Opinion
CRIMINAL NO. 3 99CR244(JBA)
September 7, 2000
MEMORANDUM OF DECISION
At the close of the Government's case at trial, defendant Jerome Suggs orally moved for judgment of acquittal on both counts of the Second Superseding Indictment, on the grounds that the Government's evidence was insufficient to prove the essential elements of the offenses charged. The Court reserved ruling, and the jury found Suggs guilty on Count One, interfering with or attempting to interfere with interstate commerce in violation of 18 U.S.C. § 1951, and Count Two, using or carrying a firearm in the commission of the crime of violence charged in Count One in violation of 18 U.S.C. § 924(c)(1). After the verdict, the defendant renewed his oral Motion for Judgment of Acquittal with a supporting brief, again based on insufficiency of the Government's evidence.
Discussion I. Standard
Rule 29(a) of the Federal Rules of Criminal Procedure provides that:
The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.
In considering a motion under this Rule, the Court must determine whether a reasonable person might fairly conclude, based on the evidence presented at trial, that the defendant was guilty beyond a reasonable doubt. See United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984). In doing so, the court is required to resolve all reasonable inferences in favor of the prosecution, and must view the evidence taken as a whole in a light most favorable to the government with respect to each element of the offenses charged. See id. at 865, citing United States v. Rodriguez, 702 F.2d 38, 41 (2d Cir. 1983). Further, pieces of evidence must be viewed not in isolation, but in conjunction, and the conviction must be upheld where the inferences reasonably drawn from the record as a whole support a jury's conclusion that the defendant was guilty beyond a reasonable doubt. See United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994). Given the standard, a defendant must persuade the court that, "viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir.), cert. denied, 520 U.S. 1220 (1997). "In challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden." Matthews, 20 F.3d at 548 (2d Cir. 1994). Moreover, "[t]he court should not substitute its own determination of the credibility of witnesses, the weight of the evidence and the reasonable inferences to be drawn for that of the jury." Mariani, 725 F.2d at 865.
II. Hobbs Act Violation
A. Elements of the Offense
The Second Superseding Indictment alleged that the Mobil Mini Mart was a business which affects interstate commerce, and that on July 14, 1999 defendant Suggs:
did unlawfully obstruct, delay and affect, and attempt to obstruct, delay and affect, commerce . . . in that the defendant Jerome Suggs, a/k/a "Vincent Darden," did unlawfully take and obtain personal property consisting of United States currency from and in the presence of an employee of the Mobil Mini Mart. . . .
The Court instructed the jury that this indictment required the Government to beyond a reasonable doubt the following elements:
(1) that, on or about July 14, 1999, Jerome Suggs knowingly took personal property, consisting of United States currency, from the presence of an employee of the Mobil Mini Mart; and
(2) that Jerome Suggs took the personal property against the employee's will by means of actual and threatened force, violence and fear of injury by displaying, brandishing and discharging a firearm; and
(3) that as a result of the defendant's actions, interstate commerce and the movement of articles and commodities in interstate commerce was obstructed, delayed, or affected in any way or degree.
Doc. # 54, p. 21. The defendant now challenges the sufficiency of the Government's proof as to the first and third elements, contending that the evidence was inadequate to show beyond a reasonable doubt that personal property consisting of currency was taken, and/or that interstate commerce was obstructed to any degree by the defendant's actions.
B. First Element — Unlawful Taking of Personal Property
At trial, both Vinay Kumar, the clerk who was on duty at the Mobil Mini Mart the morning of the robbery, and Mahmood Charnia, the store's manager, testified that the cash drawer containing proceeds from the sale of lottery tickets was taken during the robbery. The Court posed the question to both the defendant and the Government whether theft of state lottery proceeds could be considered to have affected interstate commerce, as required by the Hobbs Act, given that the lottery is run by the state of Connecticut for the purpose of generating funds for the public good of residents of the state. See Conn. Gen. Stat. § 12-806. Defendant does not contend, however, that the indictment requires proof that the theft of currency itself affected interstate commerce, as recent Second Circuit case law makes clear that the Government need only prove that there was a taking of currency, and that the taking, indirectly or potentially, affected the activities of the Mobil Mini Mart in interstate commerce. See United States v. Shareef, 190 F.3d 71 (2d Cir. 1999) (in case involving extortion of wages from New York resident-employees of defendant subcontractor, requisite affect on interstate commerce was shown by evidence that the underpayment of wages by subcontractor had led to a Department of Labor investigation of the general contractor, and that such an investigation could impede the business of the general contractor in other states). Accordingly, the fact that the stolen money consisted solely of Connecticut lottery proceeds is irrelevant to the analysis.
Nonetheless, defendant contends that the Government's evidence regarding the taking of personal property was insufficient, as it did not demonstrate that any cash had been in the lottery drawer which could be taken, as required to prove the specific allegations in the Second Superseding Indictment. The Government's proof that money was taken consisted of the testimony of Mr. Kumar and Mr. Charnia. According to Mr. Charnia, approximately $30-40 was in the drawer at the time of the robbery, although he could only provide an estimate of the amount, as the lottery drawer itself was never recovered.
Defendant argues that because the evidence established that the lotto drawing takes place on Tuesday night, that all the lotto proceeds from the Tuesday before the Wednesday morning robbery were accounted for, and that Charnia had no personal knowledge of whether any customers came to buy lotto tickets after the drawing on the night before the robbery, Mr. Charnia's estimation that $30-40 must have been in the missing drawer when it was taken amounts to impermissible speculation. Defendant points to the fact that Vinay Kumar did not testify that he made any lotto sales during his night shift before the robbery, nor that any currency was in the lotto drawer at the time of the robbery, but instead merely testified to the general practice of placing proceeds from lotto ticket sales in the lotto register drawer. According to defendant, this evidence does not permit an inference that there was currency in the drawer at 7:30 a. m. on Wednesday, July 14 from sales overnight during Mr. Kumar's shift.
While the evidence presented at trial was certainly not unequivocal or capable of only one interpretation, it did lay a foundation from which the jury could draw a logical conclusion that currency was stolen from the Mobil Mini Mart. According to Mr. Charnia's testimony, he did not guess as to the amount in the drawer; rather, he reviewed the list of lotto ticket numbers that had been sold by the time the safe was closed for the day, at approximately twelve or one o'clock a. m., and compared the numbers on that list to the unsold tickets to determine that some tickets were missing, and thus must have been sold between the closing of the safe and the robbery. When considered in conjunction with Mr. Kumar's testimony that proceeds from the sale of lottery tickets went into the lottery register, the evidence on this element, while limited, was adequate to allow a reasonable fact-finder to infer beyond a reasonable doubt that some currency was in the lottery proceeds drawer at the time of the robbery. Given that the Court must view the evidence in the light most favorable to the Government, and credit every logical inference that could have been drawn in its favor, see United States v. Tubol, 191 F.3d 88, 97 (2d Cir. 1999), the evidence on the taking of currency was sufficient, and defendant's motion on these grounds is accordingly DENIED.
B. Indirect or Potential Affect on Interstate Commerce
Suggs next argues that the Government failed to establish beyond a reasonable doubt that the robbery at the Mobil Mini Mart had a potential or indirect effect on interstate commerce, as required by the jurisdictional prong of the Hobbs Act. As the Court charged the jury, to meet this prong the Government had to prove that interstate commerce was obstructed, delayed, or affected in any way or degree. See 18 U.S.C. § 1951(a).
The evidence at trial regarding the nexus to interstate commerce disclosed the following. As a result of the robbery and firearm discharge, the Mobil Mini Mart was closed for 3-4 hours while police conducted their investigation. The officer who secured the scene testified that customers who sought to enter the Mobil Mini Mart during the investigation were turned away. According to Mr. Charnia, who compared the store's total gross sales on each day during the week of the robbery, the Mini Mart lost an estimated $300-400 on July 14th as a result of the closure. A portion of this money would have been used to purchase the stores two top-selling products — gasoline and cigarettes. A representative of the Mini Mart's gasoline supplier, Alden Associates, testified that there are no oil refineries in the state of Connecticut, and that the gasoline merely gets to Connecticut Mobil stations through an in-state "middle-man" who arranges its delivery. The same delivery procedure applies to the Mobil Mart's cigarettes — they are produced out of state but go through an in-state supplier, Montano Cigarette, Candy and Tobacco Inc., via a Massachusetts distributor.
An agent of the Bureau of Alcohol, Tobacco and Firearms, testified that he conducted three random surveys of the license plates of the cars that entered the Mobil Mini Mart parking lot. On December 29, 1999, over the course of one hour and fifteen minutes, 9.5% of the cars either filling up with gasoline or whose occupants entered the store, had out of state plates; on February 11, 2000, between 7:30 a. m. and 9:50 a.m., 6% of the cars had out of state plates; and, on March 3, 2000, there were no cars with out of state plates but a truck with Massachusetts plates delivered a product. Finally, both an investigating officer and Mr. Charnia testified that approximately $400-500 in cash was in the store at the time of the robbery and could have been stolen, had the perpetrator not beaten a hasty retreat after Mr. Kumar escaped and called the police
As the Second Circuit recently noted, the Hobbs Act "speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce." United States v. Arena, 180 F.3d 380, 389 (2d Cir. 1999) (internal quotations omitted). Accordingly, the burden of proving such a nexus is "de minimis." Shareef, 190 F.3d at 74. The Government contends that this de minimis burden has been satisfied by evidence demonstrating that the Mini Mart was closed for several hours and potential customers were turned away while the robbery was being investigated. According to the Government, the jury could have reasonably inferred from the evidence that the Mobil Mini Mart routinely served out of state customers who were directly prevented from purchasing items during those hours the store was closed. The loss of business resulting from the closure, the Government also argues, depleted the assets of the Mobil Mini Mart by reducing the funds available to purchase for resale its two primary products-gasoline, refined out of state, and cigarettes, manufactured out of state. Further, the currency that was left in the store could have been taken in the robbery if it had been found, the Government contends, thus proving the indictment's allegation charging that Mr. Suggs "attempted" to interfere with interstate commerce. Had this money been stolen, the argument continues, the Mini Mart would have suffered an even greater detriment to its ability to purchase products in interstate commerce.
In the Court's view, evidence that a convenience store robbery resulted in a store closure that turned away an undetermined number of potential customers with undisclosed purchasing intentions and a direct loss of at the most $40 and an indirect loss of $300-400, is a slender thread tying the Mobil Mini Mart robbery to interstate commerce. However, the Second Circuit has reminded district courts that "the Hobbs Act regulates activities which, in the aggregate, have a substantial effect on interstate commerce; hence the `de minimis character of the individual instances arising under [the] statute is of no consequence.'" United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997), quoting United States v. Lopez, 514 U.S. 549, 558 (1995). In another post-Lopez decision, the Second Circuit affirmed a Hobbs Act conviction for car theft from a parking garage, where the evidence showed that approximately half of the cars parked overnight in the garage bore out-of-state license plates, and the garage was located near major access routes for cars crossing state lines. United States v. Farrish, 122 F.3d 146 (2d Cir. 1997). The court concluded that a jury could have reasonably inferred that car thefts from such a garage would have discouraged interstate travel, even though there was no evidence that the stolen cars themselves were from out of state. Id. at 149. The court reiterated that "[t]he jurisdictional element 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." Id. at 148 (internal citations omitted).
The Second Circuit has also applied the so-called "depletion of assets" theory to find the requisite link between the crime and interstate commerce. Under this theory, where the defendant's illegal acts deplete his victims' assets, thereby affecting the victims' ability to purchase commodities that travel in interstate commerce, the interstate commerce element of the Hobbs Act may be satisfied. See United States v. Jones, 30 F.3d 276 (2d Cir. 1994) (funds stolen from undercover officer and intended to purchase cocaine traveling in interstate commerce established sufficient nexus with interstate commerce). In an earlier case, the Second Circuit accepted the depletion-of-assets theory, but noted that "[t]he victim's purchase of interstate goods, however, must be of a continuing nature or the relationship between the extortion and any interstate commerce becomes merely conjectural," and that the cases in which the theory has been successfully applied "all involve ongoing establishments with recurring shipments from out-of-state." United States v. Merolla, 523 F.2d 51, 54 (2d Cir. 1975). Such criteria are clearly met in the present case. While the Second Circuit has not addressed a situation where a "depletion of assets" resulted from a store closure during a robbery investigation, rather than from the robbery itself, the Eleventh Circuit has found that a closing during a criminal investigation and a loss of $1,000-1,500 in business was a sufficient depletion to satisfy the Hobbs Act "minimal effect" jurisdictional requirement. United States v. Guerra, 164 F.3d 1358, 1360 (11th Cir. 1999).
Thus, the Court concludes that the evidence in the present case was sufficient to show such a minimal effect on interstate commerce. During the investigation, the store was closed to customers, precluding their purchases and resulting in a loss of funds to purchase additional products traveling in interstate commerce. In addition, the jury could have reasonably inferred that at least some of those customers who were turned away were seeking to buy gasoline and/or cigarettes, the products with the greatest sales volume at the Mini Mart, and which necessarily traveled in interstate commerce. The Government introduced evidence regarding the loss in sales resulting from the store closure, the number of out-of-state customers on three separate occasions, and the origins of the primary products sold at the Mini Mart. Such evidence could allow the jury to reasonably infer that the requisite nexus existed. The issue of the weight of the evidence is a matter for the jury, and as long as there was sufficient evidence on which the jury could base its conclusion that interstate commerce was affected, the Court will not disturb the verdict. This is not a case where the Government based its jurisdictional argument on surmise or "leaps of faith." See United States v. Pinckney, 85 F.3d 4, 7 (2d Cir. 1996) (insufficient evidence on jurisdictional prong of Hobbs Act, where evidence only showed that stolen car parts were sold to local body shops; rejecting Government's contention that car parts must have "inevitably" entered interstate commerce from chop shop in Brooklyn, New York).
Although defendant contends that these products were obtained from local vendors, he has cited no cases where the interstate nature of a product depended on the last stop in the distribution chain, rather than the state of origin.
Although the connection to interstate commerce is slight indeed, application of controlling Second Circuit precedent requires the conclusion that the necessary "minimal" or "very slight" effect on interstate commerce has been established by the evidence here. See Jones, 30 F.3d at 285; see also Farrish, 122 F.3d at 148. While the courts have recently reminded Congress that its power to regulate pursuant to its Commerce Clause power does have some "judicially enforceable boundaries," see United States v. Morrison, 120 S. Ct. 1740, 1749, n. 3, the jurisdictional element of the Hobbs Act has allowed it to survive every post-Lopez challenge to its constitutionality. See Farrish, 122 F.3d at 148 (holding that Lopez did not raise the jurisdictional hurdle for bringing a Hobbs Act prosecution, and noting sister Circuits that have reached the same conclusion). Mr. Suggs need not have intended to affect interstate commerce in any way, and the independently inconsequential impact of his individual actions is "not enough to remove him from the scope of federal regulation where . . . his contribution, taken together with that of many others similarly situated, is far from trivial." Leslie, 103 F.3d at 1099, quoting Wickard v. Filburn, 317 U.S. 111, 128 (1942).
III. CONCLUSION
The jury had sufficient evidence on which to base its verdict of guilty on Count One of the Second Superseding Indictment (Hobbs Act Violation). As Count Two required a preliminary finding by the jury that the defendant had committed the crime of violence alleged in Count One, defendant's arguments regarding the evidentiary sufficiency of the Government's proof on Count Two were predicated on the same contentions the Court has rejected above. Accordingly, the defendant's oral motion for Judgment of Acquittal is DENIED.
IT IS SO ORDERED.