Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 CR 666 -- Bernard M. Decker, Judge.
Wood and Posner, Circuit Judges, and Dumbauld, Senior District Judge.*fn*
This appeal, raising a variety of issues, arises from a jury conviction under 18 U.S.C. § 1951 ("the Hobbs Act") for the armed robbery of Alfred's Orange Blossom Jewelers ("Orange Blossom") in Oak Lawn, Illinois, on December 15, 1977. The court sentenced Jarrett as a dangerous special offender under 18 U.S.C. § 3575 to twenty-five years imprisonment.
Jarrett asserts that the federal government lacked both constitutional power and statutory authority to prosecute him for the robbery of the Orange Blossom. According to Jarrett, the Hobbs Act does not permit the federal government to bring a criminal prosecution for a local robbery of a retail store upon a de minimis showing of effect on interstate commerce. Jarrett argues that, although the de minimis standard applies in extortion cases under the Hobbs Act, a more exacting standard should apply in robbery cases because of constitutional limits on the power of the federal government imposed by the reservation of power to the states to prosecute traditionally local offenses under the Tenth Amendment.*fn1 Jarrett points out that traditionally robbery is a local offense whereas extortion is not. Thus, Jarrett concludes, the government failed to establish Hobbs Act jurisdiction in this case because, "of the $38,952.03 listed stolen, the Government proved that about $2,000 worth of interstate commerce was 'affected,'" a figure which establishes only a de minimis effect on commerce. An examination of the statutory language of the Hobbs Act, the legislative history of the Act, the cases interpreting the Act, and the cases which examine the Tenth Amendment refute this position.
Nothing on the face of the Hobbs Act indicates a congressional intent to define the phrase "affects commerce" more narrowly with respect to the offense of robbery as opposed to the offense of extortion.*fn2 To the contrary, the statute places robbery and extortion on equal ground regarding the jurisdictional requirement of affecting commerce. Such equal placement and treatment provides strong evidence that Congress intended the use of the same standard in determining effect on commerce by robbery or extortion.
The legislative history provides no support for Jarrett's contentions. Congress clearly intended to define as a federal crime conduct that it recognized as punishable under state law. United States v. Culbert, 435 U.S. 371, 379, 55 L. Ed. 2d 349, 98 S. Ct. 1112 (1978). The legislative debates contain numerous statements to the effect that the conduct reached by the Hobbs Act was already subject to punishment under state robbery and extortion statutes.*fn3 Representatives who opposed the Hobbs Act contended that the Act interfered with the rights of the states.*fn4 In passing the bill, however, Congress concluded that "the States had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so." United States v. Culbert, 435 U.S. 371, 380, 55 L. Ed. 2d 349, 98 S. Ct. 1112. Contrary to Jarrett's position, Congress perceived both extortion and robbery to be crimes traditionally subject to state prosecution.
Jarrett cites no case which distinguishes between the degree to which commerce must be affected for purposes of invoking federal jurisdiction for a charge of robbery and for a charge of extortion under the Hobbs Act. Courts draw no such distinction and require only a de minimis effect for robbery as well as extortion.
In Stirone v. United States, 361 U.S. 212, 215, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960), an extortion prosecution, the Court stated that the Hobbs Act "speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence." Reaffirming this view in United States v. Culbert, 435 U.S. 371, 55 L. Ed. 2d 349, 98 S. Ct. 1112 (1978) (extortion prosecution), a unanimous Supreme Court said:
the statutory language [of the Hobbs Act] sweeps within it all persons who have "in any way or degree . . . affect[ed] commerce . . . by robbery or extortion." . . . These words do not lend themselves to restrictive interpretation; as we have recognized, they "manifest . . . a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence."
In a Hobbs Act robbery prosecution, United States v. Caldarazzo, 444 F.2d 1046 (7th Cir.), cert. denied, 404 U.S. 958, 92 S. Ct. 328, 30 L. Ed. 2d 276 (1971), this circuit drew no distinction between the jurisdictional requirement for robbery and extortion cases. In Caldarazzo, we ruled that "the Hobbs Act provides federal sanctions for robbery which 'in any way or degree obstructs, or delays, or affects commerce or the movement of any article or commodity in commerce.'" Id. at 1048-49.
We have previously held in an extortion case that "the commerce element [of the Hobbs Act is] satisfied where the actual impact on commerce is de minimis, . . . or where, in the absence of proof of an actual impact, there is a realistic probability that the extortionate transaction will have some effect on interstate commerce." United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir. 1980), cert. denied, 450 U.S. 965, 67 L. Ed. 2d 614, 101 S. Ct. 1481 (1981). Thus, in light of Caldarazzo and Hedman, we hold that the de minimis standard applies to robbery cases under the Hobbs Act.
The Eighth Circuit, in Nick v. United States, 122 F.2d 660 (8th Cir.), cert. denied, 314 U.S. 687, 86 L. Ed. 550, 62 S. Ct. 302 (1941), addressed a Tenth Amendment attack on the validity of the Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979, 18 U.S.C. §§ 420a-420e (the predecessor to the Hobbs Act). In upholding the validity of the Act, the court, 122 F.2d at 668, explained as follows:
The argument as to the Tenth Amendment is that this Act undertakes to invade State jurisdiction and deal with domestic violence -- in short, is an attempt to exercise the police power reserved to the States under the Amendment. Clearly this is not true. The Act is an exercise of police power but it is based upon the protection of interstate commerce. If it comes within the commerce clause of the Constitution it is not open to this objection. If it does not come within the commerce clause it would be invalid whether it involved an exercise of police power or not. That the Act is within the commerce clause seems clear. . . .
Similarly, the Ninth Circuit in Carbo v. United States, 314 F.2d 718, 733 (9th Cir. 1963) held that the Hobbs Act is within the power of Congress and does not contravene the Tenth Amendment.*fn5
Rather than regulate the internal functions of the states, the Hobbs Act regulates the activities of individuals.*fn6 Furthermore, the Hobbs Act does not displace the states' freedom to prosecute robberies or extortions. See generally Bartkus v. Illinois, 359 U.S. 121, 3 L. Ed. 2d 684, 79 S. Ct. 676 (1959) (Illinois robbery conviction following federal prosecution and acquittal of bank robbery presents no double jeopardy problem). The Hobbs Act presents no unconstitutional intrusion upon the sovereignty of the states and, thus, is a constitutional exercise of the commerce power.
II. Jury Instruction on Affecting Commerce Element
Jarrett contends that the district court's instruction respecting the necessary element of interstate commerce was inadequate. According to Jarrett, the instruction which the trial court gave "improperly delegated to the jury" the question of law of whether the robbery affected interstate commerce. Thus, Jarrett argues, the trial court erred in instructing the jury in terms of the governing legal standard instead of requiring the jury to determine only the factual questions supporting a finding of effect on commerce, such as whether the Orange Blossom store received jewelry from ...