U.S.A. v. Peterson & Sandoval

• Decision Date: 04 January 2001
• Docket Number: Nos. 99-3967,s. 99-3967
• Citation: 236 F.3d 848
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. George Peterson and Pedro Sandoval, Defendants-Appellants. & 99-4159
• Court: U.S. Court of Appeals — Seventh Circuit

Page 848

236 F.3d 848 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. George Peterson and Pedro Sandoval, Defendants-Appellants.

Nos. 99-3967 & 99-4159

In the United States Court of Appeals For the Seventh Circuit

Argued September 19, 2000

Decided January 4, 2001

Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. Nos. 98-CR-193 & 98-CR-167--Rudy Lozano, Judge. [Copyrighted Material Omitted]

Before Bauer, Manion, and Kanne, Circuit Judges.

Bauer, Circuit Judge.

Pedro Sandoval and George Peterson directly appeal their convictions for robbery and attempted robbery affecting interstate commerce and carrying a firearm during the commission of these crimes. We reverse these convictions.

BACKGROUND

Members of the Latin Kings gang learned that James Estep, a man in his mid-sixties, sold marijuana from his Hammond, Indiana home. In January 1997 armed with this information and weapons, Pedro Sandoval, George Peterson, and four others, all gang members, robbed Estep in his home. The robbers successfully carried away thirty pounds of bricked marijuana, about $18,000 cash, and three guns. Estep, an avid gun collector, housed well over thirty guns in a gun case he built. Worried about the discovery of his drug business, Estep did not report the robbery to the police. He did, however, report that two guns had been stolen from his van.

The gang members divided the booty among them. Basking in their first success, Peterson, Sandoval, and another gang member returned to Estep's in February. This time they were thwarted by Estep's daughter, Katherine Bohlke, who met them at the door with a gun. Peterson fired his gun, hitting Bohlke in the shoulder. As the gang members fled, Peterson tripped, causing his gun to discharge again. The bullet pierced a neighbor's wall, killing Steven Bodoki, a visitor to that home. This time Estep could not avoid the police. In fact, the FBI soon got involved because the Hammond police needed high-tech recording equipment in order to surveil the gang members. Soon thereafter, the federal government obtained arrest warrants for the gang members.

Sandoval and Peterson were indicted for the following violations under 18 U.S.C sec. 1951 and 18 U.S.C. sec. 924(c): Count 1--robbery of an enterprise affecting interstate commerce, January 1997; Count 2--carrying a firearm during the commission of this crime, January 1997; Count 3-- attempted robbery of an enterprise affecting interstate commerce, February 1997; and Count 4-- carrying a firearm during the commission of this crime, February 1997. The jury found Sandoval guilty on Counts 1, 3, and 4, and Peterson guilty on Counts 1 and 3. The judge sentenced Peterson to forty-five years, and Sandoval to forty years.

DISCUSSION

Defendants attack their conviction on two fronts. First, they posit that a recent Supreme Court decision requires the government to prove beyond a reasonable doubt that these robberies had a substantial effect on interstate commerce, rather than merely a de minimis effect. Second, they contend that even if the de minimis standard remains, the evidence presented to the jury was insufficient to meet that standard.

I. Hobbs Act Jurisdictional Element

To uphold the tenets of federalism, in order to prosecute an individual under the Hobbs Act, the federal government bears the onus of proving that the accused's conduct affected interstate commerce. This proof differentiates Hobbs Act violations from common law robbery. How strong an affect on interstate commerce the Constitution demands is a question raised by defendants. The Hobbs Act provides, in 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. sec. 1951(a). Thus, two elements must be proven: robbery and an effect on interstate commerce. The Supreme Court has interpreted the statutory language of "in any way or degree" as "manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence." Stirone v. United States, 361 U.S. 212, 215 (1960). We have long held that the government need only show some actual, even if de minimis, effect, or, where there is no actual effect, a realistic probability of an effect, on interstate commerce to bring robbery within its prosecutorial reach. See United States v. Bailey, 227 F.3d 792, 797 (7th Cir. 2000).

In this case, the defendants surmise that United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) mandates a higher showing. Specifically, they argue that a substantial affect on interstate commerce must be demonstrated, and that the use of the "depletion of assets" theory is precluded because robbery is not an economic activity. We start by noting that after the Court's opinion in United States v. Lopez, 514 U.S. 549 (1995), we construed the Hobbs Act as still requiring only a showing of a de minimis effect. See United States v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir. 1995) (extortion case) ("Nor did the Lopez decision undermine this Court's precedents that minimal potential effect on commerce is all that need be proven to support a conviction."). Whether this recent case changes the standard is a new question of law, which we review de novo.

The Court in Morrison struck down 42 U.S.C. sec. 13981, which created a federal civil remedy for victims of gender-motivated violence. The Court likened sec. 13981 to the Gun-Free School Zones Act of 1990, struck down in Lopez, because there was no jurisdictional element establishing that "the federal cause of action is in pursuance of Congress' power to regulate interstate commerce." 120 S.Ct. at 1751. The statute was found to exceed Congress' power because "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." Id. The Court said that generally the aggregation principle has only been applied when the regulated activity was commercial in nature. See id. at 1750. Accordingly, the Court rejected the "argument that Congress may regulate nonecomonic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." Id. at 1754.

Defendants argue that like gender-motivated violence in Morrison, robbery is not an economic activity, and thus aggregation cannot be employed. Defendants quote Lopez, 514 U.S. at 558, which states that "where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence," to argue that local robbery ought not be a federal crime. We rejected a similar argument in United States v. Wilson. See 73 F.3d 675, 684 (7th Cir. 1995) ("There is no authority for the proposition that Congress's power extends only to regulation of commercial entities. . . . [C]ourts have upheld numerous statutes which regulate private conduct that affects commercial entities or commercial activity."). We do not view the Hobbs Act as impermissibly regulating local conduct, that is, it does not regulate robbery for the sake of regulating robbery. Further, the Hobbs Act does not suggest that robbery is an economic activity; rather, the Hobbs Act regulates interference with economic activity by robbery. In other words, it does not federalize all robberies because all robberies per se affect interstate commerce; rather, it applies only to robberies with the proven effect. Unlike the Hobbs Act, the Morrison statute regulated gender-motivated violence wherever it occurred, not just violence directed at interstate commerce. Thus, aggregation is appropriate because what is aggregated is the depletion of the interstate entity's assets by robbery, and not the act of robbery alone.

As our brethren in the Tenth Circuit have recently reasoned in United States v. Malone, we do not believe Morrison undermines our prior holdings that a showing of a de minimis effect is constitutionally satisfactory. See 222 F.3d 1286, 1294-95 (10th Cir. 2000). Therefore, we uphold the de minimis standard because, in the aggregate, robbery of an interstate business has a substantial affect on commerce.

II. Sufficiency of Evidence

Our next inquiry is whether sufficient evidence was presented for the jury to find defendants guilty beyond a reasonable doubt. We lend great credence to a jury's verdict. Thus, a conviction will be overturned based on insufficient evidence only if the record reveals no evidence from which the rational jury could have found the defendants guilty beyond a reasonable doubt. See Bailey, 227 F.3d at 797. At trial, the government bore the burden of proving that the robbery affected interstate commerce. Our review of the trial transcript reveals that the government's proof was insufficient to satisfy the de minimis impact standard.

In its opening statement, the government told the jury:

[T]here's an element that we are required to prove, not just that the crime occurred, but that there's a federal nexus or a federal involvement. And that, you will see from the instructions, is that interstate commerce was affected.

You will be hearing testimony from experts that this marijuana that was taken, and attempted to be taken, was grown outside of the State of Indiana. The weapons that were taken in the first robbery and attempted to be taken in the second, were manufactured outside of the State of Indiana. And, of course, United States currency, as I think most of you know, is not printed in the State of Indiana, but outside. Therefore, all three items that were taken in the first...