Opinion
09 CR 858 (SAS), 98280.
November 24, 2009
For the Government:, Kan Nawaday, Assistant United States Attorney, New York, NY.
For Defendant Diallo:, Annemarie Hassett, Esq., Matthew Tulchin, Esq., Goodwin Procter LLP, New York, NY.
OPINION AND ORDER
I. INTRODUCTION
Amadou Diallo is charged in a two-count indictment with conspiring to commit, and committing, a Hobbs Act robbery, i.e., a robbery that affects interstate commerce. Diallo has moved to dismiss the Indictment on the ground that the government's allegation of interference with interstate commerce is defective. Diallo also argues that the government should be limited at trial to proof of the allegation in the Indictment's narrowing "to wit" clause. For the reasons set forth below, the motion is denied.
II. BACKGROUND
On July 7, 2009, a one-count complaint charged Diallo with conspiring to commit a Hobbs Act robbery. The complaint alleged in relevant part that on or about December 4, 2007 Diallo, along with other co-conspirators, agreed to and did rob untaxed cigarettes contained in a van being driven by the victim.
See Complaint, United States v. Amadou Diallo, 09 Mag. 1568 (July 7, 2009) ¶¶ 3a, 3b, 3d, 3e, 3f.
On September 3, 2009, a federal grand jury returned a two-count indictment. Count One charges Diallo with conspiracy to commit a Hobbs Act robbery:
On or about December 4, 2007, in the Southern District of New York and elsewhere, AMADOU DIALLO, a/k/a "Money," the defendant, and others known and unknown, unlawfully, willfully and knowingly did combine, conspire, confederate, and agree together and with each other to commit robbery, as that term is defined in Title 18, United States Code, Section 1951(b)(1), and would and did thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce, as that term is defined in Title 18, United States Code, Section 1951(b)(3), to wit, DIALLO agreed with others, known and unknown, to commit a robbery of an individual driving a vehicle which contained cartons of cigarettes in the vicinity of Madison Avenue and East 138th Street, New York, New York.
Indictment, United States v. Amadou Diallo, 09 Cr. 858 (Sept. 3, 2009) ¶ 1 (citing 18 U.S.C. § 1951; emphasis added).
Count Two charges Diallo with commission of a Hobbs Act robbery:
On or about December 4, 2007, in the Southern District of New York, AMADOU DIALLO, the defendant, and others known and unknown, unlawfully, willfully and knowingly did commit robbery, as that term is defined in Title 18, United States Code, Section 1951(b)(1), and did thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce, as that term is defined in Title 18, United States Code, Section 1951(b)(3), to wit, DIALLO and others, known and unknown, carjacked and robbed an individual driving a vehicle which contained cartons of cigarettes in the vicinity of Madison Avenue and East 138th Street, New York, New York.
Id. ¶ 2 (citing 18 U.S.C. §§ 1951 2; emphasis added).
III. DISCUSSION
The Hobbs Act provides that "[w]hoever 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, imprisoned, or both.
The Hobbs Act reaches the full scope of the Commerce Clause of the United States Constitution. "Since the Act prohibits the specified conduct if it affects commerce 'in any way or degree,' it is well established that the burden of proving such a nexus is 'de minimis.'" "'The jurisdictional requirement of the Hobbs Act may be satisfied by a showing of a very slight effect on interstate commerce. . . . Even a potential or subtle effect on commerce will suffice.'" That said, in a Hobbs Act prosecution, proof that "interstate commerce [wa]s affected is critical since the Federal Government's jurisdiction over this crime rests only on that interference." "The jurisdictional nexus transforms the quintessential state crime[] of robbery . . . into [a] federal crime[]."
See Stirone v. United States, 361 U.S. 212, 215 (1960); United States v. Farrish, 122 F.3d 146, 148 (2d Cir. 1997).
United States v. Arena, 180 F.3d 380, 389-90 (2d Cir. 1999) (quoting 18 U.S.C. § 1951(a) and Farrish, 122 F.3d at 148).
Id. (quoting United States v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981)).
Stirone, 361 U.S. at 218.
United States v. Perrotta, 313 F.3d 33, 37 (2d Cir. 2002).
A. The Indictment Is Valid and Sufficient
Diallo contends that the Indictment should be dismissed because the government failed to plead sufficiently the interstate nexus element of the charges. "It is well settled that 'an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" An indictment must "'charge[] a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.'" "Nevertheless, 'an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'"
United States v. Alphonso, 143 F.3d 772, 776 (2d Cir. 1998) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). Accord Fed.R.Crim.P. 7(c)(1) ("[T]he indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged. . . .").
Similar to the standard governing the sufficiency of a criminal indictment, "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957); emphasis added). Despite the similarity in the two rules, after the Supreme Court's recent landmark decisions in Twombly and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), a civil plaintiff's burden to survive a motion to dismiss appears to be higher than the government's burden to survive a motion to dismiss a criminal indictment. "To survive a motion to dismiss, a [civil] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570; emphasis added). By contrast, in the criminal context, "'an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" Alphonso, 143 F.3d at 776 (quoting United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992)). This observation of course has no bearing on any criminal case unless the Supreme Court decides to override the Federal Rules of Criminal Procedure as it appears to have done on the civil side.
Alphonso, 143 F.3d at 776 (quoting Stavroulakis, 952 F.2d at 693).
Id. (quoting Stavroulakis, 952 F.3d at 693).
The Second Circuit's decision in United States v. Alphonso is instructive. In Alphonso, the court reversed a pretrial dismissal of an indictment for failing to satisfy the jurisdictional requirement of the Hobbs Act, and remanded the case with instructions to reinstate the indictment in its entirety. Specifically, the Second Circuit held that "in the circumstances presented a pretrial ruling on the sufficiency of the evidence with respect to the Hobbs Act's jurisdictional element was not appropriate[.]" In so holding, the court determined that the indictment was sufficient, utilizing the permissive standard described above. Significantly, although "[t]he indictment [did] not specify what it was that defendants allegedly conspired to steal or precisely how the conspiracy would have affected interstate commerce[,]" the court held that the jurisdictional allegation was sound: "We have never held that an indictment alleging a violation of the Hobbs Act must specify the precise nature of the effect upon interstate commerce that the government intends to prove at trial, and we decline to do so now." The court further explained that "[i]n the case of a Hobbs Act prosecution, the requirement of an effect on interstate commerce is itself an element of the offense charged" that "ordinarily . . . is not appropriately decided on a motion to dismiss" and that "should be determined at trial." Only in the limited circumstance where the government has made a proffer of the evidence it intends to introduce at trial may the court make a pretrial determination as to whether the evidence is sufficient to demonstrate an effect on interstate commerce.
See id.
Id. at 778.
See id. at 776.
Id.
Id. at 777 (quotation marks omitted).
See id. at 776-77.
In light of Alphonso, the Indictment here clearly satisfies the "basic pleading requirements." The Indictment contains the elements of the offenses charged and fairly informs Diallo of the charges against which he must defend. Count One properly pleads a conspiracy to violate the Hobbs Act. That count charges that Diallo conspired with others to commit a robbery as that term is defined in the Hobbs Act. Count One then tracks the statutory language requiring an effect on interstate commerce, and alleges that by his conduct, Diallo did "thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce." Similarly, Count Two properly pleads a substantive violation of the Hobbs Act. Count Two tracks the statutory language, and alleges that Diallo committed a robbery, as that term is defined in the Hobbs Act, and by his conduct did "thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce." Thus, the Indictment charges every element of a Hobbs Act conspiracy in Count One — an unlawful agreement to commit a robbery that affects interstate commerce — and of a Hobbs Act robbery in Count Two — the commission of a robbery that affects interstate commerce.
Diallo's attempts to distinguish Alphonso are unpersuasive. See Memorandum of Law in Support of Defendant Amadou Diallo's Motion for Dismissal of the Indictment ("Def. Mem.") at 12; Reply Memorandum in Further Support of Defendant Amadou Diallo's Motion for Dismissal of the Indictment ("Def. Reply") at 7. It is irrelevant that the district court there dismissed the indictment sua sponte. Nor is it of any moment that Diallo argues that the jurisdictional allegation in the Indictment limits the jurisdictional proof at trial. See infra Part III.B. Under Alphonso, and because the government has yet to make a full proffer of its evidence of a nexus between the alleged criminal conduct and interstate commerce, this Court's task is simply to determine whether the Indictment is sufficient.
Alphonso, 143 F.3d at 776.
Indictment ¶ 1.
Id. ¶ 2.
The Indictment also sufficiently specifies the nature of the alleged criminal conduct to enable Diallo to defend against the charges and to evaluate any Double Jeopardy issues. Both Counts One and Two charge that on or about a specific date (December 4, 2007) and in the vicinity of a specific place (Madison Avenue and East 138th Street, New York, New York), Diallo conspired to commit a robbery and did commit a robbery. The "to wit" clauses further define the charges. Given the specificity of the charges, Diallo is fully and adequately informed by the Indictment of the charges he faces.
Diallo argues that the Indictment must be dismissed because it "fails to allege facts and circumstances that could establish that the requisite effect on interstate commerce is reasonably probable in this case." As conceived by Diallo, "the issue of jurisdiction [here] presents a question of law: whether, as the Indictment alleges, a single instance of robbery, or a conspiracy to rob on a single occasion, of an unspecified amount of cigarettes from an individual driving a vehicle on a New York City street would have at least a de minimis impact on interstate commerce." Diallo asserts that "a more stringent analysis of the basis of jurisdiction applies to alleged Hobbs Act violations against individuals." Citing principally to the Fifth Circuit's decision in United States v. Collins, Diallo argues:
[E]ven if true, the alleged conduct does not confer jurisdiction because the law provides that the robbery of an individual may violate the Hobbs Act only if (1) the acts depleted assets of any individual directly and customarily engaged in interstate commerce, (2) the number of individuals victimized or the amount of money at stake was so large that there would be some cumulative effect on interstate commerce, or (3) the acts caused or created the likelihood that the individual would deplete the assets of a business engaged in interstate commerce.
Def. Mem. at 8.
Id. at 7.
Id. at 4.
See 40 F.3d 95 (5th Cir. 1994).
Def. Reply at 2-3. Accord Def. Mem. at 6.
Diallo correctly notes that the Indictment lacks specifics such as the number of cigarettes in the van, whether the victim was engaging in interstate commerce, and whether the cigarettes were goods being used in a business owned or operated by the victim. However, an indictment is not required to include this information, for "'an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" I have already explained that the Indictment satisfies the applicable standard. Of course, whether the evidence at trial establishes the requisite nexus to interstate commerce — among the other elements of the charged offenses — remains to be seen. In other words, it is only appropriate for Diallo to challenge the government's showing of the jurisdictional nexus after the government has put forth all of its evidence related to this element. In this regard, the question of whether a more stringent analysis of jurisdiction is appropriate here cannot yet be framed or answered.
See Def. Mem. at 8-9.
Alphonso, 143 F.3d at 776 (quoting Stavroulakis, 952 F.3d at 693).
Citing to the Supreme Court's opinion in Russell v. United States, Diallo argues that the prosecution is required to do more than simply track the language of the statute. See Def. Reply at 5-6. In Russell, the defendants were charged with refusing to answer questions pertinent to the subject under inquiry before a congressional subcommittee, but the indictments did not specify the subject under inquiry. See 369 U.S. 749, 752-53 (1962). In reversing the convictions, the Court held that the indictments were insufficient: "What the subject actually was . . . is central to every prosecution under the statute [at issue]. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute." Id. at 764. Russell explained that the problem with the generic statutory language was that it did not appraise the defendants (or the courts) with reasonable certainty of the nature of the accusations. See id. at 765-69.
Russell is inapposite to the issue at hand. First, Diallo has not pointed to, and the Court has not found, any case indicating that the jurisdictional hook in the Hobbs Act is a generic term that requires the government to plead with particularity the interstate commerce nexus. In fact, Alphonso states otherwise. See supra note 12 and accompanying text. Second, the Indictment does inform Diallo with reasonable certainty of the charges.
See, e.g., United States v. Scott, 624 F. Supp. 2d 279, 290 (S.D.N.Y. 2008) (rejecting defendant's motion to dismiss indictment for failure to provide facts showing how robbery affected interstate commerce and holding that "[t]he Government does not carry that burden at this stage"); United States v. Remire, 400 F. Supp. 2d 627, 630 (S.D.N.Y. 2005) ("[W]hether the government established the requisite jurisdictional nexus for a Hobbs Act violation is a fact-based inquiry that can only be resolved after the government has put forth all of its evidence related to jurisdiction."); United States v. Luguis, 166 F. Supp. 2d 776, 779 (S.D.N.Y. 2001) (denying motion to dismiss because "the Court need not reach the question whether the Hobbs Act jurisdictional requirement has been satisfied. The appropriate time for defendant's Hobbs Act motion is at the close of the government's case-in-chief or of all the evidence or after the jury's verdict").
B. Proof at Trial
Diallo argues that the proof at trial must conform to the Indictment and, specifically, to the narrowing "to wit" clauses. According to Diallo, "[t]he prosecution is so limited at trial because to do otherwise would be a constructive amendment of the Indictment." "An indictment has been constructively amended when the trial evidence or the jury charge operates to broaden the possible bases for conviction from that which appeared in the indictment." "Alternatively, a variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment." A motion under either theory involves a review of the evidence presented at trial. Therefore, like Diallo's challenge to the jurisdictional element of the Hobbs Act charges, his claim of a constructive amendment is premature.
Def. Mem. at 11.
United States v. Rigas, 490 F.3d 208, 225 (2d Cir. 2008) (quotation marks and alterations omitted).
Id. (quotation marks and alterations omitted).
See United States v. Vondette, 248 F. Supp. 2d 149, 163 (E.D.N.Y. 2001).
IV. CONCLUSION
For the reasons set forth above, Diallo's motion to dismiss the Indictment is denied. The Clerk of the Court is directed to close this motion (document number 11). A conference is scheduled for December 8, 2009 at 4:00 p.m.
SO ORDERED: