HOWARD F. SACHS, District Judge
This case, scheduled for trial beginning on June 16th, requires a prompt ruling on the recently briefed motion to dismiss Count One for failure to state an offense and defendant's companion motion to dismiss Count One on the grounds that the Hobbs Act is unconstitutional as applied to the alleged facts. Both motions relate to an alleged deficiency of impact on interstate commerce. The indictment alleges extortion of funds by defendant, an Associate Circuit Judge in Sullivan County, Missouri, for the purpose of "fixing" a drug prosecution pending before him in State Court. It generally asserts that defendant's conduct obstructed and affected commerce.
This form of allegation has been held to be sufficient under the Hobbs Act, 18 U.S.C. § 1951(a). United States v. Alfonso, 143 F.3d 772, 776 (2nd Cir. 1998); United States v. Woodruff, 50 F.3d 673, 676 (9th Cir. 1995); Anderson v. United States, 262 F.2d 764 (8th Cir. 1959).
Other motions of a procedural nature are pending before Magistrate Judge Larsen and will remain before him. I will assume responsibility for the ruling on the motions to dismiss, in order to expedite processing of the case.
The leading case relied on for dismissal is United States v. Quigley, 53 F.3d 909 (8th Cir. 1995). In that case the Circuit ruled that there should be an acquittal as a matter of law, for deficient impact on interstate commerce, where there had been a robbery of two victims who were enroute to a store to buy beer. The court ruled that where the victims were private individuals, and the sum at stake was not "so large that there will be some cumulative effect on interstate commerce" there must be conduct "likely to cause the individual victim to deplete the assets of an entity engaged in interstate commerce." 53 F.3d at 910-911. The Court noted a case where "the theft of an individual's car did not affect interstate commerce" even though the individual was thereby precluded from attending a business meeting and from using his cellular telephone to make business calls.
The case law pertaining to automobiles probably signifies that the sum involved here, $10,000, is not enough to satisfy the Circuit's reference to a "large" sum of money. Compare, United States v. Buffey, 899 F.2d 1402 (4th Cir. 1990) ($20,000 insufficient). See, also United States v. McFarland, 311 F.3d 376, 398 n. 35 (5th Cir. 2002) (dissenting opinion, collection cases). Thus in the current revisionist scramble to reject federal jurisdiction over crimes that are "truly local" the involvement of $10,000 here would not be helpful to the prosecution.
United States v. Lopez, 514 U.S. 549, 568 (1995).
The Government's response invokes the "depletion of assets" theory, where it is held that "commerce is affected when an enterprise which customarily purchases items in interstate commerce has its assets depleted through extortion, thereby curtailing the victim's potential as a purchaser of such goods." United States v. Hocking, 860 F.2d 769, 776 (7th Cir. 1988). The Government apparently focuses its trial theory (and the theory of its general pleading of impact on interstate commerce) on the status of the alleged victim, William Lance May, who "was involved", so it is said, in a drug trafficking enterprise, drug manufacturing enterprise, and cattle ranching enterprise. May as a sole proprietor was himself the affected business entity in this case, so it is claimed.
The Government thus embarks on the somewhat risky theory that the past history of May, who is currently under federal indictment, and perhaps the source of his funds, involved legal and illegal interstate commerce. This may be enough, if the proof supports the theory. United States v. Hatcher, 323 F.3d 666 (8th Cir. 2003). In that case Judge Richard Arnold ruled the Government must prove active ongoing business activities or that the business suffering asset depletion "`customarily purchases items in interstate commerce, and has its assets depleted by robbery [or extortion], thereby curtailing the business' potential as a purchaser of such goods.'" The Hatcher opinion notes that "our Court's precedents do not require the government to prove that the business was actively engaged in interstate commerce at the time of the robbery," citing United States v. Vong, 171 F.3d 648 (8th Cir. 1999).
The effect of an affirmative showing of a discontinuance of business is unclear. If there is an analogy to the firearms cases, however, I note that past use of interstate commerce has been considered sufficient.
I would not suppose, moreover, that on the depletion-of-assets theory the Government would be precluded from showing (if feasible) that May would have continued to engage in interstate commerce activities regardless of his State Court prosecution. The evidentiary use of future rather than past conduct is apparently sometimes called diversion theory rather than depletion theory. United States v. Diaz, 248 F.3d 1065, 1092 (5th Cir. 2001). As a theory of impact on commerce, diversion seems somewhat safer and more realistic than merely looking to the past, but that would require additional proof.
The most comprehensive and thoughtful recent survey of relevant theories for impact on commerce in a drug-related Hobbs Act prosecution is doubtless United States v. Marrero, 299 F.3d 653 (7th Cir. 2002). I note that Judge Posner apparently would sanction a prosecution even without impact-on-commerce proof specifically relating to the victims. He said "(i)t is enough if the class of acts has such an impact." 299 F.3d at 655. "Whether the class is defined broadly as theft from drug dealers or narrowly as theft of cash from drug dealers, it is undoubtedly large enough to have some effect on the drug trade, or what is just as good, would have such an effect if the law did not punish such thefts and by punishing them deter many of the potential thieves and incapacitate the actual ones who are apprehended . . . In either event, it is legitimately punishable under Congress's power to protect interstate commerce from obstruction." Id. Whether the Eighth Circuit would accept the adequacy of proof that was not individualized remains to be seen in an appropriate case. In the firearms cases it has not been necessary to link any individual with interstate commerce.
I can envision what seems to me to be a more straight-forward theory that could be used, but is apparently disclaimed in this case. That would concentrate on Judge Sayre's alleged conduct as having the necessary effect on commerce to allow use of the Hobbs Act. One might suppose that bribery or extortion intended to defeat a drug prosecution would thereby interfere with the deterring effect of law enforcement, and would tend to encourage the drug trade, local and interstate. The Circuit has acknowledged the interdependence of the intrastate and interstate drug markets. United States v. Bell, 90 F.3d 318, 321 (8th Cir. 1996). This would focus on defendant's alleged misconduct rather than his arguably desirable conduct in depleting the assets of a drug dealer. In an economic sense a bribe serves the same function as a stiff fine.
"[O]ne might as an original matter have thought that were it not for concerns with encouraging violent activities, such as armed robbery, the obstruction of illicit commerce should be rewarded rather than punished." Marrero, 299 F.3d at 654.
In any event it seems clear that the impact-on-commerce allegations cannot be ruled out as immaterial, unprovable, or inadequately stated. The theory of prosecution asserted by the Government is legally sound, although the existence and sufficiency of supporting proof remains to be seen. The motions to dismiss Count One are denied. SO ORDERED.
MEMORANDUM TO COUNSEL
It has been reported that a change of plea will be tendered tomorrow. I have decided it will be useful to make an adverse ruling on the motions to dismiss, which will be filed today, to indicate my thoughts on the showing that will justify acceptance of a plea. The ruling may also have some educational value for counsel (assuming I am in the ballpark).