United States v. McFarland , 281 F.3d 506 ( 2002 )

  •                     REVISED DECEMBER 13, 2002
                          FOR THE FIFTH CIRCUIT
                                 No. 00-10569
                               Plaintiff - Appellee
                               Defendant - Appellant
              Appeal from the United States District Court
                   for the Northern District of Texas
                               October 28, 2002
         By reason of an equally divided en banc court, we affirm the
    district court’s judgment of conviction and sentence.
    DAVIS and BENAVIDES, concurring in the affirmance of the
         It is a deep mystery to us why five judges thought it
    helpful or appropriate to take eight fellow judges to task for
    failing to explain why they decline to change the established law
    of this circuit and create a circuit split.   We of course
    disclaim their attempt to attribute views to us.
    GARWOOD, Circuit Judge, with whom JOLLY, HIGGINBOTHAM, JONES,
    SMITH, BARKSDALE, DEMOSS and CLEMENT, Circuit Judges, join,
           We respectfully dissent from the evenly divided Court’s per
    curiam, unexplained affirmance of these convictions.                       The nature
    of the case and our reasons for concluding that reversal is
    required are set forth below.
           James McFarland, Jr. appeals his conviction of four counts of
    robbery of local convenience stores in Fort Worth, Texas, in
    violation      of   18    U.S.C.      §   1951    (the     Hobbs    Act)    and    four
    corresponding counts of using and carrying a firearm during and in
    relation to those robberies in violation of 18 U.S.C. § 924(c)(1).
    He challenges his conviction on the Hobbs Act counts, asserting
    that     the    evidence        was       insufficient       to     establish       the
    constitutionally         or   statutorily       required    nexus    to     interstate
    commerce and that the jury charge respecting this element was
    defective.      A panel of this court affirmed per curiam.                        United
    States v. McFarland, 
    264 F.3d 557
     (5th Cir. 2001).                          The panel
    considered itself bound by our prior decision in United States v.
    119 F.3d 205
     (5th Cir. 1997), and United States v.
    151 F.3d 446
     (5th Cir. 1998), aff’d by an equally divided
    en banc court, 
    179 F.3d 230
     (5th Cir. 1999), cert. denied, 
    120 S. Ct. 2195
     (2000).     Judge Demoss specially concurred, 264 F.3d at
    559-61, urging en banc reconsideration in light of the intervening
    decisions in United States v. Morrison, 
    120 S. Ct. 1740
     (2000), and
    Jones v. United States, 
    120 S. Ct. 1904
     (2000), the equally divided
    nature of the Hickman en banc affirmance and Judge Higginbotham’s
    dissent therefrom.     The Court subsequently took the case en banc.
    United States v. McFarland, 
    281 F.3d 506
     (5th Cir. 2002).
                      Facts and Procedural Background
         McFarland was charged in a ten count indictment with five
    Hobbs Act robbery counts, and five related section 924(c)(1)
    counts,   pertaining   to   robberies   of   local   convenience   stores
    committed in Fort Worth, Texas, in November and December 1998.1        He
    was acquitted of one of the robbery counts and of its related
    section 924(c)(1) count.2     He was convicted on all the remaining
    counts. The four Hobbs Act counts of conviction (counts one, five,
    seven and nine) each alleged that McFarland “did knowingly and
    willfully obstruct, delay, and affect interstate commerce and did
    attempt to obstruct, delay and affect interstate commerce, by
    robbery, to wit: the defendant did take and obtain property, namely
          McFarland had been arrested for the robberies by Fort Worth
    police in late December 1998 and incarcerated in the Tarrant
    county, Texas, jail. He was later transferred into federal
    custody when the state dismissed its robbery charges against him
    and the United States Attorney adopted the robbery offenses for
    federal prosecution.
          The counts of acquittal were count three (robbery on
    November 24, 1998 of Haynie’s Inc.) and count four (the related §
    924(c)(1) count).
    United States Currency, from the person and in the presence of . .
    . [name of store employee], an employee of . . . [name and address
    of store], against his will by means of actual and threatened
    force, violence, and fear of injury to his person.”3
         The stores involved, the amounts taken, in each case from the
    cash register, and the relevant dates of the four robberies were
    the following:
         Count one, robbery November 20, 1998 of “Buy-Low” convenience
    store in which “about $100, close to $100" was taken;
         Count five, robbery December 3, 1998 of Gateway Discount
    Liquor store in which “somewhere around 15 [$1,500] to $2,000" cash
    was taken;
         Count seven, robbery December 11, 1998, Quickway Shopping
          Although, as indicated, these counts each reference
    “attempt,” the jury charge makes no reference whatever to
    “attempt,” and these counts were submitted to the jury entirely
    on a completed offense basis. There was no conspiracy allegation
    or count, each Hobbs Act count was submitted to the jury as a
    separate and distinct offense, and the jury was charged “A
    separate crime is charged in each count of the indictment. Each
    count and the evidence pertaining to it should be considered
    separately.” The defendant acted alone in each of the robberies,
    although there is evidence indicating that in at least one of
    them he was driven from the site just after the robbery by his
    wife or girlfriend. There is no suggestion that the defendant
    (or the wife or girlfriend) was other than a resident of Fort
    Worth, or that he had any intention or purpose to do or
    accomplish anything other than simply what he did, namely take
    cash from each store robbed.
    convenience store in which “about $50" cash was taken;4
         Count nine, robbery December 21, 1998, Jeff Stop convenience
    store, in which $145 cash was taken.
         Each of these four stores was a retail store, three being
    retail convenience stores and one a retail liquor store.            There is
    no evidence that any of the four stores made any sales or shipments
    to points or purchasers outside of Texas, or, indeed made any sales
    other than at the store premises to retail purchasers resident in
    Fort Worth.   There is no evidence that any of the stores was
    located at (or near) any transportation facility, such as a bus or
    train station or airport, or on an interstate highway.              Three of
    the stores–Buy-Low, Jeff Stop and Gateway Discount Liquor–were
    apparently stand-alone, single location, concerns, unaffiliated, by
    common ownership   or   otherwise,       with   any   other   concern.   The
    Quickway Shopping convenience store was apparently one of an
    unstated number of such stores so named, and William Gumfory, owner
    of the store robbed, may have owned some (or all) of the other
          “About $50" is the testimony of Rosa Candanosa, the
    employee on duty at the store when the robbery took place who
    took the money from the cash register and handed it to the
    defendant. The then store owner, William Gumfory, who at the
    time of trial in March 2000 had been retired for an unstated
    length of time, testified he was not at the store when the
    robbery occurred. When asked by the prosecution “can you tell us
    approximately how much your store was robbed the day Rosa
    Candanosa was working” he replied “I really don’t recall, but I
    would say in the neighborhood of $100.” No further precision was
    supplied nor is there any explanation of how or on what basis the
    “in the neighborhood of $100" was arrived at.
    Quickway Shopping convenience stores.5            There is no evidence that
    any of the four robbed stores (or any Quickway Shopping store) had
    any facilities, property, employees, bank accounts or activities
    outside of Fort Worth, or was owned, in whole or in part, by any
    one not a Fort Worth resident.
         Each of the four retail stores sold items of merchandise some
    of which the evidence showed were originally manufactured or
    processed outside of Texas.6         As to none of the three convenience
    stores   was   there    any    evidence       indicating    what    fraction     or
    percentage of their sales was of or allocable to items which had
    been manufactured or processed out of Texas, or what was the total
    dollar   amount   either      of   such   sales   or   of   all    sales   at   the
    particular store.      As to the Gateway Discount Liquor store, one of
    the three Texas wholesalers who supplied it testified that ninety-
    five percent of what he distributed both generally and to that
    particular store “came from outside the state of Texas” and that a
          The evidence in this respect is sparse, consisting only of
    the following. William Gumfory replied “That is correct” to the
    prosecutor’s question “Was one of the convenience stores that you
    owned Quickway Convenience Store shopping on 245 Bailey Fort
    Worth, Texas” [The store robbed on December 11, 1998]. And, a
    Weatherford, Texas, wholesaler testified that “we supplied
    Quickway Convenience Stores as a group,” that he supplied the
    Quickway store at 245 Bailey Street, had long done business with
    Mr. Gumfory, and answered “yes” to the prosecutor’s question did
    he “rely on Mr. Gumfory’s stores, at least in the December ‘98
    time frame, and stores like that, in conducting your business?”
          Such out-of-state items included the following. The Buy-
    Low store sold cigarettes, Coors beer and Gatorade. The Quickway
    Shopping store sold cigarettes, Tropicana Orange Juice, Coors
    beer, Gatorade, Nabisco snacks, Anacin and Purina dog food. The
    Jeff Stop sold cigarettes, Tropicana Orange Juice, Coors beer,
    Anacin, and Purina dog food. The Gateway Discount Liquor store
    sold various liquors produced outside of Texas.
    very small amount of liquor or wine products was produced in Texas.
    The only evidence as to the Gateway Discount Liquor Store’s dollar
    volume of sales and purchases was that it had $26,640.69 sales and
    $23,084.73 purchases from November 17 to November 30, 1998, and
    $34,910.03 sales and $36,547.67 purchases from December 1, 1998
    through December 17, 1998, and that in the retail liquor business
    people start buying after Thanksgiving and the busiest time of year
    is from October through December.
          There was no evidence that either the Buy-Low store or the
    Jeff Store acquired any of their inventory from sources outside of
    Texas, as opposed, for example, to acquiring it from a Texas
    wholesaler.   Indeed, there was no evidence whatever as to how or
    from whom or where or on what basis either of those two stores
    acquired their inventory, except that they purchased it.   The only
    evidence in this respect as to Gateway Discount Liquor is that it
    purchased its inventory from three Texas wholesalers, as required
    by Texas law.     The only one of these three wholesalers who
    testified stated “I pay for that product beforehand, and its mine
    to distribute and sell and collect.”   Quickway Shopping purchased
    its   merchandise inventory from a Weatherford, Texas, wholesaler,
    Hartnett Company, which in turn had purchased items including
    Tropicana juices from Florida, Wrigley’s Gum and Gatorade from
    Chicago, and Purina dog food from Oklahoma.      The goods Hartnett
    Company acquires come to a warehouse in Texas.   It then sells them
    to local retail stores (and to some stores in Kansas).     Quickway
    Shopping also sold money orders which it acquired from a company in
    Minnesota, and Mr. Gumfory testified “any money orders we sold we
    paid off the same day” and estimated “we sold probably 300 a
    month.”    It is not clear whether the 300 figure refers to the total
    number of individual money orders or the total face amount of the
    money orders sold per month.     Nor is it clear whether the reference
    is to all Gumfory’s Quickway Shopping stores or the particular one
    robbed of $50 on December 11, 1998.
         The owners when the robberies occurred of Buy-Low, Jeff Stop
    and Gateway Discount Liquor stores testified that the percentage of
    their gross sales proceeds used to restock inventory was seventy-
    five percent for Gateway and Jeff Stop and seventy percent for
    Gateway.    The former owner of Quickway Shopping testified that his
    profit margin on sales was approximately twenty-five percent,
    meaning that “if we sold $20,000 a month, we would have to buy
    $15,000 a month to replace it.”         These store owners each gave
    brief, conclusory testimony that robbery of money from the store
    would    cause    problems    respecting,   hurt   or   hinder   inventory
    purchases.7      However, there was no evidence that any of the stores
    actually did purchase less, or delay any purchase, as a result of
          The Buy-Low owner answered “yes” when asked “when money is
    stolen from you like that, does it cause you problems in rebuying
    inventory.” The Jeff Stop owner answered “yes” when asked “when
    your store is robbed of its money, does that hurt your ability to
    re-buy, repurchase merchandise to sell in your store.” The
    Quickway Shopping owner, asked “if your store is robbed of its
    money, does that hinder your ability to replenish your stock,”
    responded “well, naturally, we have less money to operate with.”
    The Gateway Discount Liquor owner, asked “if your store is robbed
    of money and you don’t have that money, it hurts your ability to
    replenish your stock,” replied “yes. It does hurt us.”
    Comparable general testimony was likewise given by the liquor
    wholesaler, the wholesaler who supplied Quickway Shopping and a
    Coors distributor; these wholesalers also gave general testimony
    that if their customers didn’t pay them they couldn’t pay the
    suppliers from whom they had purchased their products.
    (or following) the charged robbery of that store.        No questions in
    that respect were asked of the Buy-Low or Jeff Stop owners, and no
    one identified as a seller or supplier to either testified.8
    Likewise, neither the Gateway Discount Liquor owner (whose sales
    and purchases rose following the robbery) nor the former Quickway
    Shopping owner, nor their wholesalers, ever testified that as a
    result of the charged robbery the retail store actually reduced or
    delayed any purchases, and their testimony suggests that they did
    not.9        The Quickway Shopping former owner, when asked “were you not
    able to buy anything you would normally buy because that $100
    wasn’t there,” responded “we would be able to buy it, but we would
    have to take the $100 from the bank or somewhere to keep our
    balances in the correct proportion.”10       The Gateway Discount Liquor
    owner, when asked “after the $1,500 to $2,000 was taken from you by
    the defendant, did it cause your business problems,” responded
          The Buy-Low owner testified that at some unspecified time
    prior to the March 2000 trial he had elected to close his store,
    that “six or seven months” after the charged November 20, 1998
    robbery, “we had another robbery,” and that he closed his store
    for two reasons, “first of all” because his landlord sold the
    store premises and “number two” because “I’m tired of” being
          We also observe that the wholesaler supplying Quickway
    Shopping, when asked “how do you know a [customer] store has been
    robbed” responded “because they will call us and need an extra
    delivery because they don’t have any product in their store.”
    There is no evidence that this ever occurred respecting any of
    the four stores.
          The owner, when asked approximately how much was taken in
    the robbery, had stated “I really don’t recall, but I would say
    in the neighborhood of $100.” He was not present when the
    robbery occurred. The employee on duty testified that “about
    $50" was taken. There is no other evidence as to the amount
    taken (see note 4, supra).
         “It kept me a little stretched. In business every day
         sales are ringing, but we have to overstretch some bills
         and tell the distributor that we won’t be able to pay you
         today, but we’ll pay you in the next two or three days.”
    Apart from the just above quoted testimony of the Gateway Discount
    Liquor owner, there was no evidence that any of the robberies
    resulted in any of the victim stores even slightly delaying any
    payment to any party as a result of the charged robberies.
         McFarland made and renewed timely motions for judgment of
    acquittal on the grounds, inter alia, that the required nexus to
    interstate commerce was not shown as to any of the Hobbs Act
    counts.   These motions were overruled.    The trial court’s jury
    charge instructed, with reference to the Hobbs Act counts, that,
    among other things:
         “If you decide that there is any effect at all of [sic]
         interstate commerce, then that is enough to satisfy this
         element. The effect can be minimal. A showing that a
         business regularly buys goods from out of state allows an
         inference that a robbery may impair a future purchase .
         . . . If you find beyond a reasonable doubt that the
         defendant’s conduct affected interstate commerce, then
         you may conclude that the government has met its burden
         of proof as to the interstate commerce element of the
    McFarland objected to the word “any” in the first sentence above
    quoted, objected to the sentence “the effect can be minimal,” and
    to the failure to include the word “substantially,” as he had
    previously requested, between “conduct” and “interstate commerce”
    in the last above quoted sentence.      These objections were all
         As noted, the principal issue presented is whether the Hobbs
    Act extends, or may be applied consistent with the limitations of
    the Commerce Clause reflected by Lopez and Morrison, to these
    robberies of local retail stores.
         I.    The Act, its history and Supreme Court interpretation
         The Hobbs Act, 18 U.S.C. § 1951, provides in relevant part:
         “ (a) 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 so to do, or commits or threatens
         physical violence to any person or property in
         furtherance of a plan or purpose to do anything in
         violation of this section shall be fined under this title
         or imprisoned not more than twenty years, or both.
              (b) As used in this section–
         . . .
                      (3) The term “commerce” means commerce
                 within the District of Columbia, or any
                 Territory or Possession of the United States;
                 all commerce between any point in a State,
                 Territory, Possession, or the District of
                 Columbia and any point outside thereof; all
                 commerce between points within the same State
                 through any place outside such State; and all
                 other commerce over which the United States
                 has jurisdiction.”11
          The balance of the statute consists of paragraphs (1) and
    (2) of subsection (b), reading as follows:
         “ (1) The term ‘robbery’ means the unlawful taking or
         obtaining of personal property from the person or in
         the presence of another, against his will, by means of
         actual or threatened force, or violence, or fear of
         injury, immediate or future, to his person or property,
         or property in his custody or possession, or the person
         or property of a relative or member of his family or of
         anyone in his company at the time of the taking or
           (2) The term ‘extortion’ means the obtaining of
         property from another, with his consent, induced by
         wrongful use of actual or threatened force, violence,
         or fear, or under color of official right.”
    and subsection (c), which provides: “ (c) This section shall not
    be construed to repeal, modify or affect section 17 of Title 15,
         It was originally enacted July 3, 1946, ch. 537, Pub. L. 486,
    60 Stat. 420,12 as an amendment to the generally similar Anti-
    Racketeering Act of June 18, 1934 (the 1934 Act), Pub. L. 376, 48
    Stat. 979-80.13   The Hobbs Act was occasioned by the holding in
    United States v. Local 807, 
    62 S. Ct. 642
     (1942) that the 1934 Act,
    by virtue of its exclusion relating to an employer’s payment of
    wages to an employee and its provision indicating an intent not to
    diminish union rights, did not apply to the activities of members
    of a New York City truck drivers union who, by violence or threats,
    extracted payments for themselves from out-of-state truckers in
    return for the unwanted and superfluous service of driving the
    trucks to and from the city.   Id., at 643-44, 649; United States v.
    99 S. Ct. 1007
    , 1011 (1973) (“[A]s frequently emphasized on
    the floor of the House, the limited effect of the bill was to shut
    off the possibility opened by the Local 807 case, that union
    members could use their protected status to exact payments from
    sections 52, 101-115, 151-166 of Title 29 or sections 151-188 of
    Title 45.”
          In the 1948 revision and codification of Title 18, purely
    formal, stylistic changes were made to the Hobbs Act (largely
    reordering and consolidating its subsections and paragraphs).
    June 25, 1948, Pub. L. 772, c. 645, 62 Stat. 793-794. In 1994
    the words immediately following “fined” in subsection (a) were
    changed from “not more than $10,000" to “under this title.”
    Sept. 13, 1994, Pub. L. 103-322, Title XXXIII, § 330016(1)(L),
    108 Stat. 2147.
          The 1934 Act was subsequently codified, without
    substantive change, as §§ 420a through 420e of Title 18, U.S.
    Code 1940 Ed.
    employers for imposed, unwanted and superfluous services.”).14
         The Senate Report on S. 2248, which (as amended) became the
    1934 Act, states that “the nearest approach to prosecution of
    racketeers as such has been under the Sherman Antitrust Act” but
    such prosecutions have been hampered by the requirement of proving
    conspiracy or monopoly and by being merely a misdemeanor, and that
    the proposed bill “is designed to avoid many of the embarrassing
    limitations . . . of the Sherman Act, and to extend Federal
    jurisdiction over all restraints of any commerce within the scope
          See also United States v. Green, 
    76 S. Ct. 522
    , 525, 526
    (1956) (“The legislative history makes clear that the new [Hobbs]
    Act was meant to eliminate any grounds for future judicial
    conclusions that Congress did not intend to cover the employer-
    employee relationship;” “The city truckers in the Local 807 case
    similarly were trying by force to get jobs from the out-of-state
    truckers by threats and violence”); H.R. Rep. 238, 79th Cong.,
    1st Sess. (1945) (reporting favorably H.R. 32 which became the
    Hobbs Act, the report consisting mostly of verbatim quotation of
    the entire Local 807 majority opinion and dissent); 89 Cong. Rec.
    3202 (1943) (“. . . it is the intention of the Committee on the
    Judiciary to enact legislation for one purpose, and one purpose
    alone, namely, to correct the unfortunate decision in the Local
    807 case”) (Rep. Walter); 91 Cong. Rec. 11841-11842 (1945) (“I
    want it distinctly understood that the legislation under
    consideration is designed to meet one situation and one situation
    alone. . . . Let us see what that situation is. Unfortunately,
    the Supreme Court in the famous Local 807 case by a very strained
    construction . . .”) (Rep. Walter); 91 Cong. Rec. 11841 (1945)
    (“The sole purpose of the bill . . . is to undo the outrageous
    opinion of the Supreme Court in the Teamsters Union case where
    that Court legitimatized highway robbery committed by a labor
    goon”) (Rep. Cox); 91 Cong. Rec. 11900 (1945) (“This bill is
    designed simply to prevent both union members and nonunion people
    from making use of robbery and extortion under the guise of
    obtaining wages in the obstruction of interstate commerce. That
    is all it does. . . . this bill is made necessary by the amazing
    decision of the Supreme Court in the case of the United States
    against Teamsters Union 807 . . . That is all this bill does. We
    think a mistake was made by the Supreme Court. We are attempting
    to correct it . . .”) (Rep. Hancock).
         The Congressional Record does not reflect any Senate debate
    or discussion of the Hobbs Act.
    of the Federal Government’s constitutional powers.”            S. Rep. 532,
    73rd Cong., 2nd Sess. (1934).      The House Report on S. 2248, which
    recommends a rewritten form of S. 2248, states “this is the so-
    called ‘antiracketeering bill’ for the suppression of racketeering
    in interstate commerce,” and quotes a           memorandum from Attorney
    General   Cummings     noting   that    the   bill,   with   the   suggested
    amendments, had been approved by representatives of organized labor
    and that “The Sherman Antitrust Act is too restricted in its terms
    and the penalties thereunder are too moderate to make that act an
    effective weapon in prosecuting racketeers.           The antiracketeering
    bill would extend the Federal jurisdiction in those cases where
    racketeering acts are related to interstate commerce and are
    therefore of concern to the Nation as a whole.”         H. Rep. 1833, 73rd
    Cong., 2nd Sess. (1934).        Despite the breadth of some of this
    language,   it   may    be   seriously      doubted   that   Congress   then
    contemplated that it was making a federal crime the “plain vanilla”
    cash robbery from a local retail store of the sort here involved.
    Moreover, at that time the federal government’s commerce power was
    generally viewed far less expansively than it later came to be.
    See Lopez, 115 S.Ct. at 1628.      The then view of the commerce power
    is also suggested by S. Rep. 1189, 75th Cong., 1st Sess. (1937),
    the report of the principal congressional committee (the Copeland
    Committee) working on the 1934 Act (see United States v. Culbert,
    98 S. Ct. 1112
    , 1115 & n.6 (1978)), recounting its investigations,
    commencing in 1933, into racketeering and the recommendations it
    had made for legislation (including the 1934 Act).             This report
    reflects an understanding that there were meaningful limits on the
    commerce power.    For example, the report mentions the “Poultry
    Racket” “practiced upon the live-poultry business in New York
    City,” to which the “poultry comes from the Southern and Midwestern
    states,” and, due to the rackets, the charge for shipping a carload
    of poultry from Chicago to New York was less than the charge for
    its unloading and delivery in New York City.         Id. at 16, 17.      The
    report notes “[w]hile some phases of the poultry racket were of a
    local nature and not within Federal jurisdiction, the committee
    felt that insofar as the transportation and distribution of live
    poultry was interstate in character, the necessary legislation
    should be enacted. . . .”    Id. at 18 (emphasis added).           The report
    also discusses    ”the   ‘kick-back’   racket   .   .   .   that   nefarious
    practice of requiring the employee to give back to his employer a
    percentage of his earnings,” id., observes, respecting the “kick-
    back racket,” that “a great proportion of the complaints came from
    the building trades” but “[i]t is, of course, practiced in other
    industries,” id. at 19, and concludes, respecting the kick-back
    racket, that: “After a thorough study of the testimony given and
    the complaints made, the committee concluded that the majority of
    the cases presented were of a local nature and were not within the
    jurisdiction of the Federal Government.         But it was decided that
    the committee could effectuate the purpose of certain Federal
    statutes concerning rates of wages to be paid on work done under
    [Federal] Government contracts.”       Id. at 20 (emphasis added).15
          We are aware of the language in Judge Learned Hand’s
    opinion in United States v. Local 807, 
    118 F.2d 684
     (2d Cir.
    1941), aff’d, United States v. Local 807, 
    62 S. Ct. 642
    where, in the course of reversing the convictions of the union
    truckers for violating the 1934 Act, he remarked “[f]or a number
    of years before 1934–at least in the City of New York–the levy of
    blackmail upon industry, especially upon relatively small shops,
    had become very serious, and the local authorities either would
    not, or could not, check it. . . . It was, at least primarily, to
    check such Camorras that Congress passed this measure [the 1934
    Act].” 118 F.2d at 687-88. In United States v. Staszcuk, 
    517 F.2d 53
     (7th Cir. 1975), the en banc Seventh Circuit, in
    upholding (over three dissents) a Hobbs Act conviction for
    extorting $3,000 from a property owner to procure a zoning change
    authorizing construction of an animal hospital (which would have
    involved importing equipment from other states) despite the fact
    that the owner, for unrelated reasons, later elected not to build
    the hospital and improved the property with other construction
    which would have been permitted without the zoning change, relied
    on this language of Judge Hand’s to broadly construe the Hobbs
    Act’s commerce coverage, Straszcuk at 57, in support of its
    ultimate conclusion to affirm even though “the record
    demonstrates the extortion had no actual effect on commerce.”
    Id. at 60. We attach no significance to Judge Hand’s quoted
    language. In the first place, Judge Hand in the passage in
    question was not addressing the matter of an interstate commerce
    nexus–which was plain and undisputed in the case before him–but
    was rather distinguishing labor related extortion from other
    kinds. Further, it is entirely unclear what he meant–especially
    as it might bear on interstate commerce–by “industry” and
    “relatively small shops.” And, Judge Hand cites absolutely
    nothing–no legislative history, no publications, nor anything
    else–in support of his quoted observations (nor is any such
    support cited in Staszcuk). Finally, the quoted passage in Judge
    Hand’s opinion was not cited or alluded to, or anything similar
    to it stated, by the Supreme Court in the Local 807 case (or in
    any other case of which we are aware). Doubtless in 1933 and
    1934 there was great concern about rackets and crime, but that
    does not suggest that Congress had a broad view of its Commerce
    Clause powers or intended to legislate in matters “of a local
    nature.” In addition to the passages of the Copeland Committee
    report cited in the text above, we also note the following:
         “Demands in great numbers for all types of
         investigations, into all kinds of wrongs, reached the
         committee. These varied from requests that the
         committee investigate the internal affairs of
         municipalities, to requests that it look into specific
         financial transactions, alleged unconscionable mortgage
         foreclosures, and the like. The public generally
         seemed to be unaware of, or at least not alive to, the
         jurisdictional boundaries in this field created by the
         constitutional limitations on the power of Congress.
         . . .
         [I]t was clear that the committee was not intended as a
         superpolice, nor as a prosecuting or judicial body for
         By the time the Hobbs Act eventually passed, the Supreme Court
    had already begun its articulation of a Commerce Clause power
    greatly expanded over that as previously defined.   See Lopez, 115
    S.Ct. at 1628.   However, this does not seem to have been a matter
    at all the subject of consideration by Congress in enacting the
    Hobbs Act, and the Act was merely directed at changing the result
    in the Local 807 case.   See note 14 and accompanying text, supra.
    The wording of the Hobbs Act did not in any presently meaningful
    way change the 1934 Act’s interstate commerce nexus requirement.16
         the supervision and investigation of the activities of
         local authorities. On the contrary, the subcommittee
         was organized to consider ways and means by which the
         Federal Government might aid in the suppression of
         rackets and racketeering, and, therefore, its activity
         would have to be limited for the most part to matters
         falling within the categories of interstate commerce
         and use of the mails.”
    Id. at 2.
          The 1934 Act defined “trade or commerce” as “trade or
    commerce between any States, with foreign nations, in the
    District of Columbia, in any Territory of the United States,
    between any such Territory or the District of Columbia and any
    state or other Territory, and all other commerce over which the
    United States has constitutional jurisdiction.” The Hobbs Act
    definition is of the term “commerce” instead of the 1934 Act’s
    “trade or commerce,” defined “Territory” as meaning “any
    Territory or possession of the United States,” omitted the word
    “constitutional” just before “jurisdiction,” and added the
    category “between points within the same State, Territory, or the
    District of Columbia but through any place outside thereof.” The
    Hobbs Act definition is otherwise the same as in the 1934 Act.
    The Hobbs Act’s addition of the latter category, if meaningful at
    all, would merely appear to suggest concern that without it
    something might possibly have been inadvertently excluded. The
    concluding “all other commerce” clause in the Hobbs Act (and in
    the 1934 Act) would appear to include commerce between points in
    a single State and an Indian Tribe within that state, see, e.g.,
    Morton v. Moncari, 
    94 S. Ct. 2474
    , 2483 (1974); Perrin v. United
    34 S. Ct. 388
    , 389 (1914), and commerce between points in
    the same state by a vessel traveling along the portion of a
           Nor is any more expansive relation to interstate commerce
    suggested by the Congressional committee reports on H.R. 32, the
    bill which became the Hobbs Act.           The House Committee on the
    Judiciary report states that the bill is a “successor” to similar
    bills introduced in the 77th and 78th Congresses (the first not
    acted on, the second passing the House but not acted on by the
    Senate), and that the bill’s purpose is “to prevent interference
    with interstate commerce by robbery or extortion.”         H. Rep. 288,
    79th Cong., 1st Sess. (1945), at 1.         It goes on to say that the
           “is an amendment of the existing antiracketeering law
           which was enacted in 1934. It was passed in an effort to
           eliminate racketeering in relation to interstate
           commerce, of concern to the Nation as a whole.      That
           statute came under examination of the Supreme Court in
           United States v. Local 807, and the opinion in that case
           is set out in full, both the majority opinion and the
           dissent:”, id. at 1, 2,
    which opinions the report then proceeds to quote in full.         Id. at
    2-9.   Thereafter, the report recites that the bill’s objective “is
    to   prevent   anyone   from   obstructing,    delaying,   or   affecting
    commerce, or the movement of any article or commodity in commerce
    by robbery or extortion.”      Id. at 9.   The concluding section of the
    navigable waterway wholly within that state. See, e.g., Ex Parte
    11 S. Ct. 840
    , 842 (1891).
         The required nexus to commerce in the proscriptive section
    of the 1934 Act (“Any person who, in connection with or in
    relation to any act in any way or in any degree affecting trade
    or commerce or any article or commodity moving or about to move
    in trade or commerce”) appears as broad as that of the comparable
    provision in Hobbs Act (“whoever in any way or degree obstructs,
    delays, or affects commerce, or the movement of any article or
    commodity in commerce”), the latter essentially treating
    “movement” as the equivalent of “moving or about to move,” and
    substituting “commerce” for “trade or commerce.”
    report commences by stating “The Congress does not need to be
    reminded that the Constitution of the United States confers on it
    the exclusive and unlimites [sic] power to regulate interstate
    commerce,” id. at 10 (emphasis added), that “the members of the
    Constitutional Convention agreed that our Federal Government would
    be destroyed if barriers should be erected in any way to impede the
    free flow of interstate commerce,” and, finally, that “This bill
    would outlaw two kinds of criminal interference with interstate
    commerce.”   Id.   Certainly what this report is concerned with is
    interference with the movement of articles in interstate commerce,
    with interstate commerce itself.17
         The debates in the House are wholly consistent with this.18
    As previously observed, these debates reflect that the “sole”
    purpose and effect of the Hobbs Act was to override the Local 807
    case and remove the exemption from the 1934 Act which that case was
    thought to create for union members.      See note 14, supra, and
    accompanying text.   Two other aspects of these debates should be
         First, the discussion of the evils the pending bill was
          The brief, half page Senate report does not point in any
    different direction. Its only relevant statement is the
         “The purpose of this bill is to prevent interference
         with interstate commerce by robbery or extortion, as
         defined in the bill. . . . this bill is an amendment of
         the existing law which was enacted in 1934. The
         objective of the amendments is to prevent anyone from
         obstructing, delaying, or affecting commerce, or the
         movement of any article or commodity in commerce by
         robbery or extortion.”
          The Congressional Record does not reflect any debate or
    discussion in the Senate.
    designed to eliminate focused almost entirely on the interruption
    of commodity shipments actually moving in interstate commerce,
    principally agricultural commodities being carried by truck across
    state lines.19
          See, e.g., 89 Cong. Rec. 3203 (1943) (Rep. Walter)
    (“Farmer after farmer in the eastern part of Pennsylvania has
    been stopped at the entrance to the Holland Tunnel [into New
    York], compelled to get off his truck and give to some man $9.40
    to deliver that truck to a point where that farmer had been
    delivering his produce for a great many years”); 91 Cong. Rec.
    11902 (1945) (Rep. Walter) (“a processor from . . . Bethlehem
    [Pa] . . . informed me he was no longer shipping articles to New
    York by truck but was shipping them by train because he was
    compelled to kick in . . . $10 for every load of his materials
    that went into the gentleman’s city”); id. at 11903 (“the
    practice of members of that union to post themselves at the
    bridges and at the Holland Tunnel. Here would come a farmer,
    say, from North Carolina with a load of vegetables. The union
    members would stop him at the bridge . . .”) (Rep. Gwynne); id.
    at 11904 (“some of us out in the country know something more
    about New York . . . some of my [Pa.] neighbors are paying as
    much as $90 a load to take their produce in and get out alive in
    their trucks”) (Rep. Gross); id. at 11905 (“The products of the
    farms were being trucked from New Jersey, Pennsylvania, and
    Maryland, and hundreds of these trucks were help up when they
    approached the city limits of New York and especially the Holland
    Tunnel”) (Rep. Robsion); id. at 11906 (“These crimes are not
    confined to racketeers in the labor movement. We have many
    instances where one group of farmers has taken possession
    unlawfully of the trucks of other farmers and overturned the
    trucks and destroyed the produce of the others by violence and
    fear and prevented the trucks moving in interstate commerce”)
    (Rep. Robsion); id. at 11910 (article from Dawson, Minnesota,
    paper reciting that Dawson farmer sent to De Moines, Iowa, to
    pick up machinery to install driers at Dawson elevators was
    forced by Iowa labor groups to return to Dawson without his load
    and to join union and pay dues “before they would permit him to
    leave with his truck”) (Rep. Anderson); id. at 11911 (“Let us
    illustrate what we are proposing to stop by this measure we are
    now considering. Here comes a farmer with a load of
    produce–milk, butter, eggs, vegetables, . . . As they near a
    State line in going to market to sell that produce a thug they
    never saw before or a coterie of thugs comes up to the truck and
    says, ‘Here, stop your truck.’”) (Rep. Jennings); id. at 11917
    (“I want the farmers of this Nation protected from hijacking,
    robbery, and assault when they deliver milk from New Jersey to
    New York, or produce from South Carolina to New York”) (Rep.
         Other aspects of the debate likewise reflect an emphasis that
    the bill applied only to interstate commerce, without any broad
    reading of that concept.    See, e.g., 89 Cong. Rec. 3210 (1943) (“It
    is directed against robbery and extortion when used to obstruct the
    free flow of goods in interstate commerce, no matter who the
    offenders may be.”) (Rep. Hancock); 91 Cong. Rec. 11843 (1943) (“.
    . . it is the duty of Congress to protect its citizens and the
    people who use the highways in interstate commerce. Remember, this
    proposal applies to interstate commerce only. . . . if interstate
    commerce is being interfered with, and if the farmers and truckers,
    who take food into New York from the surrounding territory and
    States, must submit to the treatment outlined by Chief Justice
    Stone, then it seems clear that it is the obligation of the
    Congress   to   furnish   national   protection   in   these   interstate
    operations.” (emphasis added) (Rep. Michener); id. (Rep. Graham.
    “Is not this bill limited to interstate commerce alone?”             Rep.
    Michener. “Certainly.”; emphasis added); id. (Rep. Robsion. “Would
    this apply to those conditions in a number of other States where
    they meet and overturn milk trucks and do other things like that?”
    Rep. Michener.    “This bill applies to interstate commerce only.”;
    emphasis added); id. at 11912 (“. . . the sole and simple purpose,
    the single purpose, of this bill is to do the best we can to
    protect interstate commerce and free the highways and streets of
    this country of robbers”) (Rep. Hobbs).     The following exchange is
    similarly relevant:
         “Mr. GRANGER. This applies only to interstate commerce,
         does it not?
         Mr. SPRINGER. It applies to interstate commerce.
         Mr. GRANGER. It would not affect a farmer who picked up
         produce within his own State and delivered it within his
         own State? That would be intrastate commerce?
         Mr. SPRINGER. Yes.
         Mr. GRANGER. What is interstate commerce? Is a farmer
         who crosses the State line with his own property engaged
         in interstate commerce?
         Mr. SPRINGER. There is no doubt but that he is engaged
         in interstate commerce when he crosses a State line.
         Mr. ROBSION of Kentucky. A transaction within a State
         may be interstate commerce if it oppresses and interrupts
         seriously or in a substantial way goods moving from one
         State to another?
         Mr. SPRINGER. The gentleman is entirely correct. That
         has been defined by judicial decisions.” Id. at 11910.
    We are aware of nothing in the legislative history relating or
    referring to the aggregation principle or anything comparable to it
    as applicable to discrete intrastate actions which individually
    have only a minimal, indirect and attenuated effect on interstate
         This legislative history strongly suggests to us that Congress
    in enacting the Hobbs Act was concerned with protecting against
    relatively direct obstruction of the actual movement of goods in
    interstate commerce, and did not contemplate its application to
    robberies of local retail stores such as those here.20 However, the
          Moreover, so far as we are aware the 1934 Act was never
    applied to robberies of local retail stores such as those here,
    and for many years the Hobbs Act apparently was not either. Cf.
    United States v. Enmons, 
    93 S. Ct. 1007
    , 10015 (1973) (“It is
    unlikely that if Congress had indeed wrought such a major
    expansion of federal criminal jurisdiction in enacting the Hobbs
    Act, its action would have so long passed unobserved;”also
    invoking principles of strict construction of criminal statutes
    and reluctance to assume significant change in relation between
    federal and state criminal jurisdiction in declining broad
    construction of Hobbs Act). Further, the “depletion of assets”
    theory, which is essentially the basis for Hobbs Act prosecutions
    such as that in this case, seems to have had its origin in United
    States v. Provenzano, 
    334 F.2d 678
     (3d Cir. 1964), where, in
    upholding a “depletion of assets” jury charge in a conviction for
    extorting $30,000 from an interstate trucking company to prevent
    Supreme Court in Stirone v. United States, 
    80 S. Ct. 270
    stated that 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.     The Act outlaws such interference ‘in any way
    or degree.’     18 U.S.C. § 1951(a) . . .”        Id. at 272.    The victim
    there was extorted of some $31,000 to avoid cancellation of his
    contract to supply from his Pennsylvania plant concrete for the
    construction of a Pennsylvania steel mill; the victim depended on
    shipments of sand to him from outside of Pennsylvania to make the
    concrete, and such shipments would have slackened or stopped had
    his contract to supply the steel mill job been cancelled.           Id.   The
    Court     observed   that   “[i]t   was   to   free   commerce   from     such
    destructive burdens that the Hobbs Act was passed,” citing United
    States v. Green, 
    76 S. Ct. 522
     (1956).          Stirone, at 272.21   Stirone
    labor disruption of its terminal, the court stated:
         “We can perceive no reason why extortive payments, in
         substantial amounts, paid as here from the treasury of
         a company engaged in interstate commerce in order to
         avoid obstruction of the company’s interstate business
         should not be deemed to affect commerce and therefore
         to lie within the proscription of the Hobbs Act. . . .
         This was the substance of the court’s charge. We hold
         it to have been a correct one in the light of all the
         circumstances.” Id. at 693 (emphasis added).
    In Esperti v. United States, 
    406 F.2d 148
     (5th Cir. 1969), we
    relied on Provenzano’s depletion of assets theory in sustaining a
    Hobbs Act conviction for robbery of $2,000 (proceeds of a sale to
    a Chicago customer) and attempted extortion (to collect a $25,000
    alleged debt to a New Yorker), the Florida victim being “Red Ball
    Merchandising” which “sold close-out merchandise” and whose
    “interstate sales and purchases amounted to ninety per cent of
    its business.”
          In Green the Court held the Hobbs Act applied to a union
    agent’s threats of violence to force an employer to pay union
    members for unwanted and superfluous services notwithstanding
    went on to state that it did not have to decide the “more difficult
    question” of whether an adequate interstate commerce nexus would
    have been shown by the evidence that the steel mill would produce
    steel to be shipped in interstate commerce.       Id. at 272.      Later, in
    United States v. Culbert, 
    98 S. Ct. 1112
     (1978), the court stated
    that the “in any way or degree . . . affected commerce . . . by
    robbery   or   extortion”   words   of   the   Hobbs   Act   “do   not   lend
    themselves to restrictive interpretation,” and proceeded to quote
    Stirone’s statement that they manifest “‘a purpose to use all the
    constitutional power Congress has to punish interference with
    interstate commerce by extortion, robbery or physical violence.’”
    Culbert at 1113.22
    that payments to the union or the agent personally were not
    sought, noting that “The city truckers in the Local 807 case
    similarly were trying by force to get jobs and pay from the out-
    of-state truckers by threats and violence. The Hobbs Act was
    meant to stop just such conduct.” Green at 526. The Court went
    on to observe “[w]e said in the Local 807 case that racketeering
    affecting interstate commerce was within federal legislative
    control.” Id. Green then cites Cleveland v. United States, 
    67 S. Ct. 13
     (1946) (upholding Mann Act convictions for transporting
    a “plural wife across state lines” for purposes of cohabitation,
    stating “[t]he power of Congress over the instrumentalities of
    interstate commerce is plenary,” id. at 16) and Mitchell v.
    Vollmer & Co., 
    75 S. Ct. 860
     (1955) (workers on project improving
    the Algiers Lock, a unit of the Gulf Intercoastal Waterway, are
    “engaged in commerce” for purposes of overtime under the FLSA;
    “the work of improving existing facilities of interstate
    commerce” is activity in commerce just as “[r]epair of facilities
    of interstate commerce is activity ‘in commerce’”).
          Culbert involved a Hobbs Act conviction for attempting to
    extort “$100,000 from a federally insured bank.” Id. Cf.
    Westfall v. United States, 
    47 S. Ct. 629
     (1927) (defrauding state
    bank which is a member of the Federal Reserve System is properly
    a federal offense). A divided Ninth Circuit panel had reversed
    the conviction because there was no evidence “that the attempted
    extortion of the bank assets related, in any way, to
    ‘racketeering.’” United States v. Culbert, 
    548 F.2d 1355
    , 1357
    (9th Cir. 1977). The Ninth Circuit reasoned that the Hobbs Act
         In Jones v. United States, 
    120 S. Ct. 1904
     (2000), the Court
    construed the federal arson statute, 18 U.S.C. § 844(i), as not
    extending to arson of a home insured by an out-of-state insurer,
    financed by an out-of-state lender, and furnished with gas from
    out-of-state, relying in part on the principle of avoiding a
    statutory   construction   under        which   “‘grave   and   doubtful
    constitutional questions arise,’” and stating “[g]iven the concerns
    carried forward the 1934 Act’s antiracketeering purpose and that
    “[g]iven the applicable de minimus burden on interstate commerce
    rule . . . a contrary interpretation of the Act would justify
    usurpation of virtually the entire criminal jurisdiction of the
    states.” Id. (the Ninth Circuit also relied on the similar
    conclusions of the Sixth Circuit in United States v. Yokely, 
    542 F.2d 300
     (6th Cir. 1976)). The Supreme Court reversed the Ninth
    Circuit, holding that “racketeering” was not an element of an
    offense under the Hobbs Act, relying on several grounds: first,
    “[n]othing on the face of the statute suggests a congressional
    intent to limit its coverage to . . . ‘racketeering’” and the
    relevant statutory words “do not lend themselves to restrictive
    interpretation,” id. at 1113; second, the statute carefully
    defines terms, but makes no “reference to racketeering–much less
    any definition of the word,” id. at 1114; third, making
    racketeering an element” might create serious constitutional
    problems, in view of the absence of any definition of
    racketeering in the statute,” id.; fourth, the legislative
    history of the 1934 Act reflects that “Congress simply did not
    intend to make racketeering a separate, unstated element of an
    Anti-Racketeering Act violation,” id. at 1115; fifth, the Hobbs
    Act’s purpose was simply to correct the “perceived deficiency” in
    the 1934 Act (reflected by the Local 807 case) and “that
    deficiency had nothing to do with the element of racketeering,”
    id.; sixth, the rule of lenity did not apply, as it only applies
    “‘when we are uncertain about the statute’s meaning,’” id. at
    1116; and seventh, Congress was well aware that state laws
    prohibited robbery and extortion. Id. at 1117. In the latter
    connection, we observe that the legislative history clearly
    indicates that the statements made regarding state law
    prohibition of robbery and extortion were directed at answering
    the criticism that the proposed Hobbs Act was anti labor and
    infringed the rights of labor (which was the major issue
    respecting the Act), the answer being that the proposed statute
    did not prohibit anything not already unlawful; the statements in
    no way related to the nature of the required interstate commerce
    brought to the fore by Lopez, it is appropriate to avoid the
    constitutional question that would arise were we to read § 844(i)
    to render the ‘traditionally local criminal conduct’ in which
    petitioner Jones engaged ‘a matter for federal enforcement.’” Jones
    at 1911, 1912.    Accordingly, in Jones, the court read the words
    “used in” in section 844(i) as modifying “any activity affecting
    interstate . . . commerce,” so that “an owner-occupied residence
    not used for any commercial purpose does not qualify as property
    ‘used in’ commerce or commerce-affecting activity” within the
    meaning of section 844(i).      Id. at 1908, 1910-11.        However, the
    Hobbs Act contains no comparable special language upon which an
    analogous limiting construction can be focused.       It does not at all
    differentiate    between   robberies   which   “in   any   way   or   degree
    obstruct[], delay[], or affect[] commerce or the movement of any
    article or commodity in commerce.” Thus, driven by the above noted
    language in Stirone and Culbert, we conclude that to determine
    whether the Hobbs Act applies to these offenses we must examine the
    limits of the commerce power as articulated by the Supreme Court in
    Lopez and Morrison.
    II.   Lopez and Morrison applied to this Hobbs Act prosecution
          A.   Overview; Commerce Power Categories
          In Lopez the Court “identified three broad categories of
    activity that Congress may regulate under its commerce power,”
          “First, Congress may regulate the use of the channels of
    interstate commerce” (citing, inter alia, United States v. Darby,
    61 S. Ct. 451
     at 457 (1941), sustaining statute prohibiting shipment
    in interstate commerce of goods produced for interstate commerce by
    employees whose wages and hours do not conform to the requirements
    of the Fair Labor Standards Act; statute not invalid even if its
    motive was    to    regulate   local     wages    not   otherwise    subject   to
    commerce power).
           “Second, Congress is empowered to regulate and protect the
    instrumentalities of interstate commerce, or persons or things in
    interstate commerce, even though the threat may come only from
    intrastate activities” (listing as examples “‘destruction of an
    aircraft,’” “‘thefts from interstate shipments,’” and Southern R.
    Co. v. United States, 
    32 S. Ct. 2
     (1914), upholding Safety Appliance
    Act equipment requirements as applied to cars of interstate carrier
    moving on interstate railroad line even though particular cars were
    carrying only intrastate traffic).
           Third, “Congress’ commerce authority includes the power to
    regulate    those    activities     having    a     substantial     relation   to
    interstate commerce . . . i.e. those activities that substantially
    affect interstate commerce. . . .
           Within this final category, admittedly, our case law has not
    been clear whether an activity must ‘affect’ or ‘substantially
    affect’ interstate commerce in order to be within Congress’ power
    to regulate it under the Commerce Clause. . . . We conclude,
    consistent with the great weight of our case law, that the proper
    test   requires     an   analysis   of    whether    the   regulated   activity
    ‘substantially affects’ interstate commerce.”                United States v.
    115 S. Ct. 1624
    , 1629-30 (1995).
           Lopez held unconstitutional, as beyond Congress’s power under
    the Commerce Clause, the Gun-Free School Zones Act of 1990, 18
    U.S.C. § 922(q) (1988 ed., Supp. V).        It “quickly disposed of” the
    first and second categories of congressional commerce power, noting
    that section 922(q) clearly fell within neither and that “if §
    922(q) is to be sustained, it must be under the third category as
    a regulation of an activity that substantially affects interstate
    commerce.”    Id. at 1630.      It then went on to hold that the statute
    likewise could not be sustained under the third category, rejecting
    the Government’s argument that “possession of a firearm in a local
    school zone does indeed substantially affect interstate commerce.”
    Id. at 1632.
         Some five years later in Morrison the Court reconfirmed
    Lopez’s Commerce      Clause    analysis   and   holding   as   well    as   its
    articulation and description of the “‘three broad categories of
    activity that Congress may regulate under its commerce power.’”
    Morrison at 1749.        Morrison held unconstitutional, as beyond
    Congress’s power under the Commerce Clause, 42 U.S.C. § 13981, the
    civil action portion of the Violence Against Women Act of 1994.23
    Morrison observes that “[p]etitioners do not contend that these
    cases fall within either of the first two categories of Commerce
    Clause regulation.     They seek to sustain § 13981 as a regulation of
    activity that substantially affects interstate commerce. . . . [w]e
    agree that this is the proper inquiry.”           Id. at 1749.     The Court
    held that section 13981 did not meet the requirements of the third
    Lopez     category,   stating    “petitioners’    reasoning     would    allow
          Morrison also held § 13981 beyond Congress’s power under §
    5 of the Fourteenth Amendment. Id. at 1755 et seq.
    Congress    to    regulate      any    crime   so   long   as   the   nationwide,
    aggregated       impact   of    that   crime     has   substantial    effects   on
    employment, production, transit, or consumption,” Morrison at 1752-
    53, contrary to the constitutionally required “distinction between
    what is truly national and what is truly local.”                Id. at 1754.24
         B.    Lopez category one.
         This category–“use of the channels of interstate commerce”–is
    clearly inapplicable to the present offenses, and the Government
    does not contend otherwise.
         C.    Lopez category two.
         The Government contends that these offenses fall within Lopez
    category two because, according to the Government, the victim
    stores were engaged in interstate commerce, relying on United
    States v. Robertson, 
    115 S. Ct. 1732
     (1995), and that therefore no
    “substantial” effect on interstate commerce had to be shown.
         For several reasons, we reject the Government’s contention
    that these are Lopez category two offenses.                To begin with, simply
    because a business is engaged to any extent in interstate commerce
    does not alone suffice to bring regulation of any and all conduct
    involving    it    within      category   two.      That   category   applies   to
    “instrumentalities of interstate commerce,” such as “an aircraft”
    or a railroad line, and to “persons or things in interstate
    commerce,” such as “thefts from interstate shipments.”                 Plainly, a
          Unlike the situation in Lopez, Congress in enacting §
    13981 specifically invoked its powers under section 8 of Article
    I of the Constitution, Morrison at 1748, and made numerous
    findings regarding the adverse impact of gender motivated
    violence on interstate commerce. Id. at 1752.
    local retail store is not analogous to any of those.25                      The
    Government’s argument would vastly expand Lopez’s category two,
    extending federal jurisdiction on a per se, categorical basis to a
    broad range of matters such as shoplifting of a candy bar from any
    business engaged in interstate commerce or children scuffling in
    any   such   business’s      parking   lot,   and   would    also    blur   the
    distinction between categories two and three.             Moreover, we note
    the Seventh      Circuit’s    observation,    rejecting     the   Government’s
    attempts to fit a Hobbs Act prosecution into Lopez category two,
    that “[t]he Hobbs Act, however, falls within Lopez category three,”
    at least where the conviction is sought to be sustained simply on
    the theory that the victim was engaged in interstate commerce.              See
    United States v. Peterson, 
    236 F.3d 848
    , 856 (7th Cir. 2001).26
          Nor do we agree that the Government’s argument is supported by
    Robertson. There the defendant was convicted of “various narcotics
    offenses” and of violating 18 U.S.C. § 1962(a) (RICO) “by investing
    the proceeds of those unlawful activities in the ‘acquisition of
    any   interest    in,   or   the   establishment    or   operation    of,   any
    enterprise which is engaged in, or the activities of which affect,
          We respectfully disagree with the apparently contrary
    conclusions of the divided panel in United States v. Harrington,
    108 F.3d 1460
    , 1466, 1469-70 (D.C. Cir. 1997), and the seemingly
    similar suggestion in United States v. Farmer, 
    73 F.3d 836
     at 843
    (8th Cir. 1966).
          So far as concerns application of the Hobbs Act to violent
    interference with shipments actually moving or about to move in
    interstate commerce (reflected in its “or the movement of any
    article or commodity in commerce” prong, comparable to the 1934
    Act’s “or any article or commodity moving or about to move in
    trade or commerce” language)–which was plainly at least the Hobbs
    Act’s primary purpose–Lopez category two would doubtless be the
    appropriate category. Obviously, that is not the case here.
    interstate or foreign commerce.’” Id. at 1732.          The Ninth Circuit,
    in a pre-Lopez decision, affirmed the narcotics convictions but
    reversed the RICO conviction, holding that the RICO enterprise–an
    Alaskan   gold   mine–was   not   shown   to   have    “had   more   than   an
    incidental effect on interstate commerce” and hence did not meet
    section 1962(a)’s “the activities of which affect, interstate . .
    . commerce” requirement (without addressing the “engaged in . . .
    interstate commerce” prong of section 1962(a)).           United States v.
    15 F.3d 862
    , 868 (9th Cir. 1994).          The Ninth Circuit did
    not even mention, let alone discuss, the Commerce Clause or the
    limits of Congress’s power thereunder.         The Supreme Court, shortly
    after Lopez, reversed the Ninth Circuit’s reversal of the RICO
    count, holding there was sufficient evidence that the gold mine was
    “engaged in . . . interstate . . . commerce” for purposes of
    section 1962(a).    Robertson, 115 S.Ct. at 1733.        It stated in this
         “. . . Robertson, who resided in Arizona, made a cash
         payment of $125,000 for placer gold mining claims near
         Fairbanks. He paid approximately $100,000 (in cash) for
         mining equipment and supplies, some of which were
         purchased in Los Angeles and transported to Alaska for
         use in the mine.     Robertson also hired and paid the
         expenses for seven out-of-state employees to travel to
         Alaska to work in the mine. . . . He again hired a number
         of employees from outside Alaska to work in the mine.
         . . .
         Furthermore, Robertson, the mine’s sole proprietor, took
         $30,000 worth of gold, or 15% of the mine’s total output,
         with him out of the State.
         Whether or not these activities met (and whether or not,
         to bring the gold mine within the ‘affecting commerce’
         provision of RICO, they would have to meet) the
         requirement   of  substantially   affecting   interstate
         commerce, they assuredly brought the gold mine within §
         1962(a)’s alternative criterion of ‘any enterprise . . .
         engaged in . . . interstate or foreign commerce.’” Id.
    Robertson is a statutory construction case and does not purport to
    make any constitutional holding or to address (or recognize as
    being potentially before it) any constitutional issue, and it does
    not mention Lopez or discuss its three categories of Commerce
    Clause power.27
         Finally, and in any event, we reject the underlying premise of
    the Government’s argument in this connection, namely that the
    victim stores here were “engaged in” interstate commerce as the
    Robertson Court understood and intended that phrase.   Robertson’s
    principal illustrations of what is, and what is not, “engaged in
    [interstate] commerce” are as follows:
         “the Government proved that some . . . [equipment and
         supplies] were purchased in California and transported to
         Alaska for use in the mine’s operations.      Cf. United
         States v. American Building Maintenance Industries, 
    422 U.S. 271
    , 285, 
    95 S. Ct. 2150
    , 2159, 
    45 L. Ed. 2d 177
         (allegation that company had made local purchases of
         equipment and supplies that were merely manufactured out
         of state was insufficient to show that company was
         “engaged in commerce” within the meaning of § 7 of the
         Clayton Act).
         . . .
         As we said in American Building Maintenance, a
         corporation is generally ‘engaged “in commerce”’ when it
         is   itself  ‘directly   engaged   in  the   production,
         distribution, or acquisition of goods and services in
         interstate commerce.’ Id., at 283, 95 S.Ct., at 2158.”
           Moreover, it is not clearly apparent that Congress’s power
    to criminalize an offender’s use of the proceeds of his federal
    narcotics offenses to invest in, establish or operate an
    enterprise is necessarily dependent on the enterprise being
    otherwise subject to Congress’ power under the Commerce Clause.
    See, e.g., United States v. Owens, 
    996 F.2d 59
    , 61 (5th Cir.
    In American Building Maintenance the Court held summary judgment
    was properly granted that the Benton janitorial service companies,
    located in California, were not “engaged in [interstate] commerce,”
    for purposes of section 7 of the Clayton Act, stating:
         “[T]he Benton companies performed a substantial portion
         [80% to 90%] of their janitorial services for enterprises
         which were themselves clearly engaged in selling products
         in interstate and international markets and in providing
         interstate communication facilities.         But simply
         supplying localized services [in California] to a
         corporation engaged in interstate commerce does not
         satisfy the “in commerce” requirement of § 7.
         To be engaged “in commerce” within the meaning of § 7, a
         corporation must itself be directly engaged in the
         production, distribution, or acquisition of goods or
         services in interstate commerce.
         . . .
         Similarly, although the Benton companies used janitorial
         equipment and supplies manufactured in large part outside
         of California, they did not purchase them directly from
         suppliers located in other States. [citation] Rather,
         those products were purchased in intrastate transactions
         from local distributors. . . . By the time the Benton
         companies purchased their janitorial supplies, the flow
         of commerce had ceased. See Schechter Corp. v. United
         States, 295 U.S., at 542-543, 55 S.Ct. at 848.” Id.,
         2158-59 (emphasis added; footnote omitted).
    Here there is no evidence that any of these local retail stores
    made any sales other than at the store premises in Fort Worth or
    any sales to any person or entity engaged in interstate commerce,
    or had any operations, facilities or employees outside of Fort
    Worth; nor is there any evidence that any of them acquired any of
    their merchandise inventory other than from in-state wholesalers.28
          It is true that Quickway Shopping (one of which stores was
    robbed of $50) sold some money orders which it purchased from a
    company in Minnesota. But given that there is no evidence that
    amount of these was other than insignificant–either absolutely or
    as fraction of the store’s total sales–we hold that this does not
    If the Benton companies were not “engaged in” interstate commerce,
    it necessarily follows, a fortiori, that these local retailers were
           D.   Lopez category three.
           We accordingly conclude that the issue of whether the Hobbs
    Act is properly applied to these robberies turns on whether such
    application meets the test of Lopez category three, as to which
    “the proper test requires an analysis of whether the regulated
    activity ‘substantially affects’ interstate commerce.”                Id. at
           The evidence does not reflect any particular, concrete effect
    on interstate commerce that in fact actually resulted from any of
    the four robberies.     But the evidence does support the conclusions
    that the victim stores each regularly used their funds to, among
    other things, purchase from local wholesalers inventory which
    included (but was not shown to be limited to) items manufactured
    out-of-state, and that the robberies reduced, by the amounts taken
    ($50, $100, $145, $1,500-2,000), the funds the stores would, but
    for the robbery, otherwise thereafter have had available for use in
    (or withdrawal from) their respective businesses, including (but
    not limited to) use for inventory purchasing.             The evidence also
    shows that     any   reduction   in   a    retailer’s   purchases   from   its
    wholesaler would reduce the funds the wholesaler would otherwise
    constitute Quickway Shopping as being engaged in interstate
    commerce, certainly not for purposes of bringing the robbery of
    it within Lopez category two. Cf. American Building Maintenance
    at 2153 and notes 3 and 4 (referring to “negligible” use of
    interstate facilities and “insignificant” interstate purchases).
    thereafter have had available for use in (or withdrawal from) its
    business, including (but not limited to) use for purchase of out-
    of-state merchandise. Cf. United States v. Atcheson, 
    94 F.3d 1237
    1243   (9th   Cir.     1996)   (“To    establish     a    de   minimis     effect      on
    interstate     commerce,       the    Government     need      not    show      that    a
    defendant’s acts actually affected interstate commerce . . .
    Rather, the jurisdictional requirement is satisfied ‘by proof of a
    probable or potential impact’”).              Assuming that all this suffices
    to show that each individual robbery did probably or potentially
    have some minimal, attenuated and indirect affect on interstate
    commerce, it is clear that none individually had what could fairly
    be     described as a “substantial” affect (actual, probable or
           The Government in this connection relies on the “aggregation”
    principle     under    which    in    determining        whether     the   affect      on
    interstate commerce is “substantial” the focus is not upon any one
    individual instance of the activity covered by the regulation but
    is rather upon whether the aggregate of all covered instances as a
    whole substantially affects interstate commerce.                     The validity of
    that general principle has long been clearly established, and is
    recognized in both Lopez and Morrison.              At the same time, however,
    each   of   those     decisions      holds   that   the    principle       is   not    of
    universal or unlimited application, and refused to apply it to
    sustain the statutes there under consideration.                 Thus, in Morrison
    the Court recognized that the aggregate of instances of gender-
    motive violence within the scope of section 13981 did ultimately
    have a large effect on interstate commerce, id. at 1752, but
    nevertheless held that the aggregation principle could not be
    applied, stating:
         “We accordingly reject the argument that Congress may
         regulate non-economic, violent criminal conduct based
         solely on that conduct’s aggregate effect on interstate
         commerce.    The Constitution requires a distinction
         between what is truly national and what is truly local.
         . . . The regulation and punishment of intrastate
         violence that is not directed at the instrumentalities,
         channels, or goods involved in interstate commerce has
         always been the province of the States.” Id. at 1754.
         The central question in this case, then, is whether this Hobbs
    Act prosecution can be sustained under the aggregation theory.           We
    now turn to that question.
         E.   Hobbs Act jurisdictional element.
         Because the Hobbs Act has an interstate commerce related
    jurisdictional element and the statutes at issue in Lopez and
    Morrison contained no comparable provision, as the Supreme Court’s
    opinions in those cases emphasized, some of our sister circuits
    have relied on this distinction (among other considerations) in
    holding that Lopez and Morrison are either largely inapplicable to
    Hobbs Act cases, or do not require that a substantial effect on
    interstate commerce be shown in Hobbs Act prosecutions falling
    under Lopez category three.29     We respectfully disagree.       Such an
    approach would   in   effect   either   create   a   fourth   category   of
    commerce clause power, contrary to the plainly comprehensive three
    category approach taken in Lopez and Morrison, or would do away
    with the “substantially affect” requirement which those opinions so
          See United States v. Gray, 
    260 F.3d 1267
    , 1274 (11th Cir.
    2001); United States v. Malone, 
    222 F.3d 1286
    , 1295 (10th Cir.
    2000). See also United States v. Harrington, 
    108 F.3d 1460
    , 1465
    (D.C. Cir. 1997).
    clearly state is constitutionally mandated in category three cases.
    Congress lacks the power to provide for a lesser relation to
    interstate commerce in that category of case simply by including a
    jurisdictional provision.   Otherwise the principles enunciated in
    Lopez and Morrison would be essentially meaningless. We agree with
    the Seventh Circuit’s observations in this respect in United States
    v. Wilson, 
    73 F.3d 675
    , 685 (7th Cir. 1995).30
         This is not to say that the Hobbs Act jurisdictional element
    serves no function.   It allows a determination in each case, based
    on its particular facts and characteristics, whether in that case
    application of the statute is consistent with Congress’s Commerce
    Clause power.   Because of that jurisdictional element the statute
    is not properly subject to being facially invalidated, which was
    essentially the result in Lopez and Morrison where the statutes
    involved lacked any jurisdictional element.
          The Wilson court stated: “In discussing the lack of a
    jurisdictional element in Lopez, the court simply did not state
    or imply that all criminal statutes must have such an element, or
    that all statutes with such an element would be constitutional,
    or that any statute without such an element is per se
    unconstitutional.” Id. (emphasis added). We quoted that
    sentence from Wilson with approval in United States v. Bird, 
    124 F.3d 667
    , 675 (5th Cir. 1997).
         Moreover, several decisions have indicated that Lopez and/or
    Morrison preclude most Hobbs Act prosecutions for robberies of
    individuals. See United States v. Lynch, 
    282 F.3d 1049
    , 1052-55
    (9th Cir. 2002); United States v. Wang, 
    222 F.3d 243
    , 239-40 (6th
    Cir. 2000); United States v. Collins, 
    40 F.3d 95
    , 100-101 (5th
    Cir. 1994) (applying this Court’s decision in Lopez, 
    2 F.3d 1342
    (5th Cir. 1993), later affirmed by the Supreme Court). See also
    United States v. Quigley, 
    53 F.3d 908
    , 910 (8th Cir. 1995)
    (relying on Collins). Obviously, these decisions proceed on the
    assumption that Lopez and/or Morrison speak to Hobbs Act
    prosecutions in Lopez category three cases notwithstanding the
    presence of a jurisdictional element in the Hobbs Act and the
    absence of such an element in the statutes involved in Lopez and
         F.   Regulation of commercial or economic activity.
         Some of our sister circuits have held that the refusal of
    Lopez and Morrison to apply the aggregation principle to sustain
    the statutes there under consideration is wholly inapplicable to
    the Hobbs Act because those statutes proscribed offenses which were
    not commercial or economic while robbery (or extortion, but we here
    deal only with robbery), which the Hobbs Act proscribes, is a
    commercial or economic activity as it always involves taking
    “personal property” from another person. § 1951(b)(1).     See United
    States v. Gray, 
    260 F.3d 1267
    , 1274 (11th Cir. 2001) (“Unlike the
    statute at issue in Morrison, the Hobbs Act plainly and undeniably
    regulates economic activity”); United States v. Malone, 
    222 F.3d 1286
    , 1295 (10th Cir. 2000) (“Unlike the statutes at issue in
    Morrison and Lopez, the Hobbs Act regulates economic activity”).
    But see United States v. Peterson, 
    236 F.3d 848
    , 852 (7th Cir.
    2001) (“. . . the Hobbs Act does not suggest that robbery is an
    economic activity”).
         We respectfully take a somewhat different view of the matter.
         The approach of these cases seems to be that whenever the
    regulated activity is “economic,” then, for purposes of Lopez
    category three cases, there are never any limits whatever to use of
    the aggregation theory and it may always be employed to satisfy
    (and as practical matter will always satisfy) the “substantially”
    affects requirement of Lopez category three.31    While this would
          Where only Lopez categories one or two are involved, a
    showing of “substantially affects” is not required, and so
    whether aggregation is available is generally irrelevant.
    seem, at least as a practical matter, to limit Lopez category three
    to cases where the regulated activity was non-economic and to
    obliterate any distinction in “economic” cases between the Lopez
    categories, we need not and do not reach that issue.
           Assuming, arguendo, that there is a class of category three
    cases as to which there are no restraints whatever on aggregation,
    we conclude that such a class would exclude instances where “the
    regulated activity” is not properly described as “commercial” or
    “economic” in the same general sense as “commercial.”32
           Lopez   and   Morrison   each   refer   to   both   “commercial”   and
    “economic” activities and appear to use the terms synonymously.
    Thus Lopez states that section 922(q) does not “regulate[] a
    commercial activity” id. at 1626 (quoted in Morrison id. 1750), and
           “Section 922(q) is not an essential part of a larger
           regulation of economic activity, in which the regulatory
           scheme could be undercut unless the intrastate activity
           were regulated. It cannot, therefore, be sustained under
           our cases upholding regulations of activities that arise
           out of or are connected with a commercial transaction,
           which viewed in the aggregate, substantially affects
           interstate commerce,” id. at 1631 (emphasis added),
    and that
          If “the regulated activity” is not “commercial” (or the
    regulation does not govern the conduct of a wholly or partially
    commercial enterprise or endeavor), that means merely that, in
    Lopez category three cases where there must be a “substantially
    affects” showing, then, whether or not aggregation is available
    depends on the considerations elaborated on in G below and in
    Judge Higginbotham’s Hickman dissent. We need not and do not
    address whether such considerations (or similar ones) govern or
    limit the availability of aggregation for such purpose where the
    regulated intrastate activity is “commercial” (or the regulation
    does govern the conduct of a wholly or partially commercial
    enterprise or endeavor).
           “We do not doubt that Congress has authority under the
           Commerce   Clause   to   regulate   numerous   commercial
           activities that substantially affect interstate commerce
           and also affect the educational process. . . .
           Admittedly, a determination whether an intrastate
           activity is commercial or noncommercial may in some cases
           result in legal uncertainty.”     Id. at 1633 (emphasis
    The last sentence above quoted is likewise quoted in Morrison. Id.
    at 1750.     Justice Kennedy, in his concurring opinion in Lopez
    (joined in     by   Justice   O’Connor    and    joining    in     Chief   Justice
    Rehnquist’s opinion for the Court) states:
           “Were the Federal Government to take over the regulation
           of entire areas of traditional state concern, areas
           having nothing to do with the regulation of commercial
           activities, the boundaries between the spheres of federal
           and   state   authority   would   blur    and   political
           responsibility would become illusory.”       Id. at 1638
           (emphasis added).
    The above passage is likewise quoted with approval in Morrison.
    Id. at 1750.
           And, since what we are concerned with is the power of Congress
    under the Commerce Clause–the power “[t]o regulate Commerce with
    foreign Nations, and among the several States, and with the Indian
    Tribes”–“commercial” rather than simply any broadly understood
    concept of “economic” seems to be the appropriate concept.
           Robbery is the “activity” regulated by the Hobbs Act, and we
    conclude that for these purposes robbery cannot be considered a
    commercial activity.      Robbery does have an economic effect.               But
    so, too, do not only all thefts of any kind from any victim but
    also, for example, virtually all criminal homicides. Moreover, the
    here   relevant     portion   of   the   Hobbs    Act,     apart    from   simply
    specifying that the accused have committed a “robbery” which “in
    any way or degree . . . affects commerce” (although not requiring
    any intention to have or foreknowledge of such an effect), says
    nothing whatever about the identity, status or activity (whether as
    being engaged in any sort of commercial activity or otherwise) of
    either the victim or the robber, and does not purport to in any way
    regulate the conduct of any commercial activity.         What is relevant
    in this connection under Lopez and Morrison is not the effects of
    the conduct which the statute proscribes but whether the statute
    may fairly be said to regulate commercial activity.              The here
    relevant portion of the Hobbs Act cannot.
         We recognize that some decisions have taken the view that “the
    Hobbs Act regulates the interference with economic activity by
    robbery,” Peterson at 852, and for that reason alone an aggregation
    analysis is always per se appropriate and all that needs be shown
    is a depletion of assets.             Id. (“what is aggregated is the
    depletion of the interstate entity’s assets by robbery”). See also
    Gray at 1274 (“Economic activity, or more precisely the infliction
    of economic harm, is at the heart of the Hobbs Act’s prohibition on
    robbery”).     However, as noted, the here relevant portion of the
    Hobbs Act says nothing about the victim being an “interstate
    entity.”33    And, we are aware of no Commerce Clause case in which
    the Supreme Court has applied the aggregation principle to a class
    of activities where contours of the class are not reasonably
    inferable     from   the   language    of   the   challenged   statute   or
    regulation.    Moreover, the approach of allowing aggregation simply
          Nor may the victims here be properly so characterized.
    See part IIC, supra.
    because of “the infliction of economic harm” (or the “depletion of
    . . . assets”) equally supports making a federal offense of any
    crime (say any criminal homicide or assault producing serious
    bodily injury) so long as it causes economic harm or depletes
    economic   resources   and   hence    in    some   way    or   degree    affects
    interstate commerce–in the same sense as does a fifty dollar
    robbery or a fifty cent shoplifting from a victim (whether an
    individual or a local retailer) who purchases items made in another
    state–and so long as the aggregate effect of all such crimes on
    interstate commerce is substantial.            Yet, Morrison rejects the
    notion that Congress may regulate a crime simply because “the
    nationwide, aggregated impact of that crime has substantial effects
    on employment, production, transit, or consumption.”                 Id. at 1752-
    53.    Lopez and Morrison reflect that such a limitation on the
    aggregation principle is necessary because “[t]he Constitution
    requires a distinction between what is truly national and what is
    truly local,” and “[t]he regulation and punishment of intrastate
    violence that is not directed at the instrumentalities, channels,
    or goods involved in interstate commerce has always been the
    province of the States.”          Id. at 1754.     Certainly, none of the
    instant    robberies   can   be    characterized     as   “directed      at   the
    instrumentalities,     channels,     or    goods   involved     in    interstate
    commerce.”34   Further, the several decisions refusing to find the
          And, the here relevant portion of the Hobbs Act,
    denouncing any “robbery” which “in any way or degree . . .
    affects commerce” is in no way limited to robberies “directed at
    the instrumentalities, channels, or goods involved in interstate
    Hobbs     Act   applicable   to   most    robberies   of   individuals   under
    theories of deletion of assets and aggregation of the effect on
    interstate commerce of all such robberies likewise support our view
    in this respect.35       It has been said that this distinction is
    justified because “in general . . . businesses purchase on a larger
    scale than individuals.”          United States v. Boulahanis, 
    677 F.2d 586
    , 590 (7th Cir. 1982).           However, this justification is not
    persuasive because the here relevant portion of the Hobbs Act makes
    no distinction between the robberies it proscribes on the basis of
    whether the victim is a business (or is engaged in a commercial
    activity), and because virtually every consumer regularly expends
    considerable funds on the purchase of items originating out-of-
    state and there are many more consumers than businesses.             Indeed,
    consumer spending is generally estimated to amount to two-thirds of
    the national economy.        See also United States v. Thomas, 
    159 F.3d 296
    , 298 (7th Cir. 1998) (“since the aggregate effect of such
          See United States v. Lynch, 
    282 F.3d 1049
    , 1054 (9th Cir.
    2002) (“. . . robbery does have an economic component; however,
    that economic component must rise above the simple, though
    forced, economic transaction between two individuals. Otherwise,
    almost every violent property crime would be transformed into a
    federal offense, contrary to the teachings of Morrison”); United
    States v. Wang, 
    222 F.3d 234
    , 239-40 (6th Cir. 2000) (restaurant
    owner robber of $4,200 by former employee; of $4,200 taken $1,200
    had been withdrawn that day from restaurant with intent to
    deposit it in the restaurant bank account the next day;
    restaurant purchased meat from out-of-state suppliers; not
    covered by Hobbs Act, citing Morrison); United States v. Quigley,
    53 F.3d 908
    , 910 (8th Cir. 1995); United States v. Collins, 
    40 F.3d 95
    , 100-101 (5th Cir. 1994) (robbery of Mercedes-Benz
    automobile, cell phone, cash, jewelry and clothes); United States
    v. Buffey, 
    899 F.2d 1402
     (4th Cir. 1990) ($20,000 extortion);
    United States v. Matson, 
    671 F.2d 1020
     (7th Cir. 1982) ($3,000
    extortion); United States v. Merolla, 
    523 F.2d 51
     (2d Cir. 1975)
    (extortion of contractor by owner).
    robberies [of individuals] on commerce is non-trivial, those cases
    are in tension with the ones . . . which insist on aggregation”).
    Moreover, as previously noted, we are aware of no Supreme Court
    Commerce Clause decision applying the aggregation principle to a
    class of activities the contours of which are not reasonably
    inferable     from   the   language    of     the   challenged   statute   or
    regulation.     Thus, the aggregation principle if applied to Hobbs
    Act prosecutions, would apply all robberies (of any personal
    property, from any victim, by any robber) which “in any way or
    degree . . . affect[s] commerce.”
         We turn now to the appropriate standards to determine whether
    in such a case the applicable Lopez category three “substantially
    affects” requirement can be met by aggregating the effects of all
    such robberies.
         G.   Aggregation and the Hobbs Act
         As     previously     observed,    the    aggregation    principle    has
    relevance only in Lopez category three cases, cases that are
    concerned only with regulation of intrastate conduct.               As to such
    regulation,    Lopez’s     explicit    requirement     that   the    regulated
    intrastate conduct not merely affect interstate commerce but that
    it do so “substantially” is obviously designed to insure that
    congressional power under the Commerce Clause is not wholly without
    meaningful limits and does not obliterate the “distinction between
    what is truly national and what is truly local,” id. at 1634, so as
    to transform to a unitary system of government the constitutionally
    established federal system under which, among other things, there
    is “no better example of the police power, which the Founders
    denied the National Government and reposed in the States, than the
    suppression of violent crime and vindication of its victims.”
    Morrison at 1754.         Yet if there are essentially no limits on use of
    the   aggregation         principle    to      satisfy    the     “substantially”
    requirement, then that requirement becomes virtually meaningless
    and wholly incapable of performing the function it is designed to
    serve, for the greater the breadth and generality of the regulatory
    net   which       Congress   casts    over     intrastate      conduct    the    more
    “substantial” will be the aggregated affect on interstate commerce
    of the total of all the intrastate conduct so regulated. Moreover,
    if the aggregation principle is applicable “the courts have no
    power ‘to excise, as trivial, individual instances’ of the class”
    being aggregated.          Perez v. United States, 
    91 S. Ct. 1357
    , 1361
    (1971) (quoting Maryland v. Wirtz, 
    88 S. Ct. 2017
    , 2022 (1968)).
          Although the Supreme Court has on several occasions sustained
    federal statutes on the aggregation theory, it has never applied or
    even referred to it in a Hobbs Act case (nor is anything in the
    Hobbs Act legislative history supportive of such an approach). Nor
    since Lopez and Morrison has the Court made any general analysis or
    explanation of the contours of the doctrine.
          In United States v. Robinson, 
    119 F.3d 1205
     (5th Cir. 1997),
    we rejected an as-applied challenge to a Hobbs Act conviction which
    urged that under Lopez the evidence was insufficient because it
    showed     only    that   the   charged    robberies     had    some,    but    not   a
    substantial, effect on interstate commerce.36                   We rejected that
          Robinson involved one conspiracy and three substantive
    counts involving retail store robberies. The victim “stores
    contention, relying on the “aggregation principle” as reflected by
    cases such as Wickard v. Filburn, 
    63 S. Ct. 82
     (1942), Katzenbach v.
    85 S. Ct. 377
     (1964) and Heart of Atlanta Motel v. United
    85 S. Ct. 348
     (1964), held that “Lopez did not undermine
          this principle” and relied in that connection on the Tenth
    Circuit’s decision in United States v. Bolton, 
    68 F.3d 396
    Robinson, 1214-15.
         Subsequently, in United States v. Hickman, 
    151 F.3d 449
    Cir. 1998) (panel opinion), 
    179 F.3d 230
     (5th Cir. 1999) (en banc),
    we again addressed the requisite interstate commerce connection
    respecting Hobbs Act convictions for several robberies of retail
    establishments.         The    Hickman    panel    affirmed   the   convictions,
    considering   itself     bound    by     Robinson,   but   expressed   “serious
    questions”    as   to    the    propriety     of   applying   the   aggregation
    principle in that setting.37           The en banc court noted that “[b]y
    provided check-cashing services . . . the stores cashed out-of-
    state checks, payroll checks, and government benefit checks . . .
    several of the stores sold products that had been shipped to
    Texas from other states. The victims . . . suffered substantial
    losses as a result of the robberies: one store was forced to
    close permanently for lack of capital, and the others were unable
    to cash checks for a finite period of time.” Id. at 1208.
    “[T]hese robberies caused business losses of approximately $5,000
    each” to two different victims and “$60,000" to a third. Id. at
          The panel opinion states:
         “A review of Supreme Court authority raises serious
         questions regarding whether aggregation principles can
         be used as the commerce clause jurisdictional hook
         under the Hobbs Act when the underlying crimes arise
         from a purely local crime spree. . . . These local
         robberies are not the sort of economic activity that
         can legitimately be viewed in the aggregate for
         traditional economic impact analysis purposes. The
         conceptual difference between the consumption of home-
         grown wheat that might otherwise have been sold on the
    means of an equally divided en banc court, we affirm the counts of
    conviction,” but no opinion for affirmance was issued.          Hickman,
    179 F.3d 230
    .     Half the judges comprising the en banc court joined
    in a dissenting opinion by Judge Higginbotham urging reversal on
    the basis that, particularly in light of Lopez, the aggregation
    principle   was    not   properly   applicable   to   those   Hobbs   Act
    prosecutions.     Id.
         Given the intervening decision in Morrison we revisit that
    issue and now express our essential agreement with the conclusions
    and underlying reasoning of Judge Higginbotham’s Hickman opinion.38
    As stated in that opinion:
         “We would hold that substantial effects upon interstate
         commerce may not be achieved by aggregating diverse,
         separate individual instances of intrastate activity
         where there is no rational basis for finding sufficient
         connections among them. Of course, Congress may protect,
         enhance, or restrict some particular interstate economic
         market, such as those in wheat, credit, minority travel,
         open market, see Wickard v. Filburn, 
    317 U.S. 111
    63 S. Ct. 82
    87 L. Ed. 122
     (1942), or denying service in a
         restaurant to a particular race of interstate
         travelers, see Katzenbach v. McClung, 
    379 U.S. 294
    85 S. Ct. 377
    13 L. Ed. 2d 290
     (1964), and a string of local
         robberies is apparent. We, however, are bound by
         circuit law. See United States v. Robinson, 119 F.3d
         at 1208. Robinson constitutes clear circuit precedent
         for the application of aggregation to this local non-
         economic activity, thereby setting the commerce clause
         jurisdictional hook.” Id. at 456.
          We recognize decisions of our sister circuits that
    continue after Morrison to apply an aggregation analysis to Hobbs
    Act prosecutions. See, e.g., United States v. Elias, 
    285 F.3d 183
    , 188-89 (2d Cir. 2002); United States v. Gray, 
    260 F.3d 1267
    1273-74 (11th Cir. 2001); United States v. Peterson, 
    236 F.3d 848
    , 852 (7th Cir. 2001); United States v. Malone, 
    222 F.3d 1286
    1294-95 (10th Cir. 2000). But see United States v. Lynch, 
    282 F.3d 1049
    , 1054 (9th Cir. 2002); United States v. Wang, 
    222 F.3d 234
    , 240 (6th Cir. 2000). For the reasons stated herein, we
    respectfully view the matter differently.
          abortion service, illegal drugs, and the like, and
          Congress may regulate intrastate activity as part of a
          broader scheme. The Hobbs Act is not a regulation of any
          relevant interstate economic market, nor are there other
          rational connections among nationwide robberies that
          would entitle Congress to make federal crimes of them
                The Hobbs Act does not target any class of product,
          process, or market, or indeed even commercial victims.
          It facially applies to any robbery, or its attempt, of
          any person or entity. . . . The Hobbs Act offers no
          ‘regulatory scheme’ which ‘could be undercut’ if
          individual robberies were not aggregated. . . . Thus,
          putting aside robberies as part of an effort to regulate
          particular interstate markets such as guns, drugs, or
          organized crime syndicates, a local robbery spree can be
          within Congress’s power only if it by itself has a
          substantial effect.” Id. at 231.
          . . .
          “Where Congress has sought to regulate–protect, enhance,
          or restrict–some particular market such as wheat, credit,
          minority travel, or abortion service, it has pointed the
          way to a rational aggregation test. It has identified
          those things that affect that market, things which if not
          all subject to the regulation would erode the effort.
          Intrastate production and sales can be aggregated,
          because the prices of goods and services are determined
          in interstate markets.     If, for example, the federal
          government enacts a price control to ensure sufficient
          income for producers, it will be thwarted if consumers
          switch to buying goods in intrastate commerce or produce
          the goods themselves. Because the instances of economic
          activity are intimately connected and in the aggregate
          substantially affect commerce, Congress can regulate such
          activity.” Id. at 233.
          We also observe that not only does the Hobbs Act “not target
    any   class   of   product,   process    or   market   or   even   commercial
    victims,” but it has also been held to apply to robbery (or
    extortion) which adversely affects illegal commerce39 as well as to
          See, e.g., United States v. Peterson, 
    236 F.3d 848
    , 854
    (7th Cir. 2001) (“the Hobbs Act does not require that the
    commerce affected be legal commerce”); United States v. Jones, 
    30 F.3d 276
    , 286 (2d cir. 1994); United States v. Ambrose, 
    740 F.2d 505
    , 512 (7th Cir. 1984) (Hobbs Act properly “read to punish
    extortion that promotes illegal commerce as well as extortion
    that retards legal commerce”). See also, e.g., United States v.
    227 F.3d 792
    , 798 (7th Cir. 2000) (“robbery of cocaine
    that which beneficially affects commerce.40
           The analysis in the Hickman en banc dissent fully comports
    with the following crucial passage in Lopez explaining the Court’s
    refusal to sustain 18 U.S.C. § 922(q) under an aggregation theory,
           “Section 922(q) is not an essential part of a larger
           regulation of economic activity, in which the regulatory
           scheme could be undercut unless the intrastate activity
           were regulated. It cannot, therefore, be sustained under
           our cases upholding regulations of activities that arise
           out of or are connected with a commercial transaction,
           which viewed in the aggregate, substantially affects
           interstate commerce.” Id. at 1631 (emphasis added).
           Where the Supreme Court has applied aggregation to uphold
    federal regulation of intrastate conduct against constitutional
    challenge under the Commerce Clause, there has always been a
    rational basis to find sufficient interrelationship or commonality
    of effect on interstate commerce among the discrete intrastate
    instances regulated and between them and a scheme of regulation
    (protection,    enhancement   or   restriction)   of   some   particular
    interstate market or activity such that the regulation of those
    intrastate activities can rationally be viewed as necessary to the
    effectiveness of or a meaningfully supporting part of the scheme of
    dealers generally has an effect on commerce” for purposes of
    Hobbs Act).
          See, e.g., United States v. Diaz, 
    248 F.3d 1065
    , 1084
    (11th Cir. 2001) (under Hobbs Act “the effect on interstate
    commerce is not limited to only adverse effects”); United States
    v. Kaplan, 
    171 F.3d 1351
    , 1357 (11th Cir. 1999) (Hobbs Act
    “intended to protect commerce from any and all forms of effect,
    whether they are . . . beneficial or adverse”); United States v.
    671 F.2d 1020
    , 1024 (7th Cir. 1982) (“Even a beneficial
    effect on interstate commerce, e.g., facilitating the flow of
    building materials across state lines, is within the prohibition
    of the statute”).
    regulation of that particular interstate activity or market.
            We now turn to the most frequently cited of these cases.
            Wickard v. Filburn, 
    63 S. Ct. 82
     (1942), involved a farmer who
    “owned and operated a small farm . . . maintaining a herd of dairy
    cattle, selling milk, raising poultry, and selling poultry and
    eggs” and raising “a small acreage of winter wheat.”             Id. at 84.
    He sold part of the wheat, fed part to his poultry and cattle, some
    of which were sold, used some for seeding and some in making flour
    for home consumption. In the year in question his wheat “available
    for marketing” quota under the Agricultural Adjustment Act of 1938
    as amended was 11.1 acres but he harvested and threshed 23 acres
    and was penalized 49 cents a bushel on the 239 bushels harvested
    and threshed from the 11.9 acres of excess acreage.         Id. at 83, 84,
    86.41    The Court assumed that this excess was consumed on the farm,
    but nevertheless, and despite the comparatively minimal quantity,
    sustained     the   penalty   as   against   Commerce   Clause   challenge,
    stating, inter alia,
                  “The effect of consumption of home-grown wheat on
            interstate commerce is due to the fact that it
            constitutes the most variable factor in the disappearance
            of the wheat crop.
            . . .
            One of the primary purposes of the Act in question was to
            increase the market price of wheat and to that end to
            limit the volume thereof that could affect the market.
            It can hardly be denied that a factor of such volume and
            variability as home-consumed wheat would have a
            substantial influence on price and market conditions.
            This may arise because being in marketable condition such
            wheat overhangs the market and if induced by rising
          Wheat not threshed was not considered “available for
    marketing” and could without penalty be cut and cured or fed as
    hay or reaped and fed with the head and straw together. Id. at
         prices tends to flow into the market and check price
         increases. But if we assume that it is never marketed,
         it supplies a need of the man who grew it which would
         otherwise be reflected by purchases in the open market.
         Home-grown wheat in this sense competes with wheat in
         commerce. . . . Congress may properly have considered
         that wheat consumed on the farm where grown if wholly
         outside the scheme of regulation would have a substantial
         effect in defeating and obstructing its purpose to
         stimulate trade therein at increased prices.
         . . .
         Control of total supply, upon which the whole statutory
         plan is based, depends upon control of individual
         supply.” Id. at 90-91 (emphasis added).
         We note that Lopez describes Wickard as “perhaps the most far
    reaching example of Commerce Clause authority over intrastate
    commerce.”   Lopez at 1630.   Clearly, however, the factors that
    brought Wickard under the aggregation principle are absent in the
    present character of prosecution. In Wickard market forces related
    the effect of the individual instances of regulated intrastate
    conduct to each other and to the scheme of regulation of the
    particular interstate market, namely sustaining the price at which
    wheat was sold in interstate commerce; moreover, the diverse
    instances of regulated intrastate conduct in Wickard each had a
    similar effect on the regulatory scheme, that is each had the same
    tendency to affect the interstate price of wheat in the same way.
         Likewise, in United States v. Wrightwood Dairy Co., 
    62 S. Ct. 523
     (1942), the Court upheld a regulation prescribing the minimum
    price to be paid producers for all milk marketed in the Chicago
    area, approximately forty percent of which came from out-of-state,
    rejecting the contention that the regulations could not under the
    Commerce Clause be applied to a local milk marketer all of whose
    business was entirely intrastate.    The Court explained:
         “. . . the marketing of intrastate milk which competes
         with that shipped interstate would tend seriously to
         break down price regulation of the latter.
         . . .
         We conclude that the national power to regulate the price
         of milk moving interstate into the Chicago, Illinois,
         marketing area, extends to such control over intrastate
         transactions there as is necessary and appropriate to
         make the regulation of the interstate commerce effective;
         and that it includes authority to make like regulations
         for the marketing of intrastate milk whose sale and
         competition with the interstate milk affects its price
         structure so as in turn to affect adversely the
         Congressional regulation.” Id. at 527.
         The decisions in Heart of Atlanta Motel v. United States, 
    85 S. Ct. 348
     (1964), and Katzenbach v. McClung, 
    85 S. Ct. 377
    sustained   under   the   Commerce   Clause   the   public   accommodation
    provisions of Title II of the Civil Rights Act of 1964 applicable
    to hotels and restaurants respectively.        In doing so the Court in
    each case pointed to the overwhelming evidence before Congress in
    its consideration of the legislation that racial discrimination by
    hotels and restaurants impeded minority interstate travel.              In
    Heart of Atlanta the Court noted that the Committee Reports and
    testimony before Congress reflected that:
         “[O]ur people have become increasingly mobile with
         millions of people of all races traveling from State to
         State; that Negroes in particular have been the subject
         of discrimination in transient accommodations, having to
         travel great distances to secure the same; that often
         they have been unable to obtain accommodations and have
         had to call upon friends to put them up overnight, . . .
         and that these conditions had become so acute as to
         require the listing of available lodging for Negroes in
         a special guidebook . . . that this uncertainty [of the
         Negro traveler finding lodging] stemming from racial
         discrimination had the effect of discouraging travel on
         the part of a substantial portion of the Negro community.
         This was the conclusion not only of the Under Secretary
         of Commerce but also of the Administrator of the Federal
         Aviation Agency who wrote the Chairman of the Senate
         Commerce Committee that it was his ‘belief that air
         commerce is adversely affected by the denial to a
         substantial segment of the traveling public of adequate
         and desegregated public accommodations.’ . . . We shall
         not burden this opinion with further details since the
         voluminous testimony presents overwhelming evidence that
         discrimination by hotels and motels impedes interstate
         travel.” Id. at 355 (emphasis added).42
    The Court went on to hold that interstate travel was interstate
    commerce under the Commerce Clause and that accordingly Congress’s
    commerce power embraced the power to remove the impediment to
    interstate travel posed by race based refusal to serve hotel
    customers.       Id.   at   355-360.    McClung   similarly   placed   great
    emphasis on the same consideration, id. at 381-82,43 and goes on to
    hold that the fact that one restaurant’s activities may have but a
    de minimus effect on interstate commerce was not significant,
    relying on Wickard.         McClung at 382.
          The portion of the above quotation up through the
    reference to “a special guidebook” is quoted in Perez v. United
    91 S. Ct. 1357
    , 1361 (1971), as explanatory of the
    decision in Heart of Atlanta.
              McClung states:
         “. . . there was an impressive array of testimony that
         discrimination in restaurants had a direct and highly
         restrictive effect upon interstate travel by Negroes.
         This resulted, it was said, because discriminatory
         practices prevent Negroes from buying prepared food
         served on the premises while on a trip, except in
         isolated and unkempt restaurants and under most
         unsatisfactory and often unpleasant conditions. This
         obviously discourages travel and obstructs interstate
         commerce for one can hardly travel without eating.
         Likewise, it was said, that discrimination deterred
         professional, as well as skilled, people from moving
         into areas where such practices occurred and thereby
         caused industry to be reluctant to establish there.”
         Id. at 381-82 (emphasis added).
         This passage from McClung is likewise quoted in full in
    Perez v. United States, 
    91 S. Ct. 1357
    , 1361 (1971), as
    explanatory of the decision in McClung.
          In Heart of Atlanta and McClung the discrete local activities
    regulated–the race based refusal of diverse hotels and restaurants
    to   serve   minority     customers–each       had    a    similar    effect     on   a
    particular interstate market or activity, namely impeding minority
    interstate travel, an obstruction to interstate commerce which the
    statute was designed to remove.
          Maryland v. Wirtz, 
    88 S. Ct. 2017
     (1968),44 rejected Commerce
    Clause     challenges     to   the   1961    amendments        to   the   Fair   Labor
    Standards Act adopting the “enterprise concept” extending coverage
    to include not only employees personally engaged in interstate
    commerce or in the production of goods for interstate commerce, but
    also all those employed by “an enterprise” engaged in interstate
    commerce or in the production of goods for interstate commerce.
    The Court noted that in the original act Congress had found that
    “substandard wages and excessive hours, when imposed on employees
    of a company shipping goods into other States, gave the exporting
    company an advantage over companies in the importing States” and
    that this     had   the    “undesirable      effect       of   driving    down   labor
    conditions in the importing States.”            Id. at 2020.45 The Court went
    on to state:
          Wirtz was overruled on other grounds in National League of
    Cities v. Usery, 
    96 S. Ct. 2465
     (1975), which was in turn
    overruled in Garcia v. San Antonio Metropolitan Transit
    105 S. Ct. 1005
          See also id. n.12 quoting congressional finding that
    substandard labor conditions “in industries engaged in commerce
    or in the production of goods for commerce . . . causes commerce
    and the channels and instrumentalities of commerce to be used to
    spread and perpetuate such labor conditions among the workers of
    the several States.”
         “When a company does an interstate business, its
         competition with companies elsewhere is affected by all
         its significant labor costs, not merely by the wages and
         hours of those employees who have physical contact with
         the goods in question.” Id. at 2021.
    Wirtz also noted that Congress had found that substandard labor
    conditions tended to labor disputes and strikes, “that when such
    strife disrupted businesses involved in interstate commerce, the
    flow of goods in commerce was itself affected,” id. at 2021, and
    that this applied equally to substandard labor conditions of all
    employees of an enterprise engaged in commerce, not merely those
    personally so engaged.        Id. at 2021-22.        Wirtz goes on to state
    that under   the    Commerce     Clause     courts   could    not    “excise,   as
    trivial, individual instances falling within a rationally defined
    class of activities,” citing Wickard.           Wirtz at 2022.
         The   intrastate      activities     regulated    in    Wirtz    (wages    of
    employees of an enterprise engaged in interstate commerce or in the
    production   of    goods   for   or   acquisition     of    goods    directly   in
    interstate commerce even where the employee personally was not so
    engaged)   were    by   market   forces      interrelated     and    related    to
    interstate commerce and to the regulated interstate market in
    wages.   Moreover, each of those intrastate activities had the same
    character of effect on the statutory scheme of regulation–as each
    proscribed substandard wage tended, by market forces, to lower
    wages generally and to foster industrial discord, contrary to and
    tending to undermine the statutory scheme for maintaining wages of
    employees of enterprises engaged in interstate commerce (or the
    production   of    goods   for   or   acquisition     of    goods    directly   in
    interstate commerce) and avoiding the disruption of interstate
    commerce incident to industrial strife resulting from substandard
         In Perez v. United States, 
    91 S. Ct. 1357
     (1971), the Court
    sustained Perez’s conviction for making an extortionate extension
    of credit contrary to the provisions of Title II of the Consumer
    Credit Protection Act of 1968, rejecting the contention that the
    statute was unconstitutional as not requiring proof that the
    particular transaction affected interstate commerce.      The Court
    observed that “[p]etitioner is one of the species commonly known as
    ‘loan sharks’ which Congress found are in large part under the
    control of ‘organized crime,’” citing congressional findings under
    Title II that “[o]rganized crime is interstate and international in
    character,” that “[a] substantial part of the income of organized
    crime is generated by extortionate credit transactions,” and that
    “[e]xtortionate   credit   transactions   are   carried   on   to   a
    considerable extent in interstate and foreign commerce and through
    the means and instrumentalities of such commerce” and “[e]ven where
    . . . purely intrastate in character . . . directly affect
    interstate and foreign commerce.”    Id. 1358 & n.1.   It also noted
    evidence before Congress that loan sharking was “the second largest
    source of revenue for organized crime” and is “controlled by
    organized criminal syndicates,” that “through loan sharking the
    organized underworld has obtained control of legitimate businesses,
    including securities brokerages and banks,” id. at 1362, and
    concluded by stating that “loan sharking in its national setting is
    one way organized interstate crime . . . syphons funds from
    numerous localities to finance its national operations.”       Id. at
         The Court likewise noted that “[t]here was ample evidence
    showing petitioner was a ‘loan shark’ who used the threat of
    violence as a method of collection,” id. at 1358, and “[i]n the
    setting of the present case there is a tie-in between local loan
    sharks and interstate crime.”   Id. at 1367.46
         In upholding the conviction the Perez Court relied on Wickard,
    Wrightwood Dairy Co., Heart of Atlanta, McClung, and Wirtz for the
    principle that the class of activities is the proper measure of the
    required relationship to interstate commerce and that courts would
    not “‘excise, as trivial, individual instances’ of the class.”
    Perez at 1360-61.
         Plainly, Perez dealt with a national market in credit, in
    which individual instances interact with each other by virtue of
    market forces.      More significantly, perhaps, it dealt with a
    statute attempting to regulate a particular interstate activity,
    that of “organized interstate crime,” which was financed by the
    both local and interstate loan sharking which it controlled.   Id.
          The Court also noted that Perez, among other collection
    threats, had said “my people” could put the victim in the
    hospital if he didn’t pay. Id. at 1359. The Second Circuit,
    whose affirmance of the conviction was ultimately affirmed by the
    Supreme Court, noted that the victim borrowed the money to open
    his own butcher shop, having been unable to procure a loan
    through normal banking channels, that the rate of interest
    charged by Perez “was obviously large enough to perpetuate the
    indebtedness forever,” that payments to Perez were made only by
    such methods as the victim’s delaying payments to his meat
    suppliers, and that as a result of all this, including Perez’s
    threats of violence and of “the attention of persons higher in
    the moneylending chain,” the victim “abandoned his business” and
    fled to Puerto Rico “leaving his debts, legitimate and
    illegitimate, behind.” United States v. Perez, 
    426 F.2d 1073
    1074 (2d Cir. 1970).
    at 1362-63.47   Moreover, Perez also relied on the principle that
    “‘when it is necessary in order to prevent an evil to make the law
    embrace more than the precise thing to be prevented it may do so’”
    (quoting Westfall v. United States, 
    47 S. Ct. 629
     (1927)), and then
    observed “in the present case there is a tie-in between local loan
    sharks and interstate crime.” Id. at 1362.    This would appear to
    invoke the rule that where the same kind of trafficking is carried
    on both interstate and intrastate Congress in preventing the
    interstate   trafficking   may   also   proscribe   the   intrastate
    trafficking where, as a practical matter (for reasons such as the
    fungibility of the particular commodities or the like), it is
    necessary to regulate the intrastate trafficking in order to
    effectively regulate the interstate trafficking. See, e.g., United
    States v. Lopez, 
    459 F.2d 949
    , 951-53 (5th Cir. 1972).48
          As the Second Circuit had observed in its affirmance of
    the conviction:
         “Loan-sharking activities can persuasively be
         characterized as generally in or affecting commerce
         precisely because such practices depend for their full
         effect on monopoly in metropolitan areas and national,
         or at least multi-state, organization. This provided a
         logical basis for congressional focus on loan-sharking
         rather than on a variety of other crimes which may be
         far more “local” in nature, e.g., robbery, burglary,
         larceny.” United States v. Perez, 
    426 F.2d 1073
    , 1079
         (2d Cir. 1970) (emphasis added).
          Much the same thought is expressed in the Second Circuit’s
    opinion affirming Perez’s conviction, viz:
         “What is known as legislative fact for a class of
         transactions–the effect on interstate commerce–is not
         necessarily easily provable in an individual instance
         of loan-sharking. Trying to trace the flow of funds
         from the immediate enforcer to the organization behind
         the loan might well be impossible in a particular case.
         Money, of course, is a classic fungible commodity;
         showing its movement interstate may be completely
         impossible where all that moves is cash recorded, if at
          The   present   case       does    not    involve      the   targeting       of   any
    particular interstate market or activity, and it is evident that
    the proscription of robberies which do not have the requisite
    effect on interstate commerce is in no sense necessary to effective
    regulation of those that do.
          We finally turn in this connection to Hodel v. Virginia
    Surface Mining & Reclamation Ass’n, 
    101 S. Ct. 2352
     (1981) (Hodel v.
    Virginia) and Hodel v. Indiana, 
    101 S. Ct. 2376
     (1981), in each of
    which the Court rejected Commerce Clause challenges by various coal
    producers    to   certain        provisions      of    the     Surface      Mining      and
    Reclamation    Control    Act      of    1977.        The    challenged     provisions
    constituted a complex regulatory scheme governing surface coal
    mining operations, requiring, among other things, land restoration,
    use of dams, spoil disposal               and the like.             The Court noted
    congressional     findings       that     surface     mining       adversely    affects
    interstate commerce by, inter alia, destroying the utility of land
    for   commercial,     industrial,         agricultural,        forestry      and     other
    purposes, causing erosion and contributing to flooding, polluting
    water and otherwise.             Hodel v. Virginia at 2361.                  The Court
    observed that     “coal     is    a     commodity     that    moves    in    interstate
         all, as an intangible on someone’s records or in
         someone’s memory.” United States v. Perez, 
    426 F.2d 1073
    , 1080-81 (2d Cir. 1970).
    Similarly, in United States v. Darby, 
    61 S. Ct. 451
    , 461 (1941),
    the Court stated:
         “Congress in the exercise of its power to require
         inspection and grading of tobacco shipped in interstate
         commerce may compel such inspection and grading of all
         tobacco sold at local auction rooms from which a
         substantial part but not all of the tobacco sold is
         shipped in interstate commerce.”
    commerce.    Here Congress rationally determined that regulation of
    surface coal mining is necessary to protect interstate commerce
    from adverse effects that may result from that activity” and that
    “the power conferred by the Commerce Clause [is] broad enough to
    permit congressional regulation of activities causing air or water
    pollution, or other environmental hazards that may have effects in
    more than one state.”    Id. at 2363.   Hodel v. Indiana focused on
    the prime farmland provisions of the Act, holding that “Congress
    had a rational basis for finding that surface coal mining on prime
    farmland affects interstate commerce in agricultural products.”
    Id. at 2384.     Both decisions note that federal standards were
    appropriate to insure that the forces of interstate competition in
    the coal industry would not undermine the maintenance of adequate
    standards.   Thus Hodel v. Virginia states:
         “the Act responds to a congressional finding that
         nationwide ‘surface mining and reclamation standards are
         essential in order to insure that competition in
         interstate commerce among sellers of coal produced in
         different States will not be used to undermine the
         ability of the several States to improve and maintain
         adequate standards on coal mining operations within their
         borders.’ . . . The prevention of this sort of
         destructive interstate competition is a traditional role
         for congressional action under the Commerce Clause.” Id.
         at 2363.
    Hodel v. Indiana expresses essentially the same thought.49        A
    footnote called for at the conclusion of the portion of the Hodel
    v. Indiana opinion dealing with the Commerce Clause states:
          The opinion there states: “. . . the Act reflects the
    congressional goal of protecting mine operators in States
    adhering to high performance and reclamation standards from
    disadvantageous competition with operators in States with less
    rigorous regulatory programs.” Id. at 2386.
           “Appellees contend that a number of the specific
           provisions challenged in this case cannot be shown to be
           related to the congressional goal of preventing adverse
           effects on interstate commerce.      This claim, even if
           correct, is beside the point.       A complex regulatory
           program such as established by the Act can survive a
           Commerce Clause challenge without a showing that every
           single facet of the program is independently and directly
           related to a valid congressional goal. It is enough that
           the challenged provisions are an integral part of the
           regulatory program and that the regulatory scheme when
           considered as a whole satisfies this test.” Id. at 2386
           n.17 (emphasis added) (citing Heart of Atlanta Motel and
           Thus the Hodel cases deal with a complex regulatory program of
    a particular industry engaged in interstate commerce designed to
    control a particular set of interstate effects of certain practices
    of that industry.        The regulated instances of intrastate conduct
    are    related   to   each   other   and    to   the   particular   scheme   of
    regulation of interstate commerce and effects thereon by the forces
    of the interstate market in the particular regulated industry. And
    the regulated instances of intrastate conduct also all either have
    the same character of effect on interstate commerce or are an
    integral or essential part of the overall complex regulatory scheme
    governing particular businesses engaged in interstate commerce,
    such that unless the covered intrastate activities were regulated
    the regulatory scheme would be undercut.
           It is also significant that in all the above discussed Supreme
    Court aggregation cases the intrastate conduct being regulated was
    conduct forming a part of the operation of a wholly or partially
    commercial enterprise (whether owned and operated by an individual
    or some legal entity).          The regulations governed aspects of how
    such    a   commercial    (or   partially    commercial)    enterprise   must
    operate, what it must or must not do in its operations.          See
    Morrison, 120 S.Ct. at 1750 n.4 (“[I]n every case where we have
    sustained federal regulation under Wickard’s aggregation principle,
    the regulated activity was of an apparent commercial character.”).
         We recognize that language in Russell v. United States, 
    105 S. Ct. 2455
     (1985), a prosecution under the federal arson statute,
    18 U.S.C. § 844(i), suggests that a broader–indeed virtually
    unlimited–application    of      the   aggregation   principle    is
    constitutionally permissible.50    But the only issue in Russell was
    one of statutory construction; no constitutional or Commerce Clause
    claim was presented to the Supreme Court.      Russell involved the
    owner of a two unit apartment building which was being rented to
    tenants at the time he attempted to destroy it by fire; he earned
    rental income from it and treated it as business property for tax
    purposes.   Id. at 2456.51    He unsuccessfully contended before the
          Russell states:
         “[T]he local rental of an apartment unit is merely an
         element of a much broader commercial market in rental
         properties. The congressional power to regulate the
         class of activities that constitute the rental market
         for real estate includes the power to regulate
         individual activity within that class.” Id. at 2457.
          See also the opinion of the Seventh Circuit affirming the
    conviction, United States v. Russell, 
    738 F.2d 825
    , 827 (1984),
         “The South Union Street apartment building was one of
         four pieces of property that Russell owned and rented
         to tenants. Russell’s income tax returns from 1976
         through 1982 demonstrated that Russell treated these
         properties as income property for which he claimed
         business deductions for depreciation and expenses.
         These properties also were covered by business fire
         insurance policies, in contrast to the defendant’s own
         residence which he covered by a homeowner’s policy
         limited to owner-occupied premises. At the time of the
         incident in question, Russell lived in neither unit of
    Supreme Court, as he had in the District Court, 
    563 F. Supp. 1058
    (N.D. Ill. 1983), and in the Court of Appeals, 
    738 F.2d 825
    Cir. 1984), “that the building was not commercial or business
    property, and therefore was not capable of being the subject of an
    offense under section 844(i).”   Id. at 2456.   In the Supreme Court
    he presented only an issue of statutory construction and expressly
    disclaimed any constitutional argument, his “Brief For Petitioner”
    there stating:
         “Mennuti [United States v. Mennuti, 
    639 F.2d 107
    , 2d Cir.
         1981, the case on which he principally relied] does not
         hold, nor does petitioner contend, that Congress could
         not have drafted a statute encompassing virtually every
         building in the land, had it chosen to do so. Thus, this
         case does not present a constitutional challenge to
         congressional power under the Commerce Clause. It is our
         contention that, as held in Mennuti, the statute that
         Congress did pass, 18 U.S.C. § 844(i), as explicated by
         the House Judiciary Committee Report referred to above,
         does not cover a building used as a dwelling by a tenant
         of the owner, even though interstate utilities may have
         been used in the building.” Id. at 11 (emphasis added;
         footnote omitted).52
    We also note that section 844(i) applies only to property that is
         the South Union Street property.”
          The Government’s “Brief For The United States” in the
    Supreme Court likewise states “Petitioner concedes that Congress
    has power under the Commerce Clause to prohibit arson of sort he
    attempted. Relying on United States v. Mennuti, 
    639 F.2d 107
    Cir. 1981), petitioner argues that Congress did not intend to
    exercise its commerce power fully in enacting section 844(i), but
    intended to cover ‘business property’ only.” Id. at 5.
         Nothing in either the District Court or the Court of Appeals
    opinions in Russell even mentions any constitutional issue, and
    each treats the case as solely one of statutory construction,
    namely whether § 844(i) was inapplicable (as the defendant
    contended, before those courts and the Supreme Court, that it
    was) because the property was residential and hence not business
    property. Both those courts rejected that contention, holding
    that though residential in one sense the property was used as a
    business by the defendant. See United States v. Russell, 738
    F.2d at 827.
    “active[ly] employ[ed] for commercial purposes,” Jones, 120 S.Ct.
    at 1910, while the here relevant prong of the Hobbs Act is in no
    way analogously limited but rather applies regardless of whether or
    not the victim is engaged in any character of commercial activity.
    We conclude that Russell does not resolve the Commerce Clause
    aggregation     issue   as   applied    to    this    character   of   Hobbs    Act
          We recognize that “substantial” for purposes of Lopez category
    three has a qualitative as well as a quantitative aspect, though
    those two aspects are somewhat interrelated rather than being
    entirely independent of each other.                Limits on the aggregation
    principle, necessary to give meaning to “substantial” so as to
    preserve the distinction between “what is truly national and what
    is truly local,” should thus take into account both quantitative
    and qualitative considerations.              We conclude that the limits we
    have outlined do so notwithstanding that their most obvious focus
    may be quantitative.         To the extent that there is a meaningful,
    rational basis to aggregate, then the aggregated quantitative
    effect    on   interstate    commerce    tends       to   qualitatively   justify
    viewing the matter as truly national rather than truly local.
    Conversely, that the regulated category three intrastate conduct is
    not   a   commercial     activity      but    is     rather   essentially      “the
    suppression     of   violent   crime”    is    a   qualitative    consideration
    pointing towards the regulation being of a truly local nature
    unless there is a meaningful and rational basis for aggregation.
    There is no sufficient rational basis to aggregate the effects on
    interstate commerce of any of the four individual prototypically
    local crimes of violence here prosecuted with the effects on
    interstate commerce of all the undifferentiated mass of robberies
    covered by the Hobbs Act’s general proscription of any and all
    robberies that “in any way or degree . . . affect[] commerce.”
         We turn to Lopez and Morrison for guidance, concluding that
    their relevance is not confined to cases where the statute lacks a
    jurisdictional element. Moreover, we conclude that the Hobbs Act’s
    here relevant proscription of any robbery that “in any way or
    degree . . . affects commerce” does not constitute a regulation of
    commercial activity, notwithstanding that all robberies have some
    economic effect, and hence is within the scope of Lopez and
    Morrison.   We further conclude that the instant robberies fall
    within Lopez category three, and for that reason they are within
    the Commerce Clause power only if they “substantially” affect
    interstate commerce.   Individually considered, it is clear that
    none of them do.    Nor is there any rational basis to for that
    purpose aggregate their respective effects on interstate commerce
    with the effect on interstate commerce of all the undifferentiated
    mass of robberies covered by the Hobbs Act’s here relevant general
    proscription of any and all robberies which “in any way or degree
    . . . affect[] commerce.”     To allow such aggregation in Lopez
    category three cases would, without adequate justification, bring
    within the scope of the Commerce Clause the proscription of local
    violent (and other) crimes not constituting the regulation of
    commercial activity, crimes prototypical of those that historically
    have been within the reserved police power of the states, contrary
    to the principle that the Commerce Clause is limited to matters
    that are truly national rather than truly local.
         The conviction on each of the Hobbs Act counts accordingly
    should be reversed.53    Because each of the section 924(c)(1) counts
    of conviction is concededly dependent on the corresponding Hobbs
    Act count of conviction, all the section 942(c)(1) counts of
    conviction should likewise be reversed.
         We   respectfully    dissent   from   the   affirmance   of   these
          As we conclude the evidence does not suffice to show the
    requisite effect on interstate commerce we do not separately
    address the complaints of the jury charge.
    PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring in the dissent
    from the judgment affirming conviction, with whom GARWOOD, JOLLY
    and DeMOSS, Circuit Judges, join:
          For a second time this court has been unable to agree upon the
    bite of recent Supreme Court interpretations of the Commerce
    Clause.     This should be no surprise.            We are left adrift by a
    statute whose reach is at best no more fixed than a property line
    set at the latest low tide mark of an ocean tributary.
          There is some certainty.     The Supreme Court has turned away
    from the New Deal view that the reach of the Commerce Clause is to
    be largely defined by the political process.           But the path it will
    follow and how far it will go are undecided.                   In turn, the
    respective roles of Congress and the courts in this enterprise
    remain uncertain.    Add the Hobbs Act’s unique effort to define its
    reach by proscribing all robberies over which there is federal
    jurisdiction – a wholly tautological statement made at the zenith
    of   the   judiciary’s   abandonment    of   the    commerce   field   to   the
    Congress – and we are left with three choices.             We can take the
    Hobbs Act as a congressional punt and decide it ourselves, we can
    leave it to the political process, or we can invoke the dialogic
    process of the doctrine of clear statement.           The first two options
    describe this court’s division.         Our court’s impasse leads me to
    state the case for the third path.           At the least, it will make
    plain the division of this court.            In describing this path, I need
    not retreat from the view expressed for half of our court in
    Hickman and so ably defended in Judge Garwood’s opinion, again for
    one half of our court.
          With the developing case law since Hickman, there is a step
    that principles of judicial restraint offer this inferior court
    before it decides if Congress has the authority under the Commerce
    Clause to make a federal crime of local robberies such as those
    before us here.       It could insist that Congress first do what it has
    not done – make clear its purpose to reach the wholly intrastate
    activity charged in the crimes now before us.              For reasons I will
    explain, by the third path we ought to refuse to apply the Hobbs
    Act to this genre of local robberies until Congress clearly states
    its purpose to do so. Only then should the courts decide the
    commerce question now being pressed upon us.
          The Supreme Court has long required that if Congress intends
    to alter “the usual constitutional balance between the States and
    the Federal Government,”54 it must make an unmistakably clear
    statement of its intention to do so in the language of the
             Will v. Michigan Dept. of State Police, 
    491 U.S. 58
    , 65 (1989)
    (quoting Atascadero State Hosp. v. Scanlon, 
    473 U.S. 234
    , 242 (1985)).
               Will, 491 U.S. at 65; United States v. Bass, 
    404 U.S. 336
    , 349
         Although it found expression most often in the context of
    congressional abrogation of state sovereign immunity,56 the doctrine
    of clear statement has been applied broadly where uncertainty in
    the application of congressional directives would leave to the
    court the decision to upset the federal-state balance. The Supreme
    Court has invoked the doctrine in various settings.              It found that
    states were not “persons” within the meaning of 42 U.S.C. § 1983,57
    and that the Federal Age Discrimination in Employment Act could not
    be construed to interfere with a State’s choice of judges absent
    clear language that judges are included.58           Similarly, the doctrine
    of clear statement is one of the articulated limits on the spending
    power,59 and federal laws criminally punishing “conduct readily
    denounced as criminal by the States” are narrowly interpreted
    absent a clear statement of Congress’ intent to significantly alter
    the federal state-balance.60
         The doctrine of clear statement is animated by principles of
    federalism      inherent    in     the   structure   of   the   Constitution.61
              Atascadero, 473 U.S. at 242.
              Will, 491 U.S. at 65.
            Gregory v. Ashcroft, 
    501 U.S. 452
    , 463-64 (1991). This although the
    statute provided that uncertainty of scope should be resolved in favor of
    coverage. Id. at 467.
              South Dakota v. Dole, 
    483 U.S. 203
    , 207 (1987).
              Bass, 404 U.S. at 349.
            See Seminole Tribe of Florida v. Florida, 
    517 U.S. 44
    , 55-56 (1996)
    (“This rule arises from a recognition of the important role played by the
    Eleventh Amendment and the broader principles that it reflects.”); Gregory,
    501 U.S. at 461 (“This plain statement rule is nothing more than an
    acknowledgment that the States retain substantial sovereign powers under our
    Although the protection of the States against intrusive exercises
    of Congress’ Commerce Clause powers is still largely left to the
    political process,62 to permit courts to decide whether a poorly
    aimed congressional thrust encroached upon state regulation of
    intrastate criminal activity “would evade the very procedure for
    lawmaking on which Garcia relies to protect states’ interests.”63
    Insisting upon a clear statement from the Congress is a modest
    exercise of judicial power.            It only asks that Congress do its job,
    insisting that Congress engage its political responsibility by
    being clear of its purpose when it would reach into a sphere of
    state authority.64          In its most sanguine form, it “may lead some
    members to engage in the kind of deliberation about the scope of
    their Article I powers that they should undertake anyway as part of
    their responsibility to uphold the Constitution.”65
          The doctrine of clear statement does not require us to define
    “traditional governmental activities” in the abstract, an approach
    rejected by the Court in Garcia.66              We follow long-standing Supreme
    constitutional scheme.”).
            Garcia v. San Antonio Metropolitan Transit Authority, 469 US. 528
    (1985) (declining to review limitations placed upon Congress’ Commerce Clause
    powers by our federal system).
             Gregory, 501 U.S. at 465 (quoting LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL
    LAW § 6-25, at 480 (2d ed. 1988)).
             See United States v. Lopez, 
    514 U.S. 549
    , 577 (Kennedy, J.,
    concurring) (citing New York v. United States, 
    505 U.S. 144
    , 155-169 (1992)).
               LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-9, at 857 (3d ed. 2000).
            Garcia, 469 U.S. at 538-540 (arguing that it is too difficult to
    define a “traditional governmental activity”).
    Court precedent, decided after Garcia,67 that requires us to be
    certain of Congressional purpose before finding that a federal law
    overrides the federal-state balance.68            There is here no cordoning
    off of traditional governmental activities — rather, we follow the
    Supreme Court’s lead, recognizing that the doctrine of clear
    statement protects a sphere of state authority.69               Local robberies
    of   local     businesses    have      always   been   the    concern   of   state
    government and within this sphere of state authority that must not
    be entered absent a clear congressional statement.70              Significantly
    and independently it is a legal doctrine uniquely fitted to the
    hand of a court that would act with restraint in insisting that the
    enumerated powers remain just that.             For this reason, by this path
    we would not now decide that the Hobbs Act may be applied to
    discrete local robberies.              The political process ought to first
    decide its intended reach, at least before the full force of
    judicial review is unleashed.
             Gregory, 501 U.S. at 464 (explaining how the doctrine of clear
    statement works in conjunction with Garcia’s conviction that the federal-state
    balance is primarily protected by the political process); Will, 491 U.S. at
    65; Atascadero, 473 U.S. at 247 (articulating doctrine of clear statement four
    months after Garcia was decided).
               Id. at 460 (citing Atascadero, 473 U.S. at 243).
            Gregory, 501 U.S. at 460-61 (requiring a clear statement of
    congressional intent before interpreting a law to infringe upon State
    sovereignty); see also Lopez, 514 U.S. at 611 (Souter, J., dissenting) (noting
    that the doctrine of clear statement should be relied upon in cases
    implicating congressional encroachment upon “state legislative prerogatives”
    or “enter[ing] into spheres already occupied by the States.”).
               Bass, 404 U.S. at 523-24.
           The Hobbs Act fails to provide the expression of “unequivocal
    congressional intent” necessary to intrude upon this sphere of
    state       authority.71        It    is   true    that    the    statute       reaches   all
    robberies that affect commerce “in any way or degree,”72 and it is
    also a truism that the Hobbs Act expresses congressional intent to
    use “all the constitutional power Congress has.”73 Neither of these
    statements state a congressional purpose to regulate the robberies
    here, as I will explain.               And although in recent years there have
    been        episodic   federal        prosecutions        of     these    type    of   local
    robberies, this activity of other branches of government reflects
    purpose only in the sense that it was not halted by the Congress –
    inaction       from    which     we    ordinarily     do       not   infer   purpose      and
    certainly not clear purpose. Significantly, there is no principled
    limit to a reading of commerce power that would sustain federal
    jurisdiction over the activity charged in the cases before us
    today.         Those who would argue that the Congress has clearly
    expressed its purpose to make federal crimes of the robberies here
    will    have     to    persuade       that   Congress          intended    to    reach    the
    proverbial “robbery of the lemonade stand”; that its purpose was to
    claim federal hegemony over local activities, including a street
    mugging.        Either that or defy the words claimed to be so clear by
    some case-by-case judgment that is little more than the arbitrary,
    “well, not that far.”
                Atascadero, 473 U.S. at 247.
                18 U.S.C. § 1951.
                Stirone v. United States, 
    361 U.S. 212
    , 215 (1960).
         By the time the Anti-Racketeering Act of 1934 was amended and
    became the Hobbs Act, the Supreme Court had already held that
    congressional power under the Commerce Clause was “plenary and
    extends to all such commerce be it great or small.”74                 This was a
    direct subscription to the view that the limits of congressional
    power under the Commerce Clause will be set by the political
    process; at the least the political process was the main player.
    As the Court later conceded in Katzenbach v. McClung,75 it would not
    “interfere” as long as Congress violated “no express constitutional
    limitation.”76          Until Lopez was decided, the Court upheld all
    Commerce Clause legislation as a matter of course, concluding that
    where there is “a rational basis for finding a chosen regulatory
    scheme necessary to the protection of commerce, our investigation
    is at an end.”77        Given that the Court wholly deferred to Congress’
    own interpretation         of    the   limits   of   the   commerce   power,   the
    observation that the Hobbs Act purports to reach to the limits of
    the commerce power as defined by the courts sheds no light.                In an
    era when the limits of the commerce power were defined by the
    Congress, even a congressional directive to reach to the limits of
    the Commerce Clause was no direction at all – it was wholly
            Nat’l Labor Relations Bd. v. Fainblatt, 
    306 U.S. 601
    , 606 (1939); see
    also Nick v. United States, 
    122 F.2d 660
    , 668-69 (4th Cir. 1941) (holding that
    Fainblatt mandates an expansive reading of the Anti-Racketeering Act).
    379 U.S. 294
              Id. at 304.
    77 Md. v
    . Wirtz, 
    392 U.S. 183
    , 189 (1968) (quoting Katzenbach, 379
    U.S. at 303-04).
    tautological and as we will see, the Hobbs Act definition of
    commerce was not even that pointed.
           Lopez and Morrison, with the doctrine of substantiality,
    returned the courts to the field, to once again police the limits
    of congressional authority under the Commerce Clause.                   Arguably,
    when the Court began to withdraw from the concession to the
    political process, the earlier congressional directives that the
    Act ought reach as far as the constitution permits could then be
    seen as a clear expression of congressional purpose in that it was
    no longer talking to itself; rather the courts were to decide.                But
    with    the     doctrine    of   substantiality,       whether   the   meandering
    intrusions by local United States Attorneys can be validated if
    Congress wishes to do so, is at best uncertain.                   The statute’s
    description of robberies and its definition of commerce are quite
    different, its commerce definition clearly reaching conduct falling
    under the first two prongs of Lopez but leaving intrastate activity
    (as before us here) to be picked up at all only by its question-
    begging catch of all other commerce over which the United States
    has federal jurisdiction:
                   “commerce within the District of Columbia, or
                   any Territory or Possession of the United
                   States; all commerce between any point in a
                   State, Territory, Possession, or the District
                   of Columbia and any point outside thereof; all
                   commerce between points within the same State
                   through any place outside such State; and all
                   other commerce over which the United States
                   has jurisdiction.”78 (emphasis supplied)
           The “robberies” in this case, if picked up at all, must be
    reached by the phrase “and all other commerce over which the United
                18 U.S.C. § 1951(b)(3) (emphasis added).
    States has jurisdiction.”       This expression of purpose, made at the
    zenith of legislative hegemony in the contest of who decides the
    limits of the commerce power, is no more plain than the Jones Act’s
    reach of any seaman or the Omnibus Crime Control and Safe Streets
    Act’s reach of every firearm.79
           As we observed, it is now clear that this generalized reach
    cannot touch intrastate acts that do not have a substantial effect
    upon   interstate   commerce.      The    government   concedes    that   the
    robberies before us cannot meet the substantial effects requirement
    – all robberies must be aggregated.        At this point we can engage in
    a supposition that Congress thought all these local robberies were
    sufficiently linked to regulate them as a class. This is fanciful
    because such an aggregation was not even thought to be necessary at
    the time of the 1934 Act or the Hobbs Act.               The fact is that
    Congress has never made that decision.              It has never decided
    whether or what to aggregate.
           Hickman insists that Morrison’s requirement that regulated
    intrastate activities have a substantial effect upon intrastate
    commerce has no content absent a further insistence upon a rational
    relationship among discrete effects that would be aggregated. This
    means that a judgment about the rationality of aggregating the
    effects of these discrete robberies is a correlative requirement of
    substantiality, and must be made.          By this third path, it must
             Welch, 483 U.S. at 475-76 (applying doctrine of clear statement to
    exempt states from the Jones Act despite the sweeping language of “[a]ny
    seaman” in the statute); Bass, 404 U.S. at 350 (employing the doctrine of
    clear statement to exclude the “mere possession” of firearms from the reach of
    the Act).
    first be made by the Congress.             Only after that judgment is made,
    should the courts decide the issue of the level of deference due
    that legislative judgment.           And it is then that the very content of
    the newly required substantial effect will be decided.
         There is irony in a court about the task of policing the
    enumerated      powers   moving      to   the    alternative     of    presuming    a
    legislative     judgment       or   supplying    its    own   view    in   the   first
    instance.     If it is sufficient to hypothesize rationality, drawing
    upon the creativity of counsel and judicial imagination there is
    nothing substantial about substantiality; the courts will have
    wholly deferred to the political process as the arbiter of the
    state-federal role.            On the other hand, if the congressional
    purpose is not relevant, or is simply supplied by the courts, the
    courts would be the exclusive arbiter. I am not persuaded that the
    principle of the separation of powers ought to only oscillate
    between these two polarities.
         This     is   not   the    first     time   that   the   doctrine     of    clear
    statement has been applied to limit the application of a federal
    criminal statute to intrastate criminal conduct.                 In United States
    v. Bass,80 for example, the Court required a clear statement from
    Congress before it would apply the Omnibus Crime Control and Safe
    Streets Act to extend federal law enforcement to a class of
    intrastate criminal activity that had long been regulated solely by
              Bass, 404 U.S. at 349-51.
    the States.81           Two years later, in United States v. Enmons,82
    Congress applied this doctrine to the Hobbs Act.                    In Enmons the
    Court refused to apply the Hobbs Act to violence associated with a
    labor dispute even though this activity was presumptively within
    the broad bounds of the statute.               Despite the general and broad
    language of the Hobbs Act, the Court required “language much more
    explicit” before it would apply it to local strikes because doing
    so would represent “an extraordinary change in federal labor law”
    and   constitute        “an   unprecedented    incursion     into    the    criminal
    jurisdiction of the States.”83
          In response to Enmons, the Sixth and Ninth Circuits narrowly
    construed the Hobbs Act, concluding that only activities that
    constitute “racketeering” are prohibited by the Act.84                     The Court
    rejected this approach in United States v. Culbert,85 concluding
    that it conflicted with a plain reading of the statute as well as
    the legislative history.86 Culbert also rejected the claim that the
    doctrine      of   clear      statement   required     the   Court    to     read   a
    racketeering requirement into the Hobbs Act, characterizing the
    argument      as   an    attempt   to   “manufacture    ambiguity     where     none
               Id. at 350-51.
    410 U.S. 396
               Id. at 350-51.
            United States v. Culbert, 
    548 F.2d 1355
     (9th Cir. 1977); United
    States v. Yokley, 
    542 F.2d 300
     (6th Cir. 1976).
    435 U.S. 371
               Id. at 373-378.
    exists.”87     The Court also rejected the idea that a racketeering
    requirement      must   be    read   into    the   Act   because      without    a
    racketeering requirement, the federal-state balance would be upset.
    The Court held that “there is no question that Congress intended to
    define as a federal crime conduct that it knew was punishable under
    state law.”88 Of course, these were robberies fully under the first
    two prongs of Lopez, never seen as the exclusive domain of the
         Culbert and Enmons teach that by defining as a federal crime
    conduct that it knew was punishable under state law, Congress knew
    that it would alter the balance of federal-state power.                         The
    question was whether the application of the statute would generate
    a result that interfered with state authority in a way that
    Congress had not intended.89          Unlike Culbert, which involved an
    attempted robbery of $100,000 from a federally insured bank, Enmons
    involved the application of the Hobbs Act to violence used to
    achieve      legitimate      union   objectives    in    a   strike,     thereby
    effectuating      “an     unprecedented     incursion    into   the     criminal
    jurisdiction of the States.”90        Here, as in Enmons, we cannot apply
              Id. at 379.
              Id. at 379.
            It should be noted that while Culbert held that “Congress intended to
    make criminal all conduct within the reach of the statutory language” of the
    Hobbs Act, this must be read as a response to the argument that a racketeering
    requirement be read into an act, given that the conduct reached in Enmons fit
    within the statutory language but presumably could not be reached without a
    clear statement from Congress.
              Enmons, 410 U.S. at 411.
    the statute to violate the protected sphere of state authority
    without a clear statement that Congress intended that result.
           To make clear its purpose to regulate this activity, Congress
    must    make   a     legislative    judgment    about    the   rationality   of
    regulating the activity as a class, impliedly or explicitly.
    Courts in turn must decide the deference due that legislative
    judgment, a task that has proved difficult and divisive in the
    course of recent cases. Only then will it be decided whether the
    requirement of substantial effect has content or is only a symbolic
    waive of the judicial hand.         The recent pattern of Commerce Clause
    cases offers a powerful argument for the dialogic legislative first
    step afforded by the doctrine of clear statement.
           The Court’s claim of a judicial role in defining the limits of
    the commerce power did not suggest that it was to the exclusion of
    Congress.          Nonetheless,    we   could   simply   proceed.     And    in
    justification point out that even with a clear statement, at the
    margins we might yet be engaged to adjudicate the limits by a case-
    by-case decision of this one’s in and that one’s out.               But there
    remains the nagging precedent and transcendent question of the
    rationality of aggregating and what is meant by rationality, a task
    the Congress and the courts in turn have not faced.              The question
    nags because of the further suggestion that unless no deference
    will be given to such a congressional decision, we ought not
    proceed without it, and the Supreme Court has not said that no
    deference is due.
         All said, by the third path we ought to require Congress to
    first make clear the wholly intrastate robberies with an effect
    upon interstate commerce that it would regulate, whether connected
    by   conspiracy,   spree,   or   in    some   other   way,   possibly   a
    confrontational response of single robbery without substantial
    effect.   As Chief Justice Rehnquist reminded in Morrison:
         [I]n the performance of assigned constitutional duties
         each branch of the government must initially interpret
         the Constitution, and the interpretation of its powers by
         any branch is due great respect from the others....91
         We have nothing from the Congress.
              United States v. Morrison, n.7 
    120 S. Ct. 1740
    , 1753
    EDITH H. JONES, Circuit Judge, dissenting, with whom JOLLY, SMITH,
    DeMOSS and CLEMENT, Circuit Judges, join:
              Judges Garwood’s and Higginbotham’s non pareil opinions
    explain why eight members of this court would hold that appellant
    McFarland could not be constitutionally prosecuted under the Hobbs
    Act for routine convenience store robberies.       The Supreme Court’s
    decisions in Lopez and Morrison compel this result, in our view, by
    limiting the extent to which the Commerce Clause facilitates ever-
    deeper   federal    incursions   into   the    states’   constitutional
    prerogative of local crime control.      Eight other judges silently
    reject this conclusion.     Unfortunately, they have withdrawn from
    the field of reasoned dispute, just as they did in a similar case
    two years ago.     United States v. Hickman, 
    179 F.3d 230
     (5th Cir.
    1999) (en banc).    It is our view that our court owes the public a
    candid explanation of our respective positions.
              One may ask why our silent colleagues should be called on
    to write anything. Is it somehow inappropriate for courts to issue
    opinions when they are evenly divided?        The short answer to this
    question is, no.    Both the general role of the appellate courts and
    the exact circumstances of this case virtually demand expression of
    our competing views.
              Federal appellate courts’ twin duties are to decide
    appeals and to articulate the law.        Writing reasoned opinions,
    especially in important cases, is critical to the responsible
    performance of these duties.     One of the most prominent studies of
    the federal appellate courts exhorts us:
              The obligation to give reasons is vital to both
         functions.   When reasons are announced and can be
           weighed, the public can have assurance that the
           correcting process is working. Announcing reasons can
           also provide public understanding of how the numerous
           decisions of the system are integrated. In a busy court,
           the reasons are an essential demonstration that the court
           did in fact fix its mind on the case at hand.          An
           unreasoned decision has very little claim to acceptance
           by the defeated party, and is difficult or impossible to
           accept as an act reflecting systematic application of
           legal principles.    Moreover, the necessity of stating
           reasons not infrequently changes the results by forcing
           the judges to come to grips with nettlesome facts or
           issues which their normal instincts would otherwise cause
           them to avoid.
    Paul D. Carrington, Daniel J. Meador and Maurice Rosenberg, Justice
    on Appeal 10 (West 1976) (emphasis added).              Judge Wald, formerly
    Chief Judge of the District of Columbia Circuit, also emphasized
    this    point:   “The   courts’   opinions      should    contain      reasoned
    explanations of their decisions to lend them legitimacy, permit
    public evaluation, and impose a discipline on judges.”                        Hon.
    Patricia Wald, The Problem with the Courts: Black-Robed Bureaucracy
    or Collegiality Under Challenge?, 42 Md. L.REV. 766, 768-69 (1983).
                The benefits of issuing reasoned opinions – fostering
    public understanding of the law, accountability and transparency,
    and imposing self-discipline on the judges – are not limited to
    majority    opinions.        Judges’    occasional      writings,      such     as
    concurrences,    dissents,    opinions      following    denial   of   en     banc
    rehearing – and opinions written despite an evenly divided court –
    lack the force of law but deploy the force of suasion for exactly
    the same purposes as majority opinions.          In no case can we compel
    our brethren to provide published reasons for their decisions.                  By
    their silence here, however, they have defaulted their duties of
    public explication, accountability and transparency.
                 Our     colleagues’     uniform       silence       is      initially
    disappointing because this is an important case.                For more than a
    decade, the Supreme Court has been reinvigorating federalism as a
    component of our constitutional structure.              Lower federal courts
    have   the    obligation    conscientiously        to   enforce       the   Court’s
    decisions in this evolving area.              The new trend furnishes issues
    that should intellectually delight and challenge us and evoke our
    utmost analytical powers.          Our opinions may be useful to the
    Supreme Court, for good or ill, when this case is appealed, and may
    be persuasive in other federal courts.
                 The reticence of our colleagues cannot, in our view, be
    rationalized as prudence, or the unwillingness to write reasons in
    a non-definitive case.        The outcome of this case is definitive.
    When the court tackled the same issue two years ago, nearly the
    same group of judges declined to give reasons for affirming a Hobbs
    Act conviction against a Commerce Clause attack.                As a result, the
    federal government feels free to prosecute purely local robberies
    without inhibition in this circuit.            Our pattern jury instructions
    continue to say that a showing of any effect on interstate commerce
    (no matter how small) will suffice to create federal jurisdiction
    over a Hobbs Act crime.        The only brake installed by this court
    against   federalization      of   all    robberies     under    the    Hobbs   Act
    consists of our arbitrary exclusion a few years ago of robberies of
    individuals.       United States v. Collins, 
    40 F.3d 95
     (5th Cir. 1994).
    The affirming judges’ silence here thus assures, whether they
    desire it or not, that there is no principled limit on federal
    prosecution of robberies – even of the proverbial lemonade stand.
              Adding to the mystery of their silence is the long-
    standing and consistent, albeit optional, practice of issuing
    explanatory opinions in other courts that have split evenly when
    sitting en banc.   There are at least two dozen cases in recent
    years, from nearly every circuit, in which such opinions were
    issued.92          Responding        to     a     colleague’s
          United States v. Brown, 
    276 F.3d 14
     (1st Cir. 2002) (en
    banc): Three judges wrote separate statements supporting
    reversal of the district court’s judgment
         Jean v. Collins, 
    221 F.3d 656
     (4th Cir. 2000) (en banc):   1
    opinion concurring in affirmance by equally divided court; 2
    dissenting opinions.
         United States v. Walton, 
    207 F.3d 694
     (4th Cir. 2000) (en
    banc): An opinion for affirmance written by a deceased judge was
    concurred in by half the court. In addition, two judges wrote
    separate concurring opinions, and three judges wrote dissenting
         United States v. Barber, 
    119 F.3d 276
     (4th Cir. 1997).
         Stupak-Thrall v. United States, 
    89 F.3d 1269
     (6th Cir. 1996)
    (en banc): The order affirming the judgment of the district
    court by an equally divided vote states: “The mandate will not
    issue for fourteen (14) days from the date of this order so that
    members of the court may file any separate opinions they wish
    to.” Id. at 1269. Thereafter, concurring and dissenting
    opinions were filed.
         United States v. Page, 
    167 F.3d 325
     (6th Cir. 1999) (en
    banc): 8 judges joined separate concurring opinion supporting
    affirmance; 3 separate opinions supporting reversal.
         Norwood v. Bain, 
    166 F.3d 243
     (4th Cir. 1999) (en banc):
    separate opinions written explaining reasons why judges would
    reverse or affirm district court’s judgment on issues as to which
    en banc court was equally divided.
         United States v. Chen, 
    131 F.3d 375
     (4th Cir. 1997) (en
    banc): defendants’ 18 U.S.C. § 924(c)(1) convictions were
    affirmed by an equally divided court. Judge Wilkins wrote a
    separate concurring opinion explaining the reasons for affirming
    those convictions. The judges who voted to reverse the
    convictions did not file an opinion.
         Baker v. Pataki, 
    85 F.3d 919
     (2d Cir. 1996) (en banc): One
    separate opinion in favor of affirming; two separate opinions in
    favor of reversing. The separate opinion in favor of affirmance
    cites cases regarding the practice of filing opinions in such
    cases in other circuits and notes:
              Our prior cases do not purport to announce a
              rule that opinions on the merits should not
              be written, and we believe that there should
              be an option to issue them (which is
              obviously exercised affirmatively in this
              case). This is especially so because the
              views of this court of intermediate appeal
              might be useful to the Supreme Court in the
              event of an application for certiorari.
    Id. at 922 n.2.
         United States v. Hamrick, 
    43 F.3d 877
     (4th Cir. 1995) (en
         Smith v. Zant, 
    887 F.2d 1407
     (11th Cir. 1989) (en banc): By
    an equally divided vote, the court affirmed the district court’s
    grant of habeas relief as to Smith’s death sentence. Judge
    Tjoflat wrote a separate concurrence explaining why he and five
    other judges would affirm the denial of habeas relief as to the
    conviction, and would reverse the grant of habeas relief as to
    the death sentence. Judge Kravitch wrote a concurrence and
    dissent explaining why six judges would reverse the denial of
    habeas relief as to the conviction and affirm the grant of habeas
    relief as to the death sentence.
         United States v. Grey Bear, 
    863 F.2d 572
     (8th Cir. 1988) (en
    banc): Separate opinions were filed in support of reversal and
    in support of affirmance. The opinion in support of reversal
    states that it is written “solely because” the opinion in support
    of affirmance “could cause confusion among lawyers and district
    judges of this circuit.” Id. at 573. The opinion in support of
    affirmance states: “As the divided court today affirms the
    rulings of the district court with respect to joinder and
    severance, it is appropriate that we articulate the reasons that
    five judges vote in favor of this result.” Id. at 580.
         Hotel & Restaurant Employees Union, Local 25 v. Smith, 
    846 F.2d 1499
     (D.C. Cir. 1988): The court split over the issues of
    standing and ripeness. Judge Mikva’s separate opinion
    acknowledges that the opinions “carry no weight and determine no
    law of the circuit” and that it is “unlikely they will shed much
    light.” Nevertheless, he states that “[a] reasonable regard for
    our colleagues’ views in disagreement ... compels our brief
    statement of how we believe this appeal should have been
    resolved.” Id. at 1500. Judge Silberman filed a separate
    opinion for the other half of the court.
         Piper v. Supreme Court of New Hampshire, 
    723 F.2d 110
    criticism of his filing a separate opinion in one such case, Judge
    Wilkins of the Fourth Circuit had this explanation:
              Judge Murnaghan’s unsupported statement that a judge
         should remain silent when an en banc vote on a particular
         issue is equally divided is misplaced. To the contrary,
         many times a judge feels that it is important for the
    Cir. 1983) (en banc):   Separate opinions supporting affirmance
    and reversal.
         Elmore v. Cone Mills Corp., 
    23 F.3d 855
     (4th Cir. 1994) (en
    banc): The court was evenly divided as to one issue. Three
    separate opinions were filed regarding that issue, two in support
    of affirmance and one in support of reversal.
         Faulkner Advertising Assocs., Inc. v. Nissan Motor Corp. in
    945 F.2d 694
     (4th Cir. 1991) (en banc): Separate
    opinions in support of affirmance and in support of reversal.
         United States v. Klubock, 
    832 F.2d 664
     (1st Cir. 1987) (en
    banc): one opinion supporting affirmance and two supporting
         Jenkins v. Agyei, 
    807 F.2d 657
     (8th Cir. 1987) (en banc):
    separate opinions supporting affirmance and reversal.
         Roesch, Inc. v. Star Cooler Corp., 
    712 F.2d 1235
     (8th Cir.
    1983) (en banc): After noting that the usual practice when a
    judgment is affirmed by an equally divided court is not to
    express any opinion, the judges supporting affirmance stated:
    “In the present case, however, because of the significance of the
    issue involved and the circumstances of the changed en banc
    panel, we elect to set forth our reasons for affirming the
    district court’s judgment.” Id. at 1236. A brief dissent was
    filed by the judges supporting reversal, relying on the reasons
    discussed in a dissenting opinion filed in a companion case
         Battle v. Watson, 
    712 F.2d 1238
     (8th Cir. 1983) (en banc):
    The judges supporting affirmance adopted the reasoning of the
    judges supporting affirmance in Roesch. The judges supporting
    reversal wrote a separate dissent.
         But see FMC Corp. v. United States Dep’t of Commerce, 
    29 F.3d 833
     (3d Cir. 1994) (en banc): One of the dissenting
    opinions contains a footnote stating: “Because the court is
    equally divided on the issue of the government’s liability as an
    arranger, and it is our tradition not to write an opinion in that
    situation, I do not set forth what I believe are independent
    reasons to reverse the district court in that regard.” Id. at
    854 n.7.
         litigants and others to know why the court is divided on
         a particular issue. And, we routinely author opinions
         that do not carry the weight of the majority opinion such
         as concurring opinions, dissenting opinions, and opinions
         following a failed poll for en banc consideration; an
         expression of the reasons supporting a vote in this
         situation is not dissimilar. Moreover, the expression of
         the views of individual judges when an en banc vote is
         equally divided is hardly novel.
    United States v. Barber, 
    119 F.3d 276
    , 289 (4th Cir. 1997) (en
    banc) (citing cases).
              In this court as well, silence is not our custom. Judges
    have explained themselves in many previous cases where this court
    divided evenly en banc.   Carter v. United States, 
    325 F.2d 697
    Cir. 1963) (en banc); United States v. Holmes, 
    537 F.2d 227
    Cir. 1976) (en banc); Meltzer v. Bd. of Pub. Instruction of Orange
    County, Florida, 
    577 F.2d 311
     (5th Cir. 1978) (en banc); United
    States v. Ibarra, 
    965 F.2d 1354
     (5th Cir. 1992) (en banc); United
    States v. Greer, 
    968 F.2d 433
     (5th Cir. 1992) (en banc); United
    States v. Kirk, 
    105 F.3d 997
     (5th Cir. 1997) (en banc); United
    States v. Hickman, 
    179 F.3d 230
     (5th Cir. 1999) (en banc).       In
    1997, five of the eight judges who now say nothing joined an
    opinion on an issue similar to the one now before us, whether Lopez
    applied to invalidate a federal gun possession violation.    United
    States v. Kirk, 105 F.3d at 998 (en banc) (separate opinion of
    Judge Parker, joined by Judges King, Davis, Wiener and Stewart).
    The court was also evenly divided in Kirk.   One wonders what could
    prompt silence here, when juxtaposed with the writings there?    In
    sum, there   are customary, issue-specific and even judge-specific
    precedents for publishing written explanations following evenly
    split en banc decisions in our court.
                 Given the sharpness and timeliness of the issue that
    divides this court, the silence of those who affirm McFarland’s
    conviction has a public dimension.             The court is an institution
    defined by the reasoned exercise of power.               It signals disregard
    for the public – the federal prosecutors and defense attorneys –
    who remain unenlightened over how to avert, or precipitate, serious
    discussion of the limits now imposed by the commerce clause on
    federalization of local crime. Silence exhibits a unique unconcern
    for appellant McFarland, as earlier for appellant Hickman, both of
    whom were entitled to know how the power of the federal government
    constitutionally bore down on them.            Our court almost invariably
    gives reasons for affirming criminal convictions – but not today.
    Even    in   non-orally    argued    summary   calendar    dispositions,    the
    defendants invariably receive some explanation in response to their
    appeals.93    Finally, this silence signals indifference toward the
    predictability required of a fair-minded criminal justice system.
                 While    diminishing       the    court’s     transparency     and
    accountability, our colleagues’ silence may also obscure their
    internal disagreements.            But if that were the sole purpose, it
    makes no     sense.       Judges    often   express   different   reasons   for
    reaching a single result.            In fact, the best test of competing
          As Judge Richard Arnold put it, “The third duty of the
    court is to write an opinion which is intelligible, which
    explains the result, and which we hope, is acceptable to the
    losing side. I think about losing litigants a lot. Those are
    the people who need to understand that they have been heard –
    that a reasoning creature of some kind has evaluated their
    argument and comes to some sort of conclusion about it. They
    won’t like it; they won’t enjoy losing, but I hope that they will
    have a sense that they have been heard.” Richard S. Arnold, The
    Future of the Federal Courts, 
    60 Mo. L
    . Rev. 533, 536 (1995).
    legal theories is in the open marketplace of ideas.                               Silence,
    therefore, could mean an unwillingness to compete.94
                   Had any of our silent colleagues chosen to compete, they
    would have to explain why – in the face of Lopez, Morrison, Jones
    and Judges Garwood’s and Higginbotham’s able opinions – the Hobbs
    Act regulates “interstate commerce” by federalizing even a single
    local robbery.95         Because our colleagues are unwilling to speak for
    themselves, and because the public is entitled to receive some
    reasons for affirming McFarland’s conviction, we shall attempt to
    paraphrase the most significant arguments for their position.
                   Those     who   affirm    concede      that    none    of   these     local
    robberies, considered individually or collectively, “substantially
    affects” interstate commerce, as Lopez category III requires. They
    acknowledge       they     can    only   show    a    proper     basis     for    federal
    prosecution under Lopez and Morrison if the Hobbs Act “regulates”
    some        intrastate     activity      whose       aggregate       national       impact
    substantially       affects       interstate     commerce.        But      what    is   the
    regulated       activity,        and   how   are     its     “substantial         effects”
          “If I cannot give a reason I should be willing to stand
    to, I must shrink from the very result which otherwise seems
    good.” County of Los Angeles v. Kling, 
    474 U.S. 936
    , 940 n.6
    (1985) (Stevens, J. dissenting from summary reversal) (quoting
    Karl Llewellyn, The Common Law Tradition 26 (1960), quoted in
    Reynolds & Richman, The Non-Precedential Precedent -- Limited
    Publication and No-Citation Rules in the United States Courts of
    Appeals, 78 Colum. L. Rev. 1167, 1204 (1978)).
          We all agree that under the Hobbs Act, Congress may punish
    robberies that are perpetrated against the channels of interstate
    commerce (Lopez category I), goods or things in interstate
    commerce (Lopez category II), and even individual robberies that
    “substantially affect” interstate commerce (Lopez category III).
    Our dispute rests solely on whether intrastate robberies like the
    ones before us, that have no impact on interstate commerce, can
    be federally prosecuted.
    calculated?      There are mutually conflicting ways to answer these
    critical questions.        The silent judges apparently cannot agree on
    the answers, and some of them apparently adhere to more than one
                  The first route is to assert that robbery is an “economic
    activity.”      This theory draws on an alleged distinction between
    Morrison and Lopez.         Even if Morrison states a categorical rule
    against aggregating the effects of “noneconomic, violent criminal
    conduct”,     some   of    the    silent    judges    apparently    believe     that
    aggregation of robberies under the Hobbs Act is still permissible.
    While Lopez suggested that aggregation of noncommercial activities
    is inappropriate, see Lopez, 514 U.S. at 561, 115 S. Ct. at 1631
    (emphasis      added),     Morrison’s       language    “clarifies”     that     the
    aggregation of noneconomic activities is problematic.                 529 U.S. at
    617, 120 S. Ct. at 1754 (emphasis added).                 Thus, their argument
    goes, Congress could have had a rational basis for concluding that
    the Hobbs Act regulates economic activity because robbery is an
    “economic crime.”         More colorfully, one might assert that because
    the   thief    sticks     his    hand   into    the   stream   of   commerce,    not
    inadvertently or tangentially, but as a primary and defining aspect
    of his conduct, robbery is an economic activity.                Substituting yet
    another metaphor, the robber’s conduct is a “coercive barter” in an
    unquestionably commercial environment – a convenience store.
                  Of course, robbery should not be considered an “economic”
    activity.      The dictionary defines “economic” as “relating to, or
    concerned with the production, distribution and consumption of
    commodities.”        Webster’s Third New International Dictionary 720
    (1981).      Certainly, robbery has some economic effect, but so do
    murder, aggravated assault, and theft.                      Further, to say that
    robberies may be aggregated because robbery is an economic activity
    is contrary to the decisions of this court and many other courts
    that robberies of individuals may not be aggregated for prosecution
    under the Hobbs Act.           See cases cited in n.35 of Judge Garwood’s
    opinion.      Under the robbery-as-economic-activity theory, Congress
    could make it a federal crime intentionally to walk out of your
    neighbor’s house with a $5 bill he left on his kitchen counter.
                  Arson is frequently an economically-motivated crime, but
    in Jones, the Supreme Court interpreted the federal arson statute
    not    to    reach    the    immolation      of    an   individual     owner-occupied
    residence.        Justice Ginsburg wrote for a unanimous Court that,
    “[g]iven      the    concerns      brought    to    the   fore   in    Lopez,   it   is
    appropriate to avoid the constitutional question that would arise
    were    we   to     read    [the   federal    arson     statute]      to   render   ‘the
    traditionally local criminal conduct’ in which petitioner Jones
    engaged ‘a matter for federal law enforcement’” Jones v. United
    529 U.S. 848
    , 858, 
    120 S. Ct. 1912
                  Moving in exactly the opposite direction, some of our
    silent colleagues would agree that robbery is not an economic act,
          Justice Ginsburg further noted that in Lopez, “the Court
    stressed that the [regulated activity] was one of traditional
    state concern and that the legislation aimed at activity in which
    ‘neither the actors nor their conduct has a commercial
    character.” Jones, 529 U.S. at 858, 120 S. Ct. at 1911-12
    (quoting Lopez, 514 U.S. at 577, 580, 115 S. Ct. at 1638, 1640
    (Kennedy, J. concurring)). Additionally, Justice Stevens, in
    concurrence, stated the courts should be reluctant to “believe
    Congress intended to authorize federal intervention in local law
    enforcement in a marginal case such as this [arson of a private
    residence].” Id. at 859 (Stevens, J. concurring); see also
    Lopez, 514 U.S. at 561 n.3, 115 S. Ct. at 1631 n.3.
    but because the Hobbs Act has a jurisdictional hook encompassing
    any robbery that has “any effect” on interstate commerce, and
    because robbery is not “too attenuated” from commercial enterprise,
    Congress has power to proscribe all robberies under the Commerce
    Clause.    But the question these judges have not answered is how
    their rationale provides any limit at all to the prosecution of
    local crime by the federal government.       Under their position, a
    federal statute could extend to all murders and assaults which “in
    any way or degree affect commerce,” or a federal statute could
    criminalize all murders or assaults in which the victim is an
    income earner and which “in any way or degree affect commerce.”
    Aggregating such crimes would result in the requisite “substantial
    effect.”      Obviously, such “reasoning would allow Congress to
    regulate any crime as long as the nationwide, aggregated impact of
    that crime has substantial effects on employment, production,
    transit or    consumption.”   Morrison, 529 U.S. at 615, 120 S. Ct. at
    1752-53.     Morrison clearly rejected this view.
                 Some would affirm by crafting a narrower approach to the
    statute, arguing that the Hobbs Act is really concerned with
    convenience store robberies and the like, that is, with robberies
    of commercial establishments.97      This approach stalls, however,
    because it requires ignoring or judicially rewriting the statute;
          Advocates of this position would contend that Congress
    can, pursuant to its Commerce Clause power, regulate otherwise
    local criminal conduct that targets businesses, but not
    individuals. This “rule”, they could say, provides a clear,
    practical guideline for legislators who are considering federal
    criminal legislation as well as for federal prosecutors. Let us
    ignore that this “rule” amounts to judicial legislation – if the
    “rule” were so easily defensible, why is it not articulated as
    the position of the silent colleagues?
    the statute     is    not   restricted    to      robberies    of    businesses   or
    commercial enterprises, much less to convenience stores or any
    other specific victim.          It plainly and broadly applies to any
    robbery of any victim which “in any way or degree . . . affects
    [interstate] commerce.”          Further, in a purely result-oriented
    fashion, this position allows aggregation of all convenience store
    robberies, so that any of them – including a $1 robbery from a
    local store that buys $10 a month of out-of-state goods from a
    local wholesaler - may properly be prosecuted as a federal crime,
    but it excludes a $10,000 robbery of diamonds from a jewel merchant
    walking along a city street.         Congress was hardly so inconsistent.
                Alternatively,      instead      of    facing     the   hard    decision
    whether robbery is or is not an “economic activity,” some of our
    silent colleagues would argue that the Hobbs Act is “more closely
    related    to   economic    activity”     than     are    other     crimes,   hence,
    aggregation of robberies is permitted.              But, as the Court pointed
    out in Morrison, “in those cases where we have sustained regulation
    of   intrastate      activity   based    upon     the    activity’s    substantial
    effects on interstate commerce, the activity in question has been
    some sort of economic endeavor.”          Morrison, 529 U.S. at 611, 120 S.
    Ct. at 1750.      See also Morrison, Id. n.4 (“. . . in every case
    where we have sustained federal regulation under the aggregation
    principle in Wickard (citation omitted), the regulated activity was
    of   an   apparently    commercial      character.         See,     e.g.,   Lopez.”)
    (citation omitted) (emphasis added).                All of the Court’s prior
    aggregation holdings involved a regulation of the conduct of a
    wholly or partially commercial enterprise.                  The Hobbs Act is not
    such a statute.    This theory would extend aggregation to an area no
    Supreme Court holding has traversed.             Lopez and Morrison plainly
    point away from such an extension.
                Then   again,    some   of    our   colleagues   may   head   in   a
    different direction and dispute the premise that it has made a
    crucial difference to the Supreme Court whether aggregation was
    based on the status of the regulated activity as commercial or
    noncommercial.     From this standpoint, aggregation turns on the
    effects of the activity (such as robbery) and not on the inherent
    relation of the activity to interstate commerce.              But Lopez says
    exactly the opposite:         “[w]here economic activity substantially
    affects interstate commerce, legislation regulating that activity
    will be sustained.”         Lopez, 514 U.S. at 560, 115 S. Ct. at 1630
    (emphasis added).
                One distinctive approach would state that robbery is not
    an economic activity, but also would assert that Judge Garwood’s
    opinion has constructed a new test different from that in Lopez and
    Morrison.    Since no further explanation is offered, the source of
    the novelty would apparently be left to the reader’s imagination.
                Yet another conclusory position seems to assert that
    prosecutors have been convicting defendants under the Hobbs Act by
    aggregating the de minimis effects of local, intrastate robberies
    for forty years.       Of course, Lopez and Morrison had not been
    decided forty years ago.       Moreover, even though recent opinions of
    sister circuits may support this sort of an argument for stare
    decisis,      their   inadequate     reasoning     does   not    sustain    the
    constitutionality of the Hobbs Act as here applied.98
                Finally, some of our silent colleagues would go so far as
    to suggest that if the Supreme Court wanted to rein in application
    of the Hobbs Act, it has had ample opportunity to do so.                   This
    court should not take the initiative.               But this reasoning is
    backwards.     It is the lower courts’ duty faithfully to            apply the
    Supreme    Court’s    rulings   in   Lopez   and    Morrison    in   the   first
    instance.     We cannot ignore the Court’s decisions any more than we
    are permitted to second-guess its failure to grant certiorari on
    issues of interest to us.
                Despite their internal conflicts or incoherency, all of
    these arguments share a common thread.             None of them responds to
    the federalism concerns expressed so unmistakably in Lopez and
    Morrison.99    None of them sets any principled limit on the exercise
    of federal power to prosecute indisputably local crime.100             None of
          See United States v. Gray, 
    260 F.3d 1267
    , 1274-75 (11th
    Cir. 2001); United States v. Peterson, 
    236 F.3d 848
    , 852 (7th
    Cir. 2001); United States v. Malone, 
    222 F.3d 1286
    , 1294-95 (10th
    Cir. 2001). Several of the circuit courts have also drawn the
    patently arbitrary distinction between robberies of individuals
    and commercial establishments.
          To cite but one example: “Were the Federal Government to
    take over the regulation of entire areas of traditional state
    concern, areas having nothing to do with the regulation of
    commercial activities, the boundaries between the spheres of
    federal and state authority would blur and political
    responsibility would become illusory.” Morrison, 529 U.S. at
    611, 120 S. Ct at 1750, (quoting Lopez, 514 U.S. at 577, 115 S.
    Ct. at 1638 (Kennedy, J., concurring)).
           “If accepted, petitioners’ reasoning would allow Congress
    to regulate any crime as long as the nationwide, aggregated
    impact of that crime has substantial effects on employment,
    production, transit, or consumption. Indeed, if Congress may
    regulate gender-motivated violence, it would be able to regulate
    murder or any type of violence since gender-motivated violence,
    them respects that the words “commerce” and “economic” have fixed
    meanings, which do not conventionally include ordinary robbery.
              Chief Justice Rehnquist’s conclusion in Morrison was,
    however, tolerably clear to the lay reader:
                   We accordingly reject the argument that
              Congress may regulate noneconomic, violent
              criminal   conduct   based   solely  on   that
              conduct’s aggregate effect on interstate
              commerce.     The Constitution requires a
              distinction between what is truly national and
              what is truly local. In recognizing this fact
              we preserve one of the few principles that has
              been consistent since the [Commerce] Clause
              was adopted. The regulation and punishment of
              intrastate violence that is not directed at
              the instrumentalities, channels, or goods
              involved in interstate commerce has always
              been the province of the States. Indeed, we
              can think of no better example of the police
              power, which the Founders denied the National
              Government and reposed in the States, than the
              suppression of violent crime and vindication
              of its victims.”
    Morrison, 529 U.S. at 617, 120 S. Ct. at 1754.      (citations and
    footnote omitted).   We might have had a forthright and responsible
    debate, if our colleagues had adhered to their duty to express
    reasons why they have chosen to allow McFarland to be convicted of
    a federal crime.
    as a subset of all violent crime, is certain to have lesser
    economic impacts than the larger class of which it is a part.”
    Morrison, 529 U.S. at 615, 120 S. Ct. at 1752-53.