Imagine Elliot Ness in trench coat and fedora tracking down a guy who went into the neighborhood drug store with a stocking over his face and held up the clerk.
That was not the stuff of “G-men:” the Feds went after mobsters, corrupt politicians and bank robbers, not neighborhood thugs. Small-fry robberies were the business of local gumshoes.
Times have changed. Now, the federal government is prosecuting crimes traditionally reserved for state prosecutors. That means a local stick-up may indeed be a federal offense.
Although the Tenth Amendment limits the enumerated powers of the federal government, laws like the Hobbs Act are making it more likely that a kid nabbed for robbing the neighborhood 7-Eleven will end up in federal prison.
The World War II-era Hobbs Act amended the Anti-Racketeering Act of 1934, making it a federal offense to commit robbery or extortion that in any way or degree obstructed interstate commerce.
The United States Attorneys’ Bulletin, a periodical for Justice Department lawyers, suggests, as a matter of policy, that robbery offenses under the Hobbs Act should generally be used only in cases involving organized crime, gang activity, or wide-ranging schemes.
A prosecution under the Hobbs Act must show at least a de minimus—so minor as to merit disregard—connection between the crime and commerce. The Bulletin refers to U.S. v. Rutherford, an unreported Third Circuit Court opinion, as note of caution.
While at times there will be sufficient evidence to support convictions under the Hobbs Act based on the de minimis interstate commerce requirement, the Bulletin says, “the federal government might better focus its resources and unique expertise on truly ‘federal’ matters and, where possible, leave enforcement of general criminal laws to the states.”
Notwithstanding the admonitions of the United States Attorneys' Bulletin, federal prosecutors are pursing more and more local offenders. It's not as though federal agents are racing to crime scenes in an effort to beat local police in filing charges, but news accounts from across the country point to an increasing us of the Hobbs Act.
Why? The Hobbs Act has stiffer penalties for robbery than most states.
If defendants are convicted of brandishing a gun in a robbery under the Hobbs Act, they qualify for a mandatory minimum of seven years in prison, reported the Milwaukee Journal Sentinel in a July, 2013 article.
If they fire the gun, the mandatory minimum increases to 10 years.
Any additional gun counts mean a minimum of 25 years in prison. And those prison terms would run consecutively to other counts, meaning someone who commits multiple gun robberies could face many years, and possibly the rest of their lives, behind bars.
Using the Feds in local cases raises some concern. A state prosecutor handing off a case to a federal prosecutor is essentially making an end-run around the law of a particular state in favor of a harsher federal sentence. Every time a state prosecutor abdicates her authority under state law in favor of a federal prosecution, she thwarts the representative form of government.
If duly elected state legislators wanted to enact laws that could result in offenders receiving sentences in line with federal penalties, they have the authority to do so. If a legislator, or the entire legislature, is perceived as soft on crime voters can put them out of office.
If voters choose to keep those legislators, then by and large, the electorate has accepted the legislature's position on law and order.
As federal prosecutors scramble to make a connection between robbery and interstate commerce the line between state and federal prosecutions becomes blurred.
The Sixth Circuit found a de minimis effect on commerce after the robbery of an Ohio Pizzeria. The court ruled, “Based on the presence of these well-traveled ingredients, petitioner's robbery of a pizza shop became a federal offense.”
The flour, sauce and cheese all traveled by interstate commerce.
The interstate commerce nexus has even extended to prosecuting individuals who rob drug dealers. Recently, the Tenth Circuit joined the majority of circuits in holding that a robbery of a criminal organization—even an individual drug dealer—is a robbery of a business for purposes of the Hobbs Act.
To satisfy the Hobbs Act, “evidence must be adduced showing the illegal drug operation was engaged, either directly or indirectly, in interstate commerce and that the robbery depleted the assets of the drug operation.”
The Hobbs Act should be used judiciously. The application of the Act to some accused of robbery and not others seems like capriciousness.
There is no place for capriciousness in the criminal justice system.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.