Gone To Pot

United States v. Celaj, No. 10-2792-cr (2d Cir. August 22, 2011)(Miner, Cabranes, Straub, CJJ)

Din Celaj headed a crew that would rob - or try to rob - drug dealers. When successful, they would obtain drugs, which they would themselves sell, money and firearms.

He went to trial on several Hobbs Act robbery and associated 924(c) counts, was convicted, and received a 601-month sentence. On appeal, he made a sufficiency claim as to the jurisdictional element of the Hobbs Act counts where the goal was to steal marijuana. He did so despite entering into a stipulation at trial that “marijuana is grown outside of the state of New York and travels in interstate and foreign commerce to arrive in the New York City area.” The circuit affirmed.

The court began by surveying the area. In Parkes, see "Government Has No Evidence; Court Deems It Sufficient," posted September 23, 2007, the court found the evidence sufficient even though there was no specific evidence about the origin of the marijuana that was stolen, where there was evidence that the object of the robbery was a “small but going” marijuana enterprise, the theft netted several bags of marijuana and $4,000 in cash, and an expert testified that marijuana is typically trucked in through Mexico and very little is grown in New York. By contrast, in Needham, see "Reefer Gladness," posted May 23, 2010, the court found the evidence - which was limited to the amount of money obtained - insufficient since there was no proof that the marijuana sold by the robbery victims had either originated or been sold out of state.

“Guided by” these cases, the court concluded that the evidence here “achieve[d] the same effect as the evidence offered in Parkes,” which was sufficient. There, the “key evidence” was the expert testimony. Here, the stipulation conveyed “the same information about the interstate nature of the marijuana trade.” And, unlike Neeham, there was more evidence than just drug money, because Celaj had made statements that he was in the business of stealing marijuana and selling it.

Labor Pains

United States v. Markle, No. 06-1600-cr (2d Cir. December 14, 2010) (Jacobs, Pooler, Parker, CJJ)

In United States v. Enmons, 410 U.S. 396 (1973), the Supreme Court held that extortion liability under the Hobbs Act, 18 U.S.C. § 1951, did not extend to violence in pursuit of “legitimate labor ends” that occurs during a lawful strike that is intended to achieve “legitimate collective-bargaining objectives.”

Defendant Markle was convicted of attempted Hobbs Act extortion after a violent confrontation arising from two unions' turf war over the right to perform “fine sweep work” - the preparation of a floor surface before installing tile - at a construction site in upstate New York. He argued both in the district court and on appeal that Enmons precluded liability.

The circuit disagreed. The Enmons defense is not available if there is no legitimate labor union objective. Courts have generally limited the defense to the context of strikes or collective bargaining negotiations between unions and employers. It does not apply to “violence committed by one union against another for the purpose of ‘establishing the proper allocation of work between’” two different groups of unionized workers. Violence committed “outside the context of a labor-management dispute, by one union against another, does not have a legitimate collective-bargaining objective under the Hobbs Act.”

Government Has No Evidence; Court Deems It Sufficient

United States v. Parkes, No. 05-1486-cr (2d Cir. August 15, 2007) (Jacobs, McLaughlin, Calabresi, CJJ).

In a sterling example of the alchemy of result-oriented jurisprudence, here the court finds sufficient evidence of an effect on interstate commerce, even though there was none.

Otis Parkes and two others planned and carried out 2003 robbery attempt in the apartment of a drug dealer. Their target was marijuana and marijuana proceeds that the dealer kept hidden in his closet. During the robbery, one of the co-conspirators shot and killed the drug dealer. Parkes went to trial on a Hobbs Act robbery conspiracy charge under 18 U.S.C. § 1951, along with other, related charges, including murder in furtherance of a crime of violence, under 18 U.S.C. § 924(j). He received a life sentence.

The government had taken the position (a typical SDNY overreach) that it did not have to prove any effect on interstate commerce and that, as long as it proved that the target of the robbery was drugs or proceeds this element was satisfied. At the charge conference, Judge Kaplan disagreed, but permitted the government to reopen and call an “expert,” who testified that marijuana is “almost exclusively” trucked into the United States from Mexico, and that “very little” is grown in New York. He conceded that he did not know the origin of the marijuana found in this case and that marijuana can be, and is, grown in New York State.

On appeal, the Circuit reached two significant, albeit contradictory conclusions. It first held that, in a Hobbs Act prosecution, the government must, indeed, prove an effect on interstate commerce, rejecting the government’s (renewed) argument that a robbery involving drugs or proceeds affects commerce as a matter of law. This is significant because, to get there, it had to conduct what is calls a “mini-en banc” to undo United States v. Fabian, 312 F.3d 550 (2d Cir. 2002). There, the court had held that, for the loan sharking portions of the Hobbs Act, drug proceeds affect commerce as a matter of law. Fabian had imported the Congressional findings under the Controlled Substances Act, 21 U.S.C. 801, et. seq., that all drug trafficking affected commerce to the Hobbs Act. Here, the Circuit did an about-face, relying, of all things, on Booker, which of course has nothing to do with commerce, to conclude that Fabian is “no longer good law.”

So far, so good for Mr. Parkes. Unfortunately, the court then concluded that the non-evidence introduced by the government was sufficient, because “a reasonable juror, hearing [it] could have found that the attempted robbery of ... marijuana or proceeds would have affected interstate commerce in any way or degree.”

The court rejected all of Parkes’ other claims, as well, but remanded the case for resentencing under Booker.

Comment: This is a ridiculous case. On the one hand, it requires the government to prove an effect on interstate commerce in Hobbs Act cases involving drugs or proceeds. But on the other hand, it completely excuses the government’s failure to do so.