U.S. v. Thomas

• Decision Date: 23 October 1998
• Docket Number: Nos. 97-4181,98-1697,s. 97-4181
• Citation: 159 F.3d 296
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Derrick THOMAS and Jason A. Scott, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 296

159 F.3d 296

UNITED STATES of America, Plaintiff-Appellee, v. Derrick THOMAS and Jason A. Scott, Defendants-Appellants.

Nos. 97-4181, 98-1697.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 11, 1998.

Decided Oct. 23, 1998.

Jeffrey B. Lang (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.

Rodney R. Nordstrom (argued), Peoria, IL, for Thomas.

George F. Taseff, Office of the Federal Public Defender, Peoria, IL, for Scott.

Before POSNER, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

Drug enforcement agents gave one of their confidential informants $675 in federal money to buy crack from a suspected drug dealer, defendant Scott. The informant arranged to purchase the crack from Scott, but when he arrived at the place appointed for the transaction Scott and his accomplice, defendant Thomas, robbed him of the "buy" money. The two were convicted of a number of federal crimes arising out of the robbery and given heavy sentences--75 months for Scott and 322 months for Thomas, the difference reflecting the fact that Scott pleaded guilty and testified against Thomas. Their appeals raise several issues but only two have sufficient merit to warrant discussion. The first is that the government failed to prove that the defendants obstructed interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951. It is odd that the government should have proceeded under the Hobbs Act, which requires proof of such obstruction, § 1951(a), since 18 U.S.C. § 2114 (which was not charged) criminalizes the robbery of money owned by the federal government, and the punishment range set by the sentencing guidelines is the same as for violations of the Hobbs Act. See U.S.S.G. § 2B3.1 Commentary; United States v. Pridgen, 898 F.2d 1003, 1004 (5th Cir.1990). Nor would the government have to prove that the defendants knew--they plainly did not--that it was federal money they were stealing. E.g., United States v. Smith, 489 F.2d 1330, 1334 (7th Cir.1973); United States v. Sivils, 960 F.2d 587, 595-96 (6th Cir.1992). These are cases under 18 U.S.C. § 641, but that is merely the theft counterpart of section 2114, and raises the identical issue of knowledge. At argument, the assistant U.S. attorney explained that he had thought that section 2114 punished theft rather than robbery; he had confused 2114 with 641.

No matter. The defendants obstructed commerce in a pretty literal sense. The confidential informant was supposed to buy a quantity of crack cocaine from Scott for $675. The cocaine would, the evidence showed, have originated in South America, and would thus have traveled in commerce. By robbing the informant rather than selling him cocaine Scott and his accomplice thwarted what would have been a sale in commerce within the meaning of the Hobbs Act. That the amount of cocaine in contemplation was small is irrelevant. The cases involving prosecutions that hinge on proving an effect on interstate commerce hold that the relevant issue is the effect on commerce of the entire class of transactions to which the transaction or transactions at issue in the particular case belong, e.g., Perez v. United States, 402 U.S. 146, 154-55, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); United States v. Staszcuk, 517 F.2d 53, 57-58 (7th Cir.1975) (en banc); United States v. Zizzo, 120 F.3d 1338, 1350 (7th Cir.1997); United States v. Robinson, 119 F.3d 1205, 1211, 1215 (5th Cir.1997)--the effect on commerce of all arsons of a particular type of building (restaurant, apartment house, private home, etc.) rather than the effect of just the individual building that the defendant torched. E.g., United States v. Hicks, 106 F.3d 187, 189-90 (7th Cir.1997). Any other rule would leave the federal government helpless to deal with criminal acts that have an individually trivial but cumulatively significant effect on the movement of goods and services across state and international boundaries.

We are mindful of cases in which the robbery of personal items of small value has been held not to obstruct commerce. United States v. Quigley, 53 F.3d 909 (8th Cir.1995); United States v. Collins, 40 F.3d 95, 100-01 (5th Cir.1994); United States v. Buffey, 899 F.2d 1402 (4th Cir.1990); cf. United States v. Mattson, 671 F.2d 1020, 1024-25 (7th Cir.1982); United States v. Boulahanis, 677 F.2d 586, 590 (7th Cir.1982). Since the aggregate effect of such robberies on commerce is nontrivial, these cases are in tension with the ones we cited earlier, which insist on aggregation. But their facts do rather challenge the power of the imagination to conceive an obstruction of commerce. A camera manufactured in Japan might have been bought for personal use, and stolen from its owner ten years later. The theft would not obstruct commerce directly, and the indirect effect would be elusive. If the owner replaced the camera, the theft would have had the effect of stimulating commerce! But this would also often be true in commercial thefts, or in thefts of personal property of large value. However, whether the cases we have cited are sound we need not decide today. Here the interstate (really international) transaction was interrupted by the robbery before the good came to rest in the hands of the ultimate consumer.

Of course it was a "consumer" of a peculiar sort: a confidential informant detailed to buy an illegal good not for personal consumption, his own or anyone else's, but to serve as evidence in a prosecution designed to stifle the very commerce in question. That makes no difference either. For valid law enforcement purposes the government wants to preserve and even facilitate a certain type and amount of illegal drug trafficking. That is a socially valuable commerce even if its only value is as evidence in legal proceedings. It is no less valuable than the transportation across state lines, for DNA testing, of hair samples obtained from suspects.

The other issue meriting discussion is the propriety of the district judge's having sentenced Thomas as an armed career criminal by virtue of Thomas's having previously been convicted of statutory rape under an Illinois statute that punishes a man who has sexual intercourse with a woman who is under the age of 17 and more than five years younger than he. 720 ILCS 5/12-16(d). (Illinois calls this form of statutory rape aggravated criminal sexual abuse.) Under the armed career criminal statute, this enhancement, which elongated Thomas's sentence by 15 years, was proper only if his conviction was for a "violent felony." 18 U.S.C. § 924(e)(1). The judge held that it was.

The statute defines a violent felony, so far as bears on this case, as one "that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Recently the full court dealt with the identical language under the federal sentencing guidelines governing the crime of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1); see U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2(a)(1), and held that the conviction of a 17 year old boy for sexual intercourse with a 13 year old girl under a Wisconsin statute that punished such conduct as second-degree sexual assault was a conviction for a crime of violence. United States v. Shannon, 110 F.3d 382 (7th Cir.1997) (en banc). We based this conclusion on medical literature which indicated that a 13 year old is unlikely to appreciate fully or be able to cope effectively with the disease risks and fertility risks of intercourse and that if she does become pregnant it is likely to be a high risk pregnancy--both for her and for the fetus. Id. at 387-88. We carefully avoided holding that all forms of statutory rape are...