Interesting 1983 Case from CA1
UPDATED - The Court's 2004 Term

Hobbs Act and Interstate Commerce

In California, if you steal $522, it's called grand theft.  But if you tick off the wrong person, it's called a violation of the Hobbs Act.  In a First Circuit Hobbs Act opinion, United States v. Brennick, No. 04-1419, Slip op. at 8-9 (1st Cir. Apr. 26, 2005) the court writes:

Brennick next contends that the evidence was insufficient to establish that the robbery affected interstate commerce. He argues that the $522.37 taken from a store with gross sales for the month of $8.5 million was insufficient to cause the kind of effect on commerce necessary to trigger the applicability of the Hobbs Act.

In United States v. Capozzi, considering the effect of United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), we reaffirmed that, to establish the requisite effect on interstate commerce for a Hobbs Act violation, the government need show only that the conduct created a “realistic probability” of a minimal effect on interstate commerce. Capozzi, 347 F.3d 327, 335 (1st Cir. 2003). The Concord Wal-Mart store manager testified at trial that if the stolen money had not been taken, it would have been reinvested in the purchase of goods manufactured outside the state. [fn2]  That evidence sufficed to show the necessary effect on commerce.

[fn2] The government’s brief, which consisted largely of conclusory assertions, was not as helpful as it might have been. In response to Brennick’s contention that the evidence failed to show a sufficient effect on interstate commerce, the brief neglects to tell us what evidence was introduced to show the effect on commerce. It asserts that “courts of appeals, including this one, have repeatedly and uniformly upheld Hobbs Act convictions where the victim of the robbery was a commercial establishment that regularly purchased goods or sent profits across state lines.” The brief, however, fails to cite to any cases in support of the proposition.

Its discussion of Brennick’s contention of misrepresentation of the evidence in the grand jury fails to discuss or even mention any of the instances of misrepresentation, although as noted above, they were not insignificant. The “Statement of the Facts” was copied almost verbatim from a pretrial district court order, including a footnote stating: “As an evidentiary hearing on this motion was not held, the recitation of facts is largely derived from the police report.” Needless to say, because in the intervening time since the district court’s order there had been a trial, the government had access to a better source of facts than either a police report or a pretrial order of the district court. We might, of course, have declined to consider contentions not adequately presented in a party’s brief. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In future cases, where the answer to the point in issue is less clear, we may well exercise our discretionary authority differently.

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