United States v. John Gassew , 519 F. App'x 764 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2510
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UNITED STATES OF AMERICA
v.
JOHN GASSEW,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-10-cr-00045-001)
District Judge: Honorable Anita B. Brody
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Submitted Under Third Circuit LAR 34.1(a)
March 4, 2013
Before: RENDELL, AMBRO and VANASKIE, Circuit Judges
(Opinion Filed: March 12, 2013)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Defendant John Gassew challenges his conviction under the Hobbs Act, arguing
that the government failed to prove that the robberies of which he was convicted affected
interstate commerce. Gassew additionally contends that the District Court erred in
refusing his proposed jury instruction regarding the interstate commerce element of the
Hobbs Act. Both of Gassew‟s arguments on appeal fail, however, because the evidence
was sufficient to prove the robberies affected interstate commerce and the District Court
properly refused Gassew‟s requested jury instruction. Accordingly, we will affirm.
I. Background
Since we write principally for the benefit of the parties who are familiar with this
case, we recite only the essential facts and procedural history.
On December 9, 2007, Gassew robbed Danny Boy‟s Bar in Philadelphia,
Pennsylvania (“Danny‟s”). Armed with a handgun, Gassew stole $200 in cash from the
cash register, $1,000 in business proceeds from an employee‟s pocketbook, money in the
bartender‟s tip jar, the bartender‟s personal cash, and various personal belongings from
other employees and bar patrons. At the time of the robbery, Danny‟s sold Miller and
Budweiser beer, which were imported from other states.1
On October 28, 2009, Gassew robbed a 7-Eleven store in Philadelphia. Again
armed with a handgun, Gassew stole $140 in cash from the cash register and $4,854 in
store merchandise. At the time of the robbery, the 7-Eleven sold numerous brands of
cigarettes, including Newport cigarettes, which are manufactured and transported from
out of state.2 Gassew stole thirty-five cartons of the Newport cigarettes.
1
Danny‟s received Miller beer from Muller, Inc., a beer wholesaler in Philadelphia.
Muller obtained Miller beer from Miller breweries all located outside of Pennsylvania.
Danny‟s received Budweiser beer from Brandt‟s Distributors, which received the beer
from Penn Distributor‟s, Inc., a beer wholesaler in Philadelphia. Penn Distributors
obtained Budweiser from breweries all located outside of Pennsylvania.
2
Newport cigarettes are manufactured by Lorillard Tobacco Company in North Carolina.
Most 7-Eleven stores in Philadelphia get their merchandise from the McLane Company,
2
A grand jury charged Gassew with three counts of interference with interstate
commerce by robbery under the Hobbs Act. 18 U.S.C. § 1951(a). Following a two-week
trial, a jury found Gassew guilty of the above-mentioned robberies. The District Court
sentenced Gassew to 444 months of imprisonment, supervised release for a term of five
years, restitution of $7,194, and a special assessment of $400.
The instant appeal followed.3
II. Discussion
A. Sufficiency of the Evidence
Gassew first argues that the government failed to prove that the robberies affected
interstate commerce sufficient to satisfy the interstate commerce element of the Hobbs
Act as required by the Commerce Clause of the United States. U.S. CONS. art. 1, § 8, cl.
3. He challenges his convictions in two ways: 1) the government did not prove the goods
were in interstate commerce at the time of the robberies; and 2) the government did not
prove a close and substantial effect on interstate commerce. Both arguments fail.
This Court applies a “particularly deferential standard of review when deciding
whether a jury verdict rests on legally sufficient evidence. It is not for [the court] to
weigh the evidence or to determine the credibility of the witnesses. Rather, [the court]
must view the evidence in the light most favorable to the government, and will sustain the
verdict if any rational trier of fact could have found the essential elements of the crime
which transports cigarettes by truck from North Carolina to a warehouse in New Jersey,
and then to a distribution center in Pennsylvania.
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
3
beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)
(citations and internal quotation marks omitted).
A conviction under the Hobbs Act requires the government to show that “(1) the
defendant committed „robbery or extortion‟ or attempted or conspired to do so, and (2)
that conduct „obstruct[ed], delay[ed], or affect[ed] commerce or the movement of any
article or commodity in commerce.‟” United States v. Walker, 657 F.3d 160, 178-79 (3d
Cir. 2011) cert. denied, 132 S. Ct. 1122 (2012) (quoting 18 U.S.C. § 1951(a)). The Hobbs
Act defines commerce broadly “to include „all . . . commerce over which the United
States has jurisdiction.‟” Walker, 657 F.3d at 179 (quoting 18 U.S.C. § 1951(b)(3)); see
also Stirone v. United States, 361 U.S. 212, 215 (1960) (“[The Hobbs Act] speaks in
broad language, manifesting a purpose to use all the constitutional power Congress has to
punish interference with interstate commerce by extortion, robbery or physical
violence.”). This Court has held that “proof of a de minimis effect on interstate commerce
is all that is required” in a Hobbs Act prosecution. United States v. Urban, 44 F.3d 754,
766 (3d Cir. 2005). Further, such a de minimis effect need only be “slight, subtle or even
potential.” United States v. Haywood, 363 F.3d 200, 210 (3d Cir. 2004).
Appellant argues that his convictions cannot stand under the Hobbs Act because
the goods at issue lost their interstate commerce connection upon delivery to their
original destination in Pennsylvania. Gassew asserts that the goods were not in interstate
commerce at the time of the offenses because the goods were delivered to Pennsylvania
distributors before being delivered to the victims‟ businesses. Gassew fails to cite any
relevant authority to support his interpretation of the interstate commerce requirement.
4
“The most important case” Gassew relies on to support his interpretation is a decision of
the District Court for the District of Arizona involving a prosecution pursuant to 18
U.S.C. § 924(b). United States v. Havelock, 560 F. Supp.2d 828, 832-34 (D. Ariz. 2008).
Gassew fails to acknowledge that Havelock interpreted the language and legislative
history of 18 U.S.C. § 924(b), a completely different statute, in concluding that a § 924(b)
conviction requires the proscribed act and interstate receipt be contemporaneous.
Havelock, 560 F. Supp.2d at 832.
By contrast, we have never required that the proscribed act and interstate receipt
be contemporaneous under the Hobbs Act. Rather, we have repeatedly reinforced the low
hurdle required to satisfy the interstate commerce requirement under the Hobbs Act. E.g.,
United States v. Powell, 693 F.3d 398, 404-05 (3d Cir. 2012) cert. denied, 133 S. Ct. 901(2013) (affirming Hobbs Act conviction where defendant stole business proceeds from
business owners‟ homes because defendant targeted business proceeds of businesses
engaged in interstate commerce).
Gassew additionally argues that the Hobbs Act requires the government to prove
that the robberies had a close and substantial effect on interstate commerce, and that the
government failed to prove this effect as required under Commerce Clause jurisprudence.
See Jones v. United States, 529 U.S. 848 (2000); United States v. Morrison, 529 U.S. 598(2000); United States v. Lopez, 514 U.S. 549 (1995). Gassew asserts that because he is
charged with a crime local in nature, local authorities should prosecute the case and any
Congressional regulation of such local conduct unjustifiably encroaches on the state‟s
domain.
5
This Court has explained, however, that “the government is not required to present
proof of a substantial effect on commerce in an individual case in order to show a Hobbs
Act violation.” Walker, 657 F.3d at 179 (quoting Urban, 404 F.3d at 766) (quotation
marks omitted). The Hobbs Act differs from the statutes struck down in Lopez and
Morrison because the Hobbs Act contains a “jurisdictional element,” limiting its scope,
United States v. Clausen, 328 F.3d 708, 710 (3d Cir. 2003),4 and “regulates
quintessentially economic activities.” Walker, 657 F.3d at 179.5 So, “[i]f the defendant‟s
conduct produces any interference with or effect upon interstate commerce, whether
slight, subtle or even potential, it is sufficient to uphold a prosecution under [§ 1951].”
Haywood, 363 F.3d at 209-10 (quoting Jund v. Town of Hempstead, 941 F.2d 1271, 1285
(2d Cir. 1991)). Moreover, “a showing that business assets were depleted” may satisfy
the interstate commerce requirement. Haywood, 363 F.3d at 210 (quoting United States v.
Zeigler, 19 F.3d 486, 493 (10th Cir. 1994).
The evidence readily establishes that the businesses Gassew robbed were engaged
in interstate commerce to satisfy the interstate commerce nexus under the Hobbs Act
because both businesses received goods from out of Pennsylvania. In Haywood, this
Court found the interstate commerce requirement was satisfied when the victim bar sold
two brands of beer that were manufactured outside of the Virgin Islands, Haywood 363
4
See Clausen, 328 F.3d at 710 (quoting 18 U.S.C. § 1951(a)) (“[T]he Hobbs Act contains
a „jurisdictional element‟-that is, it only applies to crimes which „obstruct[], delay[], or
affect[] commerce or the movement of any article or commodity in commerce.‟”).
5
See Walker, 657 F.3d at 179 (“[P]roperty crime like robbery and extortion are . . .
indisputably „economic‟ under our post-Lopez precedents.”).
6
F.3d at 210-11, and the defendant stole $50 to $70 in business proceeds. Id. at 202.
Similarly here, it is uncontested that Danny‟s and 7-Eleven sold items that were
manufactured in other states and shipped to Pennsylvania. Specifically, Danny‟s sold two
brands of beer, Miller and Budweiser, that were manufactured at out-of-state breweries
and shipped to Pennsylvania. The 7-Eleven sold Newport cigarettes that were
manufactured in North Carolina and eventually shipped to Pennsylvania. Gassew stole
business proceeds from both Danny‟s and 7-Eleven, thus depleting assets that could be
used to purchase more out-of-state goods. He also stole numerous cartons of Newport
cigarettes, which caused the 7-Eleven to use assets to purchase additional Newport
cigarettes from out of state.
Thus, the evidence presented sufficiently supports the finding that the robberies
affected interstate commerce for purposes of the Hobbs Act. We affirm the District
Court‟s conviction under the Hobbs Act.
B. Jury Instructions
Gassew also argues that the District Court erred in refusing to give his
supplemental jury instruction on the interstate commerce element of the Hobbs Act. This
Court reviews “a district court‟s refusal to give a certain instruction for abuse of
discretion, but exercise[s] plenary review to determine whether the jury instructions
stated the proper legal standard.” Powell, 693 F.3d at 406 n.9 (citing United States v.
Leahy, 445 F.3d 634, 642 (3d Cir.2006)).
In instructing the jury on the interstate commerce element, the District Court
followed the Third Circuit model jury instruction, entitled “Hobbs Act – Affecting
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Interstate Commerce.” The District Court also included a supplemental instruction
proposed by the government, describing the depletion-of-assets theory as discussed
above. However, the District Court refused to give Gassew‟s supplemental instruction.
Gassew argues that his proposed jury instruction should have been given because the
decision of whether the goods were in interstate commerce was a question of fact for the
jury to decide. Gassew asserts that a jury could find the goods at issue were no longer in
interstate commerce because they arrived at Pennsylvania distributors before arriving at
the victim businesses, even if they originated from out of state. The government opposes
the requested instruction because Gassew‟s proposed instruction applies to prosecutions
for theft of interstate shipments in violation of 18 U.S.C. § 659, not a Hobbs Act robbery.
Gassew does not challenge either instruction given by the Court; rather he only
argues that the Court erred in refusing to give his requested supplemental jury instruction.
The jury instruction Gassew requested, however, lacks any pertinent authority, and
instead cites several cases that did not involve prosecutions under the Hobbs Act. As
explained above, Gassew cites no authority related to the Hobbs Act to support his theory
that the goods lost their interstate character upon arriving in Pennsylvania, and this Court
has never made this finding. This Court requires only a de minimis effect on interstate
commerce to satisfy the interstate commerce requirement under the Hobbs Act. Urban,
404 F.3d at 762-66. The District Court did not abuse its discretion in rejecting Gassew‟s
proposed instruction because the instruction given by the District Court reflected circuit
precedent in requiring the government to prove a minimal effect on interstate commerce
for conviction. See Powell, 693 F.3d at 407 (finding no abuse of discretion when District
8
Court used the same Third Circuit model instructions and a depletion-of-the-assets theory
for the Hobbs Act).
III. Conclusion
For the reasons stated above, we will affirm the judgment of the District Court.
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