United States District Court, W.D. New York
DECISION AND ORDER & REPORT AND
JONATHAN W. FELDMAN United States Magistrate Judge
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
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) .
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.
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).
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.”
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.
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. 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").
therefore my Report and Recommendation that defendant's
motion to dismiss the Indictment as a whole, and individual
counts, be denied.
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.
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