APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Crim. Nos. 00-cr-00291-2, 00-cr-00291-1, and 00-cr-00291-3 District Judge: The Honorable Robert F. Kelly
Before: Roth, Barry, and Fuentes, Circuit Judges
The opinion of the court was delivered by: Barry, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) March 4, 2003
Between February 7, 2000 and February 26, 2000, on a total of nine occasions, one or more of the appellants robbed or attempted to rob six businesses in Philadelphia and one business in New Jersey, all at gunpoint. Five of the businesses in Philadelphia were owned and staffed by Korean women and operated as houses of prostitution, health spas, or massage parlors. The sixth Philadelphia business was engaged in the scrap metal business and the business in New Jersey was a restaurant and bar. On December 12, 2000, following a jury trial, Joel C. Casa, Adam Bentley Clausen and Kenneth Scott Sternberg, were each found guilty of one or more counts of conspiracy to commit a Hobbs Act violation, of Hobbs Act robbery or attempted robbery, and of use of a firearm during and in relation to a crime of violence. They now appeal.
Appellants argue that the District Court erred when it instructed the jury that the Hobbs Act applies to robberies which have only a de minimis effect on interstate commerce, and argue as well that insufficient evidence was presented at trial to enable a reasonable juror to conclude that each charged robbery had the requisite impact on interstate commerce. They also challenge the admission of various eyewitnesses' identification testimony, and Casa and Sternberg argue that their attorneys were ineffective. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and will affirm.
Appellants argue that the District Court erred when it instructed the jury that all it needed to find for purposes of the Hobbs Act was that each robbery had a minimal effect on interstate commerce.*fn1 Essentially, they argue that the Hobbs Act is unconstitutional as applied to a broad category of cases, including this one, in which the effect of any given robbery on interstate commerce was minimal.
In 1989, we held that the Hobbs Act is constitutional as applied to crimes which have only a de minimis impact on interstate commerce. See United States v. Traitz, 871 F.2d 368, 390 (3d Cir. 1989). Appellants argue that the holding in Traitz is no longer good law in light of United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), with the import of those cases purportedly being that the Hobbs Act can only be constitutionally applied to crimes which have a substantial effect on interstate commerce.
In Lopez, which involved a challenge to the Gun-Free School Zones Act, the Supreme Court held that there are "three broad categories of activity" that Congress may regulate under the Commerce Clause: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) those activities having a substantial relation to or that substantially affect interstate commerce. The Lopez Court concluded that the possession of a gun in a local school zone, the activity at issue in that case, did not fall into the first or second categories. As a result, Congress was only empowered to regulate that type of gun possession if it had a substantial relation to interstate commerce, which it did not. See also Morrison (crimes of violence motivated by gender lack a substantial relation to interstate commerce).
The Lopez Court distinguished the Gun-Free School Zones Act from a federal gun possession statute, which had an "express jurisdictional element" that limited its "reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." Lopez, 514 U.S. at 562. Like the federal gun possession statute, the Hobbs Act contains a "jurisdictional element" - that is, it only applies to crimes which "obstruct, delay, or affect commerce or the movement of any article or commodity in commerce." 28 U.S.C. § 1951(a).
Even after Lopez, every Court of Appeals to have addressed the issue has held that the Hobbs Act may constitutionally be applied to crimes which do not have a substantial effect on interstate commerce. Some of those courts have concluded that Hobbs Act crimes fall into the first and/or second of the three Lopez categories. Under this formulation, a de minimis effect on commerce is sufficient because the Hobbs Act's jurisdictional element ensures that the Act is only applied to crimes whose impact crosses state lines. A substantial effect would only be required if the crimes proscribed were purely intrastate. United States v. Harrington, 108 F.3d 1460, 1467 (D.C. Cir. 1997)(substantial effects test is inapplicable to interstate activities, a category which includes crimes with a concrete effect on interstate commerce); United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir. 1997)(same); United States v. Farrish, 122 F.3d 146, 148 (2d Cir. 1997)(same); United States v. Atcheson, 94 F.3d 1237, 1241-1243 (9th Cir. 1996)(same); United States v. Farmer, 73 F.3d 836, 843 (8th Cir. 1996)(Lopez has no applicability to commercial establishments). See also Morrison, 529 U.S. at 612 ("[A] jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce.").
Other courts have found that Hobbs Act robberies fall into the third Lopez category. Because of the Hobbs Act's jurisdictional element, "[i]t follows with the inexorable logic of the multiplication table that the cumulative result of many Hobbs Act violations is a substantial effect upon interstate commerce," and that substantial effect empowers Congress to regulate pursuant to the Commerce Clause. United States v. Robinson, 119 F. 3d 1205, 1215 (5th Cir. 1997). In any individual case, proof of a de minimis effect on interstate commerce is all that is required. Robinson, 119 F. 3d at 1212 (to the extent that Lopez establishes a substantiality requirement, it applies to the class of cases prosecuted in the aggregate and proof of a slight effect suffices in any individual case); United States v. Smith, 182 F.3d 452, 456 (6th Cir. 1999)(Lopez establishes a ...