, 1979. The indictment charged them with robberies affecting commerce in violation of the Hobbs Act, 18 U.S.C. § 1951.

A first trial on these charges began in June, 1980, but the district court declared a mistrial when the jury was unable to reach a verdict. The second trial began on January 20, 1981. The district court ordered that separate juries hear the case because the government intended to offer evidence of an incriminating statement by Patrick which was not admissible against Thomas. Thomas was acquitted and Patrick was convicted on all three counts. The district court sentenced Hanigan to three years imprisonment on each count, the sentences to run concurrently.

Hobbs Act Jurisdiction

The Hobbs Act ¹ makes it a federal crime to obstruct, delay, or affect commerce "or the movement of any article or commodity in commerce, by robbery ...." 18 U.S.C. § 1951(a). As defined in the Act, commerce includes "all commerce between any point in a State ... and any point outside thereof; ... and all other commerce over which the United States has jurisdiction." 18 U.S.C. § 1951(b)(3).

As a jurisdictional predicate for this prosecution, the government has maintained and the indictment alleged that by crossing into Arizona to search for work, the victims were directly involved in "commerce" and thus fell within the ambit of the statute. Hanigan argues that labor (or laborers) cannot be considered an "article or commodity in commerce" within the meaning of the Hobbs Act. He also urges that if laborers are articles in commerce, undocumented alien laborers are not.

Thus the first issue we must address is whether the movement of laborers into this country is "commerce" within the scope of the Hobbs Act. Hanigan cites the exclusion of labor from the definition of "commerce" in the antitrust laws. 15 U.S.C. § 17. ² He argues that the reference in subsection (c) of the Hobbs Act to 15 U.S.C. § 17 means that labor is also excluded from Hobbs Act coverage. While 15 U.S.C. § 17 provides that "labor ... is not a commodity or article of commerce," the provision serves merely to exempt the activities of organized labor from the antitrust laws. See Allen Bradley Co. v. Local Union No. 3, International Brotherhood of Electrical Workers, 325 U.S. 797, 803-04, 65 S.Ct. 1533, 1537, 89 L.Ed. 1939 (1945); California State Council of Carpenters v. Associated General Contractors, Inc., 648 F.2d 527, 532-36 (9th Cir. 1981), cert. granted, --- U.S. ----, 102 S.Ct. 998, 71 L.Ed.2d 292 (1982); Cordova v. Bache & Co., 321 F.Supp. 600, 605-13 (S.D.N.Y.1970). The Hobbs Act, on the other hand, does not except labor from the definition of "commerce." Subsection (c) of the Hobbs Act merely makes it clear that the inclusion of labor within the Act does not affect the operation of the antitrust or labor laws.

The Hobbs Act definition of commerce is coextensive with the constitutional definition. The purpose of the Act is "to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence." United States v. Bagnariol, 665 F.2d 877, 894 (9th Cir. 1981) (per curiam) (quoting Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960)), cert. denied, --- U.S. ----, 102 S.Ct. 2040, 72 L.Ed.2d ---- (1981); see also United States v. Staszcuk, 517 F.2d 53, 58-59 (7th Cir.) (en banc) ("purpose of the Hobbs Act parallels the central purpose of the Commerce Clause itself"), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975). Thus, the only question is whether the movement of laborers may be regulated by Congress under the broad commerce power conferred by the constitution; whether labor also constitutes "commerce" for purposes of the antitrust laws is irrelevant.

The term "commerce" as used in the commerce clause, U.S.Const.art. I, § 8, means "intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190, 6 L.Ed. 23 (1824). Such intercourse includes the movement of persons. Edwards v. California, 314 U.S. 160, 173-74, 62 S.Ct. 164, 166-67, 86 L.Ed. 119 (1941). For example, an ordinance requiring collection of a registration fee from all workers impedes the free flow of commerce by creating a burden on the movement of migrant labor. Service Machine & Shipbuilding Corp. v. Edwards, 617 F.2d 70, 76 (5th Cir. 1980). ³ The movement of laborers across state or national boundaries constitutes commerce within the meaning of the Hobbs Act. Accordingly, the district court correctly instructed the jury that labor or laborers could be articles of commerce.

Hanigan's second attack on jurisdiction is that the victims were not protected by the Hobbs Act because they had entered the United States illegally. He urges that the term "commerce" as used in the statute does not include commerce that Congress has made illegal. ⁴

Hanigan points to nothing in the statute or legislative history, however, that would support his argument that "commerce" must be "legal" commerce. ⁵ The statute by its terms does not limit "commerce" to the flow of legally condoned articles. Nor could the commerce clause itself mean that an activity to be regulated by Congress must be legally permissible. It is anomalous to maintain that Congress could make undocumented entry into the United States-the movement of persons-unlawful, while at the same time maintaining that the same movement of persons is not "commerce over which the United States has jurisdiction"-the phrase which Congress used in the Hobbs Act. 18 U.S.C. § 1951(b)(3). Accordingly, we hold that the movement of undocumented alien laborers across a national boundary into this country is within the constitutional power of Congress to regulate, and thus constitutes commerce within the reach of the Hobbs Act.

Viewing the evidence in the light most favorable to the government, United States v. Friedman, 593 F.2d 109, 115 (9th Cir. 1979), it is uncontrovertible that defendant by robbery interfered with the victims' entry into the country and that the crimes prevented them from working as agricultural laborers in the United States. The government proved both a direct interference with and a potential threat to interstate commerce. ⁶

Evidentiary Rulings

Hanigan challenges several evidentiary rulings made by the district court. Each will be considered in turn. First, Hanigan contends that the district court erroneously excluded from evidence, on grounds of irrelevance, five photographs of a cattle-crossing culvert under a highway near the Hanigan ranch. ⁷

The district court's rulings on the relevance of evidence will be overturned by this court only for an abuse of discretion. United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir. 1981). "Evidence which is not relevant is not admissible." Fed.R.Evid. 402. Here, no evidence before the jury placed the victims at or near the culvert at any time. The photographs were therefore irrelevant and inadmissible. The district court properly excluded them from evidence.

Hanigan's second assignment of error concerns the trial testimony of Connie Wright, a waitress at a Douglas coffee shop, who had not testified at the first federal trial. She testified at the second trial that shortly after the incident she overheard Hanigan say to his companions in the restaurant, "(w)e fixed those son-of-a-bitching wetbacks." Hanigan contends that this evidence should have been excluded because his defense counsel was not notified until mid-trial of Wright's proposed testimony.

Hanigan does not argue that the evidence was inadmissible, but rather that it was uncovered so late that he was "unfairly surprised." The record does not establish any prejudicial...