U.S. v. Min Nan Wang

• Decision Date: 17 September 1999
• Docket Number: No. 98-6490,98-6490
• Citation: 222 F.3d 234
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Min Nan Wang, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 234

222 F.3d 234 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Min Nan Wang, Defendant-Appellant.

No. 98-6490

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 17, 1999

Decided and Filed: August 3, 2000

Appeal from the United States District Court for the Middle District of Tennessee at Cookeville. No. 96-00008--Thomas A. Wiseman, Jr., District Judge.

Henry A. Martin, FEDERAL PUBLIC DEFENDER'S OFFICE, Nashville, Tennessee, for Appellant.

Harold B. McDonough, Jr., ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

Before: BATCHELDER and GILMAN, Circuit Judges; HOOD, District Judge.^*

BATCHELDER, J., delivered the opinion of the court, in which GILMAN, J., joined. HOOD, D. J. (pp. 241-47), delivered a separate concurring opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Min Nan Wang appeals his convictions of robbery affecting interstate commerce in violation of 18 U.S.C. § 1951 and of using and carrying a firearm in relation to a crime of violence (robbery) in violation of 18 U.S.C. § 924(c)(1). For the reasons that follow, we reverse these convictions.

I

Paul and Patricia Tsai are the owners of the China Star Restaurant in Cookeville, Tennessee. The China Star purchases meat and seafood from out-of-state suppliers approximately twice per month. On September 11, 1995, Mrs. Tsai closed the restaurant at approximately 9:00 p.m. and drove to her home in Algood, Tennessee, followed by Mr. Tsai in a separate car. She took with her $1200 from the cash register, $900 of which she intended to deposit in the restaurant's bank account the next morning. Mrs. Tsai drove into the garage of her home and then entered the house, placing the money from the restaurant on the dining room floor. She then went to her bedroom, where, unbeknownst to her, Wang, who had broken into the house sometime earlier, was lurking. Wang grabbed Mrs. Tsai from behind and told her in Chinese to be quiet. When Mrs. Tsai resisted, Wang hit her on the head with a hard object, handcuffed her and put something over her face, telling her to shut up or he would kill her. He then pulled her into the bathroom, deposited her in the bathtub, and secured her to a railing on the wall next to the bathtub. Mrs. Tsai recognized Wang's voice because he had once worked as a cook in her restaurant.

As Mr. Tsai parked his car in the garage he heard his wife screaming. When he entered the house, Wang's accomplice attacked him from the side, hitting him in the head with a hard object. The accomplice took him to the bedroom closet, handcuffed him to the clothes rail and threatened to kill him unless Tsai told him where the money in the house was. The assailant showed him a gun, loaded it in front of him, and pointed it at his head.

By this time, Wang had placed tape on Mrs. Tsai's mouth. He told her repeatedly, "Your money or your life." Wang and his accomplice left their victims on several occasions to confer in a dialect that neither of the Tsais could understand. Each time Wang returned from meeting with his accomplice, he would demand money from Mrs. Tsai. Mrs. Tsai eventually told Wang about $3000 she had earlier withdrawn from her personal account and left in an envelope on her dining room table. Before the pair left the house, Wang's accomplice moved Mr. Tsai from the bedroom closet to the utility room. The robbers drove away in the Tsais' Toyota Corolla automobile.

Wang was later arrested in Chamblee, Georgia, pursuant to a Putnam County, Tennessee, warrant for especially aggravated robbery, especially aggravated kidnapping, and especially aggravated burglary. On August 21, 1996, a federal grand jury returned a four-count indictment charging Wang with robbery affecting interstate commerce in violation of 18 U.S.C. § 1951 (Count I); using and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1) (Count II); carjacking in violation of 18 U.S.C. § 2119 (Count III); and transporting a stolen motor vehicle in interstate commerce, in violation of 18 U.S.C. § 2312 (Count IV). Wang was also charged with aiding and abetting under 18 U.S.C. § 2 as to all four counts.

The case was tried without a jury. The district court granted Wang's motion for judgment of acquittal on Count III of the indictment and found Wang guilty of the remaining counts. The court sentenced Wang to twenty-four months on Counts I and IV, the robbery and the interstate transportation of stolen motor vehicle counts, followed by five years on Count II for the violation of 18 U.S.C. § 924(c). In handing down this sentence, the district court departed downward ten levels from a total offense level of 26, finding that Wang had been subjected to abuse and threats by individuals who had smuggled him into the United States, that he had been shabbily treated by the United States criminal justice system, and that his offense conduct was aberrational.

Wang timely appealed. He challenges only his convictions with respect to Counts I and II.

II

Wang first assails his conviction for robbery affecting interstate commerce in violation of 18 U.S.C. § 1951. That statute, the Hobbs Act, provides in relevant part:

Whoever 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 not more than twenty years, or both.

18 U.S.C. § 1951(a). Wang maintains that, in light of United States v. Lopez, 514 U.S. 549 (1995), insufficient evidence existed to support a finding that his robbery affected interstate commerce. The district court expressed a certain level of discomfort with its conclusions in this regard, noting:

This Court finds that there is no effect on interstate commerce beyond an absolute de minimis effect of $1,200. There is no proof that Dr. and Mrs. Tsai closed the restaurant, that they were unable to order any further goods from out of state. There is no evidence of an [e]ffect upon interstate commerce.

Nevertheless, the court decided that precedent from this circuit compelled a finding of guilt with respect to Count I. We review the sufficiency of the evidence supporting Wang's conviction by determining "whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Brown, 959 F.2d 63, 67 (6th Cir. 1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Historically, we have erected a rather low threshold for determining whether robbery directed at a business establishment will give rise to federal criminal jurisdiction under § 1951. To support a conviction under the Hobbs Act, we have required the government to demonstrate nothing more than a de minimis effect on interstate commerce. See United States v. Harding, 563 F.2d 299, 302 (6th Cir. 1977). "There is no requirement that there be an actual effect on interstate commerce--only a realistic probability that [an offense] will have an effect on interstate commerce." United States v. Peete, 919 F.2d 1168, 1174 (6th Cir. 1990) (emphasis omitted). Thus, for example, we have upheld a Hobbs Act conviction where the defendant attempted to steal between $7,000 and $8,000 from a tavern that purchased goods from local distributors who in turn purchased goods from outside the state. See Brown, 959 F.2d at 65. Had the heist been successful, we noted, there was a "realistic probability that the depletion of the bar's assets would have affected the amount of its purchases of beer having moved through interstate commerce." Id. at 68.

The jurisprudential landscape has not much changed in the wake of Lopez, the landmark case that struck down the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), as an invalid exercise of Congress's power under the Commerce Clause. See Lopez, 514 U.S. at 551. Facial constitutional challenges to the Hobbs Act followed close on the heels of Lopez. In turning away the first of these in United States v. Valenzeno we remarked in dicta that "[i]f Lopez indicates that the Commerce Clause gives Congress less power than was previously thought to be the case, the proper remedy would be to give the statute a narrower interpretation, or to require a more substantial jurisdictional nexus, not to hold facially invalid an Act of Congress." Valenzeno, 123 F.3d 365, 368 (6th Cir. 1997). Ultimately, however, "[w]e join[ed] our sister circuits and [held] that the de minimis standard for the interstate commerce effects of individual Hobbs Act violations survived Lopez." United States v. Smith, 182 F.3d 452, 456 (6th Cir. 1999).

The Lopez Court had recognized that the commerce power includes regulation of activities that are connected with a commercial transaction which, viewed in the aggregate, substantially affects interstate commerce. Lopez, 514 U.S. at 561. On this basis, we decided that Lopez did not require realignment of the Hobbs Act's jurisdictional nexus because individual instances arising under the statute could, through repetition, have a substantial effect on interstate commerce. See Smith, 182 F.3d at 456. So in United States v. Smith, we upheld the Hobbs Act conviction of a defendant who robbed various Michigan "party stores" of sums in the low four figures, saying, "By proving that the stores Smith robbed did substantial business in beer, wine, and tobacco products, and that virtually none of such products originate in Michigan, the government met its burden." Id.

Even as broadly phrased as our precedents are, however, they do not compel the result that the district court reluctantly reached in this case. As with "the overwhelming majority of cases involv...