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United States v. McGee

United States District Court, W.D. New York

February 17, 2017

RICO MCGEE, Defendant.


          JONATHAN W. FELDMAN United States Magistrate Judge

         Preliminary Statement

         On July 21, 2015, defendant Rico McGee (hereinafter "MdGee" or "defendant") was charged by Superseding indictment ("the Indictment") with Hobbs Act Conspiracy (Count I), two counts of Attempted Hobbs Act Robbery (Counts II and III), and Use Of a Firearm During and in Relation to a Crime of Violence (Count IV). See Indictment (Docket # 8). Oh February 29, 2016, the defendant's counsel at the time, Kevin McKain, Esq., filed omnibus motions including a motion to suppress statements. See . Docket # 36. Defendant thereafter was assigned new counsel, and on June 20, 2016 defendant's omnibus motions were Supplemented. See Docket # 59. The government responded to the first set of motions on March 25, 2016 and to the second set of motions oh July 5, 2016. See Docket ## 59, 62. On July 11, 2016, the Court heard oral argument . and resolved the majority of defendant's omnibus motions on the record. See Docket # 64. The Court reserved decision on .defendant's motions (1) to dismiss the Indictment, (2} for a bill of particulars, (3} for grand jury disclosure, (4) for severance, and (5) to suppress statements. The Court held an evidentiary hearing on the suppression motion on September 7, 2016. See Docket # 70. Based on the record now before the Court, the following is my Report and Recommendation and Decision and Order for defendant's remaining motions.[1]

         Motion to Dismiss the Indictment: All four counts of the Indictment relate to McGee's alleged participation in two "home invasion" robberies occurring on October 8, 2014 and November 4, 2014. Count I alleges that McGee conspired with others, lto obstruct, delay and affect commerce" and the "movement of articles and commodities in commerce" by robbing money and drugs from individuals "engaged in the unlawful distribution and possession of controlled substances, including heroin and marijuana" in violation of 18 U.S.C. § 1951(a), commonly referred to as the Hobbs Act. Count II alleges that the October 8 robbery violated the Hobbs Act and Count III alleges that the November 4 robbery violated the Hobbs Act. Finally, Count IV alleges, that McGee knowingly and unlawfully used, carried and brandished a handgun during and in furtherance of the November- 4 robbery, "in furtherance" of "a crime of violence" - the Hobbs Act robbery. See Indictment (Docket. # 8) .

         The common denominator in all four counts is a violation of the Hobbs Act which, in turn, requires that the charged robbery be one that "affects" interstate commerce. It is this nexus to interstate commerce that McGee claims is lacking from the criminal conduct alleged in the Indictment. Unfortunately for McGee, this Court is not writing on a "clean slate" and, as interesting as McGee's arguments may be in a discussion of the. limits of Congress's commerce clause power, his contentions are inconsistent with established Second Circuit and Supreme Court precedents - at least at this particular juncture of the prosecution.

         As a general matter, it is settled that Congress has the power to control purely local drug distribution activities because such local activities "are part of an economic 'class of activities' that have a substantial effect on interstate commerce." Gonzales v. Raich, 545 U.S. 1, 17 (2005). In Taylor v. United States, ___ U.S.___, 136 S. ct.' 2074 (2016), the Supreme- Court addressed the contours of the interstate commerce requirement found in the Hobbs- Act. Mr. Taylor was charged' with two home invasions of drug dealers, seeking to rob them of drugs and drug proceeds. Taylor argued that the government failed to satisfy the interstate commerce element of the Hobbs Act because it had not proven that the drugs subject to the robbery "originated or were destined for sale out of State, " or that the victim drug dealers "operated an interstate business." Id. at 2080. Relying on its holding in Raich, the Supreme Court rejected Taylor's commerce arguments. The Court explained its holding was simply a logical extension of Raich:

The case how before us requires no more than that we graft our holding in Raich onto the commerce element of the Hobbs Act. The Hobbs Act criminalizes robberies affecting "commerce over which the United States has jurisdiction." § 1951(b)(3). Under Raich, the market for marijuana, including its intrastate aspects, is "commerce over which the United States has jurisdiction." It therefore follows as a simple matter of logic that a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction.

Id. .Thus, when a robber tries to steal drugs from a drug dealer, ' "proof of such an attempt in itself supports the conclusion that the robber attempted to affect interstate commerce, and the robber is therefore convictable under the Hobbs Act." United States v. Lee, 834 F.3d 145 (2d Cir. 2016).

         The foregoing is not to say that the defendant's arguments here are irrelevant, but they are certainly premature'. The Court in Taylor explained that its holding • "does not make the commerce provision ' of the Hobbs Act superfluous." Taylor at 2 081. Indeed, there may be Hobbs Act trials where the conduct proven, "even in the aggregate, may not substantially affect commerce.". Id. at 2 0 81. But the Court also made clear that the nature of the proof needed to satisfy the commerce element focuses- not on the specific interstate actions of the defendant, but on the nature of the defendant's activities. "[W]here the target of a robbery is a drug dealer, proof that the defendant's conduct in and of itself affected or threatened commerce is not needed. All that is needed is proof that the defendant's conduct fell within a category of conduct that, in the aggregate, had the requisite effect.” Id.

         McGee also moves to dismiss the Indictment because the substantive counts fail to allege ' "the specific mens rea to violate the statute." See Def. ' s Omnibus Mot. (Docket # 59) at 59. In .response, the government acknowledges that' criminal intent must be alleged either explicitly or implicitly in 'a Hobbs Act charge, but argues that the Indictment is sufficient because it conveys the. required mens rea element through the use of the term "robbery" which, according to the government, has been held to imply knowing and willful conduct. See Gov't Response (Docket # 62} at 21.

         Under Second Circuit precedent, the government's position is correct. The Indictment is sufficient to assert the mens rea element of robbery even though it does not contain the words "knowingly" or "willfully." The Indictment specifically references "robbery" and its statutory definition, and thereby imputes the necessary mens rea therein.[2] The Second Circuit has ruled that the statutory definition of "robbery"' in 18 U.S. C, § 1951(b)(1) implies "knowing" and "willful" conduct, and an Indictment is sufficient even if it does not explicitly reference those terms. See United States v. Jackson, 513 F.App'x 51, 55 (2d Cir. 2013), cert, denied, 133 S.Ct. 1848 (2013); see also United States v. Tobias, 33 F.App'x 547, 549 (2d Cir. 2002), cert. denied, 538 U.S. 933 (2003) ("The indictment tracked the language of 18 U.S.C. § 1951, using the term 'robbery, ' which necessarily implies knowing arid willful conduct."); United States v. McCoy, 14-CR-6181 EAW, 2016 WL 6952351, at *3-5 (W.D.N.Y. Nov. 28, 2016} ("the grand jury in this case plainly determined that there was probable cause to believe that Defendants committed a Hobbs Act robbery . . -. Under settled Second Circuit precedent, this is plainly sufficient to allege the mens rea. element of "knowingly" and "willfully" for a Hobbs Act violation").

         It is therefore my Report and Recommendation that defendant's motion to dismiss the Indictment as a whole, and individual counts, be denied.

         Motion for Bill of Particulars: Defendant has. requested that, should the motion to dismiss the Indictment be denied, the government provide a bill of particulars. Defendant "requests particularization as to the acts of this defendant and the co-conspirators alleged within the conspiracy affording federal jurisdiction." See 'Def.'s Omnibus Mot. (Docket # 59) at 5-9. The defendant's, motion papers list twenty-six- particularization demands, including the names, roles and acts of co-conspirators, specific acts and conduct of the defendant, quantities of controlled substances, and monies involved in each count, the names of alleged victims, and the manner in which the actions affect interstate commerce. Id. at 6-8.

         As discussed above, to meet the commerce element of the Hobbs Act under Taylor, it is enough for the government to prove that the "defendant knowingly stole or attempted to steal drugs. or drug proceeds, for, as a matter of law, -the market for illegal drugs is commerce over which the' United .States has jurisdiction, " Taylor, 136 S.Ct at 2081 (internal quotations omitted). Given the nature of the required proof, McGee's argument that particularization is required to discover the . nexus to federal jurisdiction is misplaced as a pretrial motion. The government has disclosed that McGee is alleged to have attempted to rob drugs and money from a known drug dealer, which, if proved, will establish the required .commerce element for a Hobbs Act robbery.- See -United States v. Larson, No. 07GR304S, 2009 WL 899435, at *9 (W.D.N.Y. Mar. 26, 2009) (denying particularization of the interstate commerce nexus in a Hobbs Act Indictment because it is "an evidentiary matter for the Government to prove [at trial]"); see also United States v. Davis, No. 06 CR. 911 (LBS), 2009 WL 637164, . at *13 (S.D.N.Y. Mar. 11, 2009) (denying motion for bill of particulars where the ...

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