Interstate Offenses

Gonzales v. Raich, 545 U.S. 1 (2005)

The United States Supreme Court holds that Congress may outlaw the possession or manufacturing of marijuana even if it is possessed for personal consumption and prescribed by a physician. The potential effect that intrastate, noncommercial cultivation and use of marijuana has on the interstate market for the drug is sufficient to allow Congress to exercise its power under the Commerce Clause to proscribe all production and use. The fact that the state authorized the medical use of marijuana had no bearing on Congress’s power to outlaw its possession or cultivation.

United States v. Morrison, 529 U.S. 598 (2000)

Congress may not regulate noneconomic violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. Therefore, the Violence Against Women Act is unconstitutional.

Jones v. United States, 529 U.S. 848 (2000)

Arson of a private residence does not affect interstate commerce for purposes of the federal arson statute’s jurisdictional element, even though the residence was insured and mortgaged through out-of-state entities and heated with out-of-state natural gas.

United States v. Robertson, 514 U.S. 669 (1995)

The defendant was convicted of violating RICO by investing the proceeds of narcotics transactions in a gold mine in Alaska. Employees of the mine were recruited from outside the state; some of the gold was sold outside the state; and some of the equipment was purchased out of state. This satisfactorily established that the mine was “engaged in interstate commerce.” The court of appeals improperly focused solely on whether the operations of the mine “affected” interstate commerce. RICO, however, establishes jurisdiction if the enterprise’s activities affect interstate commerce, or if the enterprise is engaged in interstate commerce. The latter was sufficiently shown in this case.

United States v. Lopez, 514 U.S. 549 (1995)

The Gun Free School Zones Act outlaws possession of a gun in a school zone. This law exceeded Congress’ authority under the Commerce Clause. There is no jurisdictional element of the offense (requiring a demonstrated effect on interstate commerce); nor any congressional finding that such activity affected interstate commerce.

United States v. Needham, 604 F.3d 673 (2d Cir. 2010)

A Hobbs Act prosecution requires proof that the offense affected interstate commerce. Even in a robbery involving drugs, the government is required to prove that the offense affected interstate commerce. Because this is an essential element of the offense, the jury must be instructed that they must find that the robbery affected interstate commerce and the failure to do so is reversible error. See United States v. Parkes, infra.

United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007) A child pornography prosecution requires proof that the image traveled in interstate commerce (including via a computer). In this case, the only evidence was that the image arrived via the Internet, but no proof of any interstate nexus. The mere fact that the image arrived over the Internet does not ipso facto establish that the image traveled in interstate commerce. OVERRULED in part by United States v. Sturm, 672 F.3d 891 (10th Cir. 2012).

United States v. Parkes, 497 F.3d 220 (2d Cir. 2007)

Proof that a defendant’s robbery was designed to obtain illegal drugs – marijuana – is not alone sufficient to establish that the crime involved an effect on interstate commerce. The government must introduce evidence that the marijuana was, or was at least likely, to have traveled in interstate commerce. (The government satisfied its burden in this case).

United States v. Mann, 493 F.3d 484 (5th Cir. 2007)

The defendant was convicted of various offenses, including mail fraud, wire fraud, and Hobbs Act, based on stealing motorists’ speeding ticket money. Because the government failed to prove that some of the motorists were traveling interstate, those counts had to be dismissed because of failure to prove a sufficient nexus to interstate commerce.

United States v. Craft, 484 F.3d 922 (7th Cir. 2007)

While affirming several counts of conviction, the Seventh Circuit held that the arson of the Hells Angels “clubhouse” was not a federal offense, because the clubhouse was not sufficiently connected to interstate commerce. While some of the members’ dues were used to pay for members’ interstate trips, this was not a sufficient nexus to interstate commerce.

United States v. Groves, 470 F.3d 311 (7th Cir. 2006)

The defendant was convicted of being a felon in possession of a firearm (a shotgun). The police never recovered the shotgun, but a neighbor testified that he saw the defendant with the weapon. At trial, in order to prove that the gun had traveled in interstate commerce, the prosecutor asked the expert whether any major shotgun manufacturers were located in Indiana. There are not, and, consequently, the expert opined that if the defendant possessed a shotgun in Indiana, it had to have traveled in interstate commerce. The Seventh Circuit reversed. There was no definition of what a “major manufacturer” of shotguns was, and consequently, there was insufficient proof that the defendant’s shotgun did, in fact, travel in interstate commerce.

United States v. Patton, 451 F.3d 615 (10th Cir. 2006)

The Tenth Circuit concluded that the statute that criminalizes the possession of bullet-proof vests by felons is unconstitutional insofar as it applies to all bullet-proof vests without proof that the particular vest traveled in interstate commerce. In this case, however, the vest was shown to have traveled in interstate commerce.

United States v. Macewan, 445 F.3d 237 (3rd Cir. 2006)

Any use of the Internet in connection with pornography satisfies the interstate commerce requirement, regardless of whether the government introduces evidence that the actual images traveled across a state line.

United States v. Reasor, 418 F.3d 466 (5th Cir. 2005)

Forged checks that were written on the bank account of a church were not sufficiently connected to interstate commerce to support a federal prosecution for forgery. There were insufficient facts stated during the guilty plea proceeding that the church’s activities were “in” or that they “affected” interstate commerce. The factual statement at the guilty plea proceeding was therefore insufficient to support the plea.

United States v. Chambers, 408 F.3d 237 (5th Cir. 2005)

The indictment alleged that the defendant possessed “rounds” (i.e., bullets) that had traveled in interstate commerce. The rounds were actually manufactured in the same state where they were found in possession of the defendant. The government argued that components of the rounds had traveled in interstate commerce prior to the manufacture of the completed rounds. This amounted to an amendment of the indictment. The evidence was insufficient to support a conviction on these counts of the indictment and the conviction was reversed.

United States v. Davies, 394 F.3d 182 (3rd Cir. 2005)

The defendant burned a church which bought supplies from out-of-state and graduated students who moved out-of-state. This was insufficient evidence to establish an impact on interstate commerce. Note that this was an arson prosecution, not a prosecution under the church burning statute, as in Ballinger, infra.

United States v. Maxwell, 446 F.3d 1210 (11th Cir. 2006)

The initial panel decision (386 F.3d 1042) held that a blank computer disk that was transported in interstate commerce (while still blank), and later used to copy child pornography, but that was not transported in interstate commerce afterwards, did not provide federal jurisdiction. The panel held that the pornography must travel in interstate commerce, not just the disk (blank) onto which the pornography is later copied. This case contains a very lengthy analysis of the various theories of interstate commerce. – THIS CASE WAS SENT BACK TO THE ELEVENTH CIRCUIT FROM THE SUPREME COURT FOR RECONSIDERATION IN LIGHT OF GONZALEZ V. RAICH. ---- AND REVERSED on April 20, 2006 – 446 F.3d 1210 (11th Cir. 2006). The new decision held that copying pornography onto a disk that has previously traveled in interstate commerce is a federal offense.

Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004)

The Sixth Circuit concluded in the RICO case that a gang member who kills a member of a rival gang has not engaged in conduct that satisfies the interstate commerce element of the offense, unless the rival gang was involved in economic activity that affected interstate commerce. In this case, the rival gang was affiliated with another gang that was involved in drug dealing, but the Sixth Circuit held that this was an insufficient connection to interstate commerce. Violence, alone, even when considered in the aggregate, does not affect interstate commerce. See United States v. Morrison, 529 U.S. 598 (2000).

United States v. Lamont, 330 F.3d 1249 (9th Cir. 2003)

Arson of a church will not necessarily amount to a federal offense, because of the absence of a sufficient nexus to interstate commerce, even if members of the church come from other states, the church has membership in an interstate organization, and there are interstate transfers of church funds.

United States v. Drury, 396 F.3d 1303 (11th Cir. 2003)

The initial panel decision in this case held that use of a telephone to make an intrastate phone call was not sufficient to create federal jurisdiction under the 2002 version of 18 U.S.C. § 1958, the murder for hire statute. Though the telephone system is an instrumentality in interstate commerce, the statute, as construed by the Eleventh Circuit, requires a call that actually travels in interstate commerce. The element was actually satisfied in this case, because the cell phone call relayed the signal from a place in south Georgia, to a tower in north Florida and then back to the recipient of the call in south Georgia. Though the caller and recipient of the call were in Georgia, the signal actually traveled in interstate commerce. The statute was subsequently amended to specifically provide for a conviction if a facility of interstate commerce was used – i.e., a telephone – even if the call was purely intrastate.

United States v. Ballinger, 312 F.3d 1264 (11th Cir. 2002)

The Eleventh Circuit panel initially held that there was insufficient interstate commerce evidence to convict the defendant of burning down several churches in rural Georgia in violation of 18 U.S.C. § 247(a)(1). The statute expressly requires proof that the arson be “in or affect interstate commerce.” When purely intrastate activity is involved and the government argues that this activity affected interstate commerce, the proof must demonstrate a “substantial effect” on interstate commerce. REVERSED by the en banc court January 10, 2005. 395 F.3d 1218 (11th Cir. 2005) (en banc). The en banc court upheld the conviction on the theory that the defendant was traveling from state-to-state and burning churches wherever he went, thus satisfying the interstate commerce requirement.

United States v. Perrotta, 313 F.3d 33 (2d Cir. 2002)

An extortion offense committed against a person who is employed by a company engaged in interstate commerce does not affect interstate commerce simply because the employee misses time at work.

United States v. Corp, 236 F.3d 325 (6th Cir. 2001)

The defendant’s possession of pornographic pictures of his wife and girlfriend having sexual relations could not be prosecuted under 18 U.S.C. § 2252(a)(4)(B), because of a lack of a sufficient interstate nexus. The fact that the photographic paper was manufactured out of state was not a sufficient nexus. This case was later distinguished in United States v. Andrews, 383 F.3d 374 (6th Cir. 2004). Still later, the Sixth Circuit held that in light of Raich, the decision in Corp was no longer good law. United States v. Bowers, 594 F.3d 522 (6th Cir. 2010).

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997)

The Clean Water Act does not authorize prosecutions where the water being polluted has not been shown to either be navigable, or affect interstate commerce. Regulations promulgated pursuant to the Act which outlaw polluting intrastate non-navigable waters that could affect interstate commerce, were not authorized by the Act and are not constitutional.

United States v. Leslie, 103 F.3d 1093 (2d Cir. 1997)

The government failed to prove that one of the money laundering transactions in this case affected interstate commerce. Just because the transaction involved a bank does not necessarily mean that interstate commerce was affected.

United States v. Pinckney, 85 F.3d 4 (2d Cir. 1996)

The government failed to prove that the defendant’s operation of a “chop shop” affected interstate commerce. There was no evidence that the stolen cars were transported to the shop from outside the state, or that the disassembled car parts were sold out-of-state. The failure of proof doomed both the substantive and the conspiracy conviction.

United States v. Coates, 949 F.2d 104 (4th Cir. 1991)

The murder-for-hire statute, 18 U.S.C. §1958, requires the use of a facility in interstate commerce in connection with the murder for hire scheme. In this case, the only interstate facility was a telephone call placed by the undercover agent to the defendant, across a state line, which was done for the purpose of “manufacturing” jurisdiction. The conviction was reversed. Though the jurisdictional link may be incidental in nature, it may not be contrived.

United States v. Buffey, 899 F.2d 1402 (4th Cir. 1990)

The government failed to demonstrate that the victim’s effort to pay the defendant’s demands were reasonably likely to affect interstate commerce. Therefore, the defendant’s Hobbs Act conviction was reversed. The court does not rely on the fact that there had been no actual effect on interstate commerce. Rather, the court focused on the fact that if the facts had been as the defendant believed, there would not have been any effect on interstate commerce.

United States v. Box, 50 F.3d 345 (5th Cir. 1995)

The defendants, a bail bondsman and local law enforcement agents, would arrest people at a roadside rest area and agree to drop the charges after bond had been posted. With respect to the people arrested who had not traveled in interstate commerce, the facts did not show any impact on interstate commerce and the Hobbs Act convictions on these counts would be set aside.

United States v. Collins, 40 F.3d 95 (5th Cir. 1994)

The defendant stole the victim’s car and cellular phone while he was fleeing from the police after he robbed a restaurant. This latter robbery was not shown to have had a sufficient effect on interstate commerce under 18 U.S.C. §1951(a). The only effect on interstate commerce was the individual’s employment with a company whose business affected interstate commerce.

United States v. DiCarlantonio, 870 F.2d 1058 (6th Cir. 1989)

The defendant’s Hobbs Act conviction was reversed because of the government’s failure to establish any effect on interstate commerce. The money used to pay the bribe was FBI funds; the sought-after action of the government officials was to permit the use of propane tanks within the city limits. The defendants did nothing which either increased or decreased the flow of propane as the result of the bribe. As a result, there was no effect on interstate commerce by virtue of the money paid or the action undertaken by the officials.

United States v. Bruun, 809 F.2d 397 (7th Cir. 1987)

A broker who was proved to have received stolen securities did not cause their “transportation” merely by providing a ready market for them. Conviction for interstate transportation of stolen securities was reversed.

United States v. Johnson, 56 F.3d 947 (8th Cir. 1995)

The car-jacking statute, 18 U.S.C. §2119, requires proof that the vehicle traveled in interstate commerce after it was assembled. It is not enough to prove that the parts of the vehicle were shipped to the car manufacturer from out of state. Therefore, in one count of this case, where the car was assembled in Missouri, the government failed to satisfy this jurisdictional element where the offense was shown to have occurred in Missouri. (Nevertheless, the court did affirm several other counts of conviction, for which the defendant was sentenced to 1,235 months of imprisonment – after which there would be three years of supervised released).

United States v. Quigley, 53 F.3d 909 (8th Cir. 1995)

Pursuant to 18 U.S.C. §1951(a), it is unlawful to commit a robbery which in any way obstructs, hinders, delays, or affects commerce between the states. In this case, the defendants robbed two hitchhikers who were traveling to purchase beer in another town in the same state. This evidence did not satisfy the interstate commerce element of the offense. Usually, the statute is used in cases where the victim is a business which is involved in interstate commerce. The fact that the beer which the victims were intending to purchase had traveled in interstate commerce was not sufficient to establish the jurisdictional element of §1951.

United States v. Flynn, 852 F.2d 1045 (8th Cir. 1988)

Evidence that dynamite traveled in interstate commerce was not sufficient to convict the defendant of transportation and receipt of dynamite in interstate commerce. The only evidence was that the dynamite came from “across the river” which does not sufficiently establish that the dynamite came from another state.

United States v. Ripinsky, 109 F.3d 1436 (9th Cir. 1997)

An essential element of §1957 money laundering is a financial transaction involving the use of a financial institution that is engaged in, or the activities of which affect, interstate or foreign commerce. The foreign commerce component of this element is an essential element of the offense that must be proven beyond a reasonable doubt and submitted to the jury.

United States v. Barone, 71 F.3d 1442 (9th Cir. 1995)

The defendants cashed over 130 checks on the accounts of fake, or defunct companies at local casinos or businesses. The defendants were charged with the federal offense of uttering forged securities in violation of 18 U.S.C. §513(a). The victim casinos and businesses had operations which affected interstate commerce. Nevertheless, the companies on whose accounts these checks were drawn were defunct and the statute requires that the securities be of an organization which operates in or the activities of which affect interstate commerce. Because those companies’ activities did not affect interstate commerce, the conviction could not be sustained. It is not enough to prove under §513(a) that the victim organizations affected interstate commerce.

United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995)

An essential element of a federal arson prosecution under 18 U.S.C. §844(i) is that the property was used in, or used in any activity affecting, interstate or foreign commerce. In this case, the defendant committed arson on a home which used natural gas which was shipped in interstate commerce. There was no additional showing of an effect on interstate commerce. This evidence did not satisfy the interstate commerce element of the offense. The relationship between the property and interstate commerce must be “substantial,” the court holds, relying on United States v. Lopez. Need to re-examine this case in light of Jones v. United States, 529 U.S. 848 (2000).

United States v. Cruz, 50 F.3d 714 (9th Cir. 1995)

18 U.S.C. §922(j) outlaws the possession of a firearm which has been stolen and which has traveled in interstate commerce. The court holds that the government must prove that the defendant knew the firearm was stolen and must also prove that after the gun was stolen it traveled in interstate commerce. It is not enough to prove that at some point in time the gun traveled and thereafter was stolen. In this case the defendant possessed grenades which had traveled in interstate commerce and were stolen in Guam. The defendant possessed the grenades in Guam.

United States v. Grey, 56 F.3d 1219 (10th Cir. 1995)

The defendant paid $200.00 to a club manager to add to the pool of an illegal video poker game. This was the basis for the defendant’s money laundering prosecution. The government’s argument that the $200.00 in federal reserve notes had traveled in interstate commerce was not sufficient to carry the day on the jurisdictional element that the transaction affect interstate commerce. The government’s theory would mean that all offenses involving currency automatically satisfy the interstate commerce element.

United States v. Denalli, 73 F.3d 328 (11th Cir. 1996), modified at 90 F.3d 444

The defendant burned down the house of his next door neighbor. Because the neighbors’ house was not used, and did not affect interstate commerce, a conviction under 18 U.S.C. §844(i) could not be sustained. The court concluded that to sustain a conviction under the “affecting interstate commerce” theory, the government would have to prove that the residence had a substantial effect on interstate commerce.

United States v. Frost, 61 F.3d 1518, modified, 77 F.3d 1319 (11th Cir. 1996), judgment vacated on other grounds, 117 S.Ct. 1816 (1997)

The defendants were political rivals of a city council member. They sent an extortion letter to their rival (threatening to expose his extramarital activity if he did not resign). The defendants were charged with a Hobbs Act violation. The evidence, however, failed to establish a sufficient nexus to interstate commerce. Although the indictment sufficiently alleged an interstate commerce nexus, the government’s proof fell short of its intended purpose. The affairs of the city council were linked to interstate commerce; but there was no showing that the resignation of one member of the six-member city council would have impacted the continuing business of that governing body in such a manner as to constitute a violation of the federal statute. Therefore, the extortion threat, if it had succeeded, was not shown to be likely to have the natural effect of obstructing commerce.