Appeal from convictions for Hobbs Act robbery and Hobbs Act conspiracy, challenging jury instructions that robbery of illegal drug proceeds, if proven, satisfied the interstate commerce element of the Hobbs Act as a matter of law. See 18 U.S.C. §§ 1951, 1952. Affirmed in part, reversed and remanded in part. Cabranes, J., dissenting in part and concurring in part.
The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge
Before: CABRANES, KATZMANN, AND B.D. PARKER, Circuit Judges.
Defendants-appellants Derrilyn Needham, Javier Robles, and Corey Thompson appeal from judgments of conviction in the United States District Court for the Southern District of New York (Lynch, J.) for Hobbs Act robbery and related offenses. See 18 U.S.C. §§ 1951, 1952. They challenge their convictions based on an instruction that foreclosed the jury's consideration of an essential jurisdictional element of Hobbs Act robbery: whether the robberies, which targeted the proceeds of drug trafficking, affected interstate commerce.
This case presents a situation that is highly unlikely to recur, as it arises from Hobbs Act convictions obtained while the law of this Circuit was in flux. After defendants' trial, our Court held in United States v. Parkes, 497 F.3d 220 (2d Cir. 2007), that the jurisdictional element of the Hobbs Act must be found by a jury beyond a reasonable doubt, even where the underlying robbery involved illegal narcotics. Under this supervening rule, the district court's jury instructions were erroneous. But this error affects only those counts of conviction for which we are unable to identify evidence in the record satisfying the interstate element beyond a reasonable doubt. Cf. Neder v. United States, Parkes, w 1 e note, was approved unanimously by the active members of this Court through our "mini en banc" process, because it represented a change in controlling law at the time. See 497 F.3d at 230 n.7. 527 U.S. 1 (1999). Accordingly, we find that the interstate element was proven with respect to the defendants' conspiracy convictions, which encompassed cocaine and heroin robberies - substances that necessarily originate out-of-state. We cannot conclude the same, however, for the defendants' substantive robbery convictions. These individual robberies involved only the proceeds of marijuana trafficking, a drug that may be grown, processed, and sold entirely within New York. Because the government presented the jury with no evidence that the marijuana robberies at issue here affected interstate commerce in any fashion, these convictions cannot be sustained. Consequently, we vacate defendants' convictions for Hobbs Act robbery, as well as Needham's conviction for attempted Hobbs Act robbery.
The dissent contends, in effect, that every robbery involving marijuana satisfies the Hobbs Act's jurisdictional element as a matter of law. We rejected that proposition in Parkes itself.*fn1 Yet our colleague's reasoning would reinstate this presumption, in the face of clear precedent to the contrary, by effectively putting words in the jury's mouth. In this effort, the dissent draws a false equivalence between Congress's broad power to regulate activities affecting interstate commerce, and the specific jury finding that a particular offense affected interstate commerce, which is required by the Hobbs Act. In so doing, our colleague would turn nearly every robbery into a federal offense. While the dissent concedes that its approach would transform the jury right into a mere "formalism," we believe that the government must prove an effect on interstate commerce, however slight, in every Hobbs Act prosecution. Absent proof beyond a reasonable doubt, this Court cannot substitute its own speculation for the jury finding required by our precedent.
We emphasize that with the law firmly established after Parkes, 497 F.3d 220, district courts have clear guidance about how they should instruct juries in Hobbs Act prosecutions going forward, and the situation presented here is unlikely to recur. Nonetheless, in this case the government did not offer any proof that would demonstrate an interstate nexus, however slight or subtle, for the marijuana robberies. As a result, the defendants' robbery convictions must be reversed. The district court's judgments are affirmed in all other respects.*fn2
The appellants were prosecuted for their roles in a series of violent robberies targeting narcotics dealers in the New York City area. They belonged to a conspiracy involving approximately ten individuals who, in various combinations, committed more than a dozen robberies and attempted robberies over a two-year period. These robberies ordinarily involved home invasions of suspected drug dealers in which the participants, acting on inside information, gained entry by impersonating police officers and then robbed the inhabitants of drugs and the proceeds of drug sales. In addition to the conspiracy charge, the indictment contained substantive counts charging the appellants for the various roles they played in several of the underlying robberies. Ultimately, the jury convicted the defendants of three of the robberies and conspiracy to commit Hobbs Act robbery. It acquitted the appellants and a fourth defendant, Luis Sanchez, on a variety of additional charges ranging from Hobbs Act robbery to firearms possession.
Defendants Needham and Robles were convicted for a December 13, 2001 robbery at 4434 Baychester Avenue in Bronx, New York. The trial testimony showed that Robles helped to organize the robbery, offering his house as a staging location and supplying four other co-conspirators with guns, police badges, bullet-proof vests, and a police scanner. Needham provided information as to the location of drug proceeds in the house, though she did not participate in the robbery itself. Pretending to be police officers, the crew gained access to the house, subdued the occupants at gunpoint, searched the premises, and ultimately left with a bag containing $600,000 from marijuana sales.
Needham was also convicted of an attempted robbery at 22 Short Street in Mount Vernon, New York, in late 2003. There, she provided information about a marijuana dealer operating out of the location, including details about how to get inside and who to expect there. Two of her counterparts, again equipped with police weapons, badges, and vests, gained entry and handcuffed one of the occupants before searching the apartment. Finding no drugs or money, however, the crew left the scene empty-handed. Importantly, no testimony in the record indicated what amount of drugs or money the robbery crew expected to take from the premises.
Finally, Thompson was convicted of a robbery at 2615 Grand Concourse in Bronx, New York, committed in December 2003. Neither Needham nor Robles were implicated in this robbery, however several other members of the same crew participated and Thompson provided inside information about the marijuana dealing conducted from the targeted address. After knocking at the door, the four armed men stormed in and questioned a female occupant at gunpoint. Ultimately, they stole $15,000 to $30,000 found in a shoe box in one of the bedrooms.*fn3 This appeal followed.
Offenses under the Hobbs Act require the government to prove, as an element, that a defendant's conduct affected interstate commerce. See 18 U.S.C. § 1951; United States v. Wilkerson, 361 F.3d 717, 726 (2d Cir. 2004) ("In a Hobbs Act prosecution, proof that commerce was affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference.") (internal quotation marks and alterations omitted). While this interstate effect may be "very slight," it must be proven to the jury beyond a reasonable doubt. United States v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981); see United States v. Parkes, 497 F.3d 220, 226-27 (2d Cir. 2007). At the time of trial, the law of this circuit presumed that all drug trafficking activity had an effect on interstate commerce sufficient to meet the jurisdictional requirements of the Hobbs Act. See United States v. Fabian, 312 F.3d 550, 555 (2d Cir. 2002). Accordingly, the district court instructed the jury, consistent with the law at the time, that:
Under the law, all illegal drug activity, even if it is purely local in nature, has an effect on interstate commerce. Therefore, if you find that the object of the robbery at issue was to obtain illegal drugs or money earned from the sale of illegal drugs, this element is satisfied.
The law, however, has since changed. Proof of drug trafficking is no longer regarded as automatically affecting interstate commerce; instead, even in drug cases, the jury must find such an effect as part of its verdict. See Parkes, 497 F.3d at 229-30; United States v. Gomez, 580 F.3d 94, 100 (2d Cir. 2009). The appellants correctly contend that the jury never had an opportunity to make this crucial jurisdictional finding because of the district court's instructions.
Normally, we would review the failure to charge an element of a crime for harmless error. See Neder v. United States, 527 U.S. 1, 9-10 (1999) (applying harmless-error analysis where an element of the offense was withheld from the jury over defendant's objection); Monsanto v. United States, 348 F.3d 345, 349-51 (2d Cir. 2003). But where, as in this case, a defendant has failed to timely object, we generally review for plain error. This analysis requires "(1) error, (2) that is plain, and (3) that affects the defendant's substantial rights. If all three conditions are met, we may exercise our discretion to notice the error, provided that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Carter, 489 F.3d 528, 537 (2d Cir. 2007) (internal citation omitted).
In a further twist, however, we have traditionally applied a "modified" plain error analysis in cases "where, as here, the source of plain error is a supervening decision." United States v. Henry, 325 F.3d 93, 100 (2d Cir. 2003) (internal quotation marks omitted). In these instances, the government, not the defendant, "bears the burden to demonstrate that the error . . . was harmless." Id. (internal quotation marks omitted). Yet, as a number of panels have noted, it is unclear whether this standard remains in force following the Supreme Court's decision in Johnson v. United States, 520 U.S. 461, 466 (1997), which applied a plain error standard despite a supervening change in law. Nonetheless, these panels have often found it unnecessary to squarely address the issue, because it did not affect the outcome, and we reach the same conclusion here. See, e.g., United States v. Lee, 549 F.3d 84, 89 n.2 (2d Cir. 2008); United States v. Thomas, 274 F.3d 655, 668 (2d Cir. 2001). The Court need not resolve this open question because, whether plain error or some modified approach is applied, our conclusions would be the same.
In determining whether error occurred, this Court examines the jury instructions based on "the law existing at the time of the appeal." See United States v. Ballistrea, 101 F.3d 827, 835 (2d Cir. 1996). Thus, while the district court's instructions were consistent with the law of this circuit at the time, they are measured here against the current state of our law.
Since the defendants' trial, we have rejected the view that an interstate effect can be presumed wherever the object of a robbery was to obtain illegal drugs or drug proceeds. Instead, we have held that this element must be found by a jury beyond a reasonable doubt, even where the robbery targets a drug trafficking operation. See Parkes, 497 F.3d at 230. More recently, in United States v. Gomez, 580 F.3d 94 (2d Cir. 2009), we again recognized that the interstate element of Hobbs Act robbery requires a jury finding, and that this element cannot be presumed in narcotics robberies. See id. at 100 (identifying error in instructions' reference to congressional findings, which may have misled the jury into believing that those findings were binding upon it as a trier of fact).
In this case, the interstate instruction provided by the district court foreclosed any jury determination on the jurisdictional element. The district court charged the jury, and later repeated in a post-trial order, that if the object of the robbery "was to obtain illegal drugs or money earnings from the sale of illegal drugs," the interstate element was established as a matter of law. Under our intervening decisions in Parkes and Gomez, this instruction improperly supplanted the required jury finding.
The remaining question, then, is whether this error affected substantial rights. "An error affects a defendant's substantial rights if it is prejudicial and it affected the outcome of the district court proceedings." United States v. Thomas, 274 F.3d 665, 668 (2d Cir. 2001) (internal quotation marks omitted). Because the instruction in question involved an element on which federal jurisdiction depends, we conclude that it had the potential to affect the district court proceedings. Without an interstate nexus, the district court would have been deprived of criminal jurisdiction over these offenses altogether. See United States v. Arena, 180 F.3d 380, 389 (2d Cir. 1999); United States v. Leslie, 103 F.3d 1093, 1103 (2d Cir.1997) ("There is nothing more crucial, yet so strikingly ...