U.S. v. Rodriguez

• Decision Date: 23 February 2004
• Docket Number: No. 03-50083.,03-50083.
• Citation: 360 F.3d 949
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rafael RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

360 F.3d 949

UNITED STATES of America, Plaintiff-Appellee, v. Rafael RODRIGUEZ, Defendant-Appellant.

No. 03-50083.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 5, 2004.

Filed February 23, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

W. Michael Mayock, Law Offices of W. Michael Mayock, Pasadena, California, for the defendant-appellant.

Brian M. Hoffstadt, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Dean D. Pregerson, District Judge, Presiding. D.C. No. CR-01-01224-DDP-2.

Before: Stephen S. TROTT, Johnnie B. RAWLINSON, and Carlos T. BEA, Circuit Judges.

Opinion by Judge Trott.

OPINION

TROTT, Circuit Judge:

Rafael Rodriguez pleaded guilty to and was sentenced for conspiring to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951(a), after he and two cohorts agreed to rob cocaine traffickers. Rodriguez raises four arguments on appeal: first, he maintains that section 1951 is unconstitutionally vague as it does not provide adequate notice of what conduct is prohibited under its provisions; second, he claims that the government's evidence did not satisfy the Hobbs Act's jurisdictional nexus; third, he asserts that Count Two of the indictment did not sufficiently allege a crime under the statute; and fourth, he argues that the district court failed to exercise its discretion to depart downward from the sentencing guidelines for imperfect entrapment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We hold that none of Rodriguez's claims has merit. Accordingly, we affirm Rodriguez's conviction and sentence.

BACKGROUND

Rodriguez was charged in a two-count indictment, along with his co-defendants, Jose Luis Robles and Ricardo Figueroa (collectively "defendants"), with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and with conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951, commonly referred to as the Hobbs Act. The charges arose out of an undercover sting operation organized by the Bureau of Alcohol, Tobacco and Firearms ("ATF") in which defendants agreed to rob cocaine from the stash house of narcotics traffickers. The robbery scheme was coordinated during a meeting between defendants and an undercover ATF agent. Believing that the undercover agent was a runner for narcotics traffickers, defendants agreed to assist in a robbery of the agent's supposed dealers. To carry out their scheme, defendants agreed that they would pose as police officers and conduct a fictitious raid of the stash house, during which they would force the traffickers at gunpoint to lie on the floor and be handcuffed. With the traffickers bound and defenseless, defendants agreed that they would steal approximately 25 kilograms of cocaine. After so agreeing, and in furtherance of the conspiracy, defendants met with people they believed would lead them to the stash house. To this meeting, defendants brought with them necessary police attire, including LAPD T-shirts, security guard badges, and windbreakers.

Defendants were subsequently arrested and indicted. Rodriguez initially entered a plea of not guilty, but on October 25, 2002, he pleaded guilty to Count Two of the indictment, the conspiracy to interfere with commerce. Under the plea agreement, Rodriguez would not be prosecuted for Count One of the indictment, the charge of conspiracy to possess. Rodriguez subsequently filed a motion to arrest judgment, pursuant to Federal Rule of Criminal Procedure 34, which the district court denied on January 17, 2003. On March 3, 2003, the district court sentenced Rodriguez to 63 months of custody and three years of supervised release.

DISCUSSION

I. Due Process Vagueness

Rodriguez challenges the constitutionality of the Hobbs Act, arguing that the statute is vague and ambiguous regarding its use of the term "commerce." We review de novo a challenge to the constitutionality of a statute on void for vagueness grounds. United States v. Purdy, 264 F.3d 809, 811 (9th Cir.2001). To prove that section 1951 is unconstitutionally vague, Rodriguez must show that the statute "(1) does not define the conduct it prohibits with sufficient definiteness and (2) does not establish minimal guidelines to govern law enforcement." United States v. Davis, 36 F.3d 1424, 1434 (9th Cir.1994) (citing Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). "Where, as here, a statute is challenged as unconstitutionally vague in a cause of action not involving the First Amendment, we do not consider whether the statute is unconstitutional on its face." Purdy, 264 F.3d at 811 (citing United States v. Ocegueda, 564 F.2d 1363, 1365 (9th Cir.1977)). Rather, we must determine "whether the statute is impermissibly vague in the circumstances of this case." Id. (internal citations, quotation marks, and alteration removed).

The Hobbs Act prohibits any robbery or extortion or attempt or conspiracy to rob or extort that "in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce." 18 U.S.C. § 1951(a). We must determine whether the language of the statute put Rodriguez on notice that his conduct was criminal. "The essential purpose of the `void for vagueness' doctrine is to warn individuals of the criminal consequences of their conduct." Jordan v. De George, 341 U.S. 223, 230, 71 S.Ct. 703, 95 L.Ed. 886 (1951); see also McSherry v. Block, 880 F.2d 1049, 1052 (9th Cir.1989) ("[C]riminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law.") (quoting Jordan, 341 U.S. at 230, 71 S.Ct. 703).

Courts have previously rejected void for vagueness constitutional challenges to the Hobbs Act as it relates to the sections of the act relating to extortion. See, e.g., Carbo v. United States, 314 F.2d 718, 731-32 (9th Cir.1963) (finding Hobbs Act not vague in application to extortion in boxing business); United States v. Rosa, 560 F.2d 149, 154 n. 5 (3rd Cir.1977) (rejecting vagueness challenge to section 1951's prohibition on attempted extortion); United States v. Williams, 621 F.2d 123, 125 (5th Cir.1980) (rejecting facial challenge to Hobbs Act). Rodriguez's exact claim, however, that section 1951 is vague due to its broad definition of "commerce" is a matter of first impression. Section 1951 defines "commerce" as:

[1] commerce within the District of Columbia, or any Territory or Possession of the United States; [2] all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; [3] all commerce between points within the same State through any place outside such State and [4] all other commerce over which the United States has jurisdiction.

18 U.S.C. § 1951(b)(3). Rodriguez does not dispute that he and his co-defendants agreed to partake in the robbery of narcotics traffickers. Nor does he dispute that he brought police attire to a meeting in anticipation of conducting the planned raid. Rather, the only question is whether Rodriguez was given sufficient notice that these actions would constitute a federal crime under section 1951.

We find that section 1951's definition of commerce is well-established and therefore not unconstitutionally vague. Under the statute's definition of commerce, the Supreme Court has interpreted jurisdiction under section 1951(a) to be coextensive with the Commerce Clause. Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). "Congress meant for the Hobbs Act to reach as far as the Commerce Clause of the United States Constitution would allow.... Consequently, an inquiry into the reach of section 1951 is the same as an inquiry into the limits imposed on Congress by the Commerce Clause." United States v. Lynch, 282 F.3d 1049, 1051-52 (9th Cir.2002) (citing United States v. Pascucci, 943 F.2d 1032, 1035 (9th Cir.1991)). Thus, notice of the scope of the conduct proscribed by section 1951 is supplied by the common understanding of the reach of the Commerce Clause. This principle guided us in rejecting a similar vagueness challenge to 18 U.S.C. § 1962, the Organized Crime Control Act of 1970. United States v. Campanale, 518 F.2d 352 (9th Cir.1975). In Campanale, we rejected the vagueness challenge, holding that "[t]he concept of affecting interstate or foreign commerce is so well imbedded in federal law as not to mislead anyone who desires to conform his conduct to the requirements of this law." Id. at 364. The same principle mandates our conclusion that the definition of commerce in section 1951 is sufficiently definite and, therefore, not unconstitutionally vague.

II. Commerce Clause Requirements

Rodriguez contends that the federal government failed to establish that it had jurisdiction to prosecute the conspiracy under the Hobbs Act and that his conviction must be overturned. Specifically, he argues that the government failed to show that the conspiracy for which he was charged was sufficiently connected to interstate commerce. The Hobbs Act criminalizes robberies and conspiracies to rob that obstruct or otherwise affect interstate or foreign commerce. 18 U.S.C. § 1951. We must determine, therefore, whether the conspiracy to rob suspected drug traffickers in this case had the requisite effect on commerce.

It is well-established that the government need only show a de minimis effect on interstate commerce to fulfill the jurisdictional element of the Hobbs Act. United States v. Panaro, 241 F.3d 1104 (9th Cir.2001); United States v. Atcheson, 94 F.3d 1237, 1242 (9th Cir.1996) (concluding that United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), did not require proof of a "substantial effect" on interstate commerce in ...