US v. Flores, 94 CR 104 (KMW).

• Decision Date: 17 June 1994
• Docket Number: No. 94 CR 104 (KMW).,94 CR 104 (KMW).
• Parties: UNITED STATES of America v. Elbin FLORES, Defendant.
• Court: U.S. District Court — Southern District of New York

855 F. Supp. 638

UNITED STATES of America v. Elbin FLORES, Defendant.

No. 94 CR 104 (KMW).

United States District Court, S.D. New York.

June 17, 1994.

Vernon S. Broderick, Asst. U.S. Atty., Mary Jo White, U.S. Atty., New York City, for plaintiff.

Inga Parsons, Legal Aid Society, New York City, for defendant.

MEMORANDUM OPINION AND ORDER

KIMBA M. WOOD, District Judge.

Defendant Elbin Flores is charged in a two-count indictment with interfering with interstate commerce by robbing a flower shop owner of a portion of the proceeds of her business, in violation of the Hobbs Act, 18 U.S.C. § 1951(b)(1), and with using a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Defendant moves to dismiss the indictment in its entirety for lack of federal jurisdiction. For the reasons stated below, defendant's motion is denied.¹

Background

The government alleges that the victims, the owner of a flower shop and her son, were entering their apartment with a bag containing approximately $4,000 in proceeds from the flower shop when they were attacked by defendant. According to the government, defendant and two other assailants tied up both victims and took the $4,000; defendant and the other male assailant then sexually assaulted and raped the owner of the flower shop. The assailants allegedly ransacked the apartment and took an unknown amount of jewelry, in addition to the $4,000. The government rests jurisdiction upon its allegation that the flower shop sells flowers and other items that move in interstate commerce.

Analysis

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 to do so ... shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a).

As defendant acknowledges, both the United States Supreme Court and the Second Circuit Court of Appeals have taken an expansive view of federal jurisdiction under the Hobbs Act. The Supreme Court has stated,

the statutory language sweeps within it all persons who have "in any way or degree ... affected commerce ... by robbery or extortion." These words do not lend themselves to a restrictive interpretation; as we have recognized, they "manifest ... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence."

United States v. Culbert, 435 U.S. 371, 373, 98 S.Ct. 1112, 1113, 55 L.Ed.2d 349 (1978) (emphasis added) (citing Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960)). See also Jund v. Hempstead, 941 F.2d 1271, 1285 (2d Cir. 1991) (if defendant's conduct "produces an interference with or effect upon interstate commerce, whether slight, subtle or even potential, it is sufficient to uphold a prosecution under the Hobbs Act") (emphasis added). In the Second Circuit, the depletion of assets of an enterprise that conducts business in interstate commerce "by itself may impair the efficient conduct of its business sufficiently to affect commerce." United States v. Augello, 451 F.2d 1167, 1170 (2d Cir.1971), cert. denied, 405 U.S. 1070, 92 S.Ct. 1518, 31 L.Ed.2d 802 (1972) (finding federal jurisdiction under Hobbs Act satisfied where victim of extortion, the owner of a hamburger restaurant, met extortion demand with $100 from restaurant cash register). The government contends that a similar depletion of assets took place here, because defendant allegedly robbed the victims of the proceeds of their business, thereby lessening the ability of the enterprise to transact business in interstate commerce.

Defendant concedes the broad reach of the Hobbs Act and the adoption in the Second Circuit of the "depletion of assets theory" of Hobbs Act jurisdiction. Def.'s Mem. at 4-5. However, defendant contends that the case at bar is distinguishable from other Second Circuit decisions applying the depletion of assets theory in two crucial respects. First, defendant claims that none of the depletion of assets decisions has involved precisely the combination of facts present in the case at bar. According to defendant, the depletion of assets decisions involve either racketeering, union-related activity, extortion under color of official right, or straightforward extortion from a business. The offenses are on-going schemes of extortion rather than one-time events, and take place at the business the assets of which are depleted, rather than at the owner's home. Here, in contrast, the crime at issue is a "garden variety ... rape and armed robbery" that took place at a residence — a single act rather than an ongoing scheme. Def.'s Mem. at 4.² Second, defendant argues that the fact that the victims brought the allegedly stolen funds home gives rise to an inference that the funds were intended for personal use, and were not assets of the flower shop. If the funds in question were not business assets, defendant contends, the court may not apply the depletion of assets theory at all. I agree with defendant that this case is a close one that appears to lie near the outer limits of Hobbs Act jurisdiction. Nevertheless, I conclude, in light of the language of the statute, the decisional law, and the statute's legislative history, that the case falls within those limits, and that defendant's motion to dismiss the indictment for lack of jurisdiction must be denied.

Defendant is correct that almost no decisional law extending federal jurisdiction to precisely the circumstances at issue here exists in this circuit. But see United States v. Fernandez, 1993 WL 362392 (S.D.N.Y.1993) (Kram, J.) (finding federal jurisdiction where owner of furniture store was allegedly robbed, at home, of assets of his furniture store, and where furniture store did business in interstate commerce).³ However, defendant offers no reason why the factual differences between this case and other depletion of assets cases should be dispositive here. It is true that the Hobbs Act was enacted at a time at which Congress was concerned about labor racketeering and extortion. United States v. Enmons, 410 U.S. 396, 401-11, 93 S.Ct. 1007, 1010-16, 35 L.Ed.2d 379 (1973) (discussing legislative history of Hobbs Act). This history may suggest that extortion lies closer to the heart of the Hobbs Act than does robbery. In addition, prosecutions for extortion under the Hobbs Act appear to be more frequent than prosecutions for robbery. However, the language of the Act explicitly embraces robbery as well as extortion, provided it affects interstate commerce "in any way or degree." I see no reason why the depletion of assets theory of Hobbs Act jurisdiction should not apply in robbery cases, and several courts have so applied it. See, e.g., United States v. Norris, 792 F.2d 956, 957-58 (10th Cir.1986) (finding federal jurisdiction where robbery of Brinks car depleted assets of a business engaged in interstate commerce); United States v. Scaife, 749 F.2d 338, 347-48 (6th Cir.1984) (conspiracy to rob general store); United States v. Caldarazzo, 444 F.2d 1046, 1048-49 (7th Cir.), cert. denied sub nom. DeLegge v. U.S., 404 U.S. 958, 92 S.Ct. 328, 30 L.Ed.2d 276 (1971) (robbery of jewelry salesman); Fernandez, 1993 WL 362392 at *2 (robbery of furniture store owner); cf. United States v. Skowronski, 968 F.2d 242 (2d Cir.1992) (upholding conviction for robbery of store under Hobbs Act, without reference to depletion of assets theory); United States v. Jarrett, 705 F.2d 198, 201 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984) ("Nothing on the face of the Hobbs Act indicates a congressional intent to define the phrase `affects commerce' more narrowly with respect to the offense of robbery as opposed to the offense of extortion."). I therefore reject defendant's argument that the facts of this case distinguish it from extortion cases in which the depletion of assets theory has been applied, and hold that the depletion of assets theory is applicable here.

Defendant's argument that ongoing criminal activity is a necessary element of a Hobbs Act violation is similarly unpersuasive. Although extortion may frequently involve an ongoing scheme, robbery is more commonly a single event, and the statute's definition of robbery bears no trace of an ongoing activity requirement.⁴ The court notes that when Congress wishes to make ongoing criminal activity an element of a federal offense, it knows how to do so. See, e.g., 18 U.S.C. §§ 1961(5), 1962 (making unlawful various actions in connection with a "pattern of racketeering activity"). Defendant's argument is not supported by the language of the statute.

Defendant's argument also finds no support in the decisional law. It is true that courts have cited United States v. Merolla, 523 F.2d 51 (2d Cir.1975), for the proposition that a "one-time only effect on interstate commerce" is insufficient to ground jurisdiction under the Hobbs Act.⁵ See Jund, 941 F.2d at 1285. In Merolla, the Second Circuit Court of Appeals reversed a conviction for extortion under the Hobbs Act where the evidence failed to show that the victim of the extortion was involved in an ongoing business that made continuing interstate purchases. However, it was the victim's purchase of items in interstate commerce that the Merolla court held must be ongoing, not the criminal conduct that impairs the ability to purchase. The court stated:

As for the depletion of assets theory, we have no difficulty with the general premise. Where the victim of an extortion scheme customarily obtains supplies through interstate commerce, the diminution of the victim's resources impairs his purchasing power and may therefore be found to affect interstate commerce for the purpose of the Hobbs Act.

The victim's purchase of interstate goods, however, must be of a continuing

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