Opinion analysis: Proof of interstate effects is unnecessary for federal prosecution when illegal drugs are involved
on Jun 20, 2016 at 9:19 pm
In a brief nine-page decision today in Taylor v. United States, which seven of the eight Justices found “dictated by … precedent,” Justice Samuel Alito wrote for the Court that “a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the state” necessarily satisfies the “affects commerce” element of the federal Hobbs Act criminal statute. Thus proof that a defendant “targeted a marijuana dealer’s drugs or illegal proceeds” suffices – without any further proof of interstate effect in the particular case – to prove that element “beyond reasonable doubt.” Justice Clarence Thomas dissented alone, largely reprising his 2005 dissent in Gonzales v. Raich (which upheld federal regulation of intrastate marijuana possession and sale). He also accused the Court of “failing to hold the Government to its burden to prove [every element of a criminal offense] beyond reasonable doubt” under In re Winship. Finally, although the late Justice Antonin Scalia’s vote would apparently not have made a difference in this case (although Justice Scalia could sometimes be surprisingly persuasive), one can imagine he might have written on at least the “proof beyond a reasonable doubt” point.
Taylor participated in robberies of marijuana dealers, and the Hobbs Act reaches robberies “affecting” commerce
As detailed in prior posts, David Anthony Taylor participated in two home-invasion robberies targeting perceived marijuana dealers in Virginia. In each robbery, no large amounts of marijuana were found (there was a single marijuana cigarette in one), although other property of relatively low value was stolen.
Taylor was federally charged with two violations of the Hobbs Act, which allows federal prosecution of “whoever in any way obstructs, delays, or affects commerce … by robbery … or attempts or conspires so to do.” Congress wrote expansively in this statute, invoking its constitutional authority to regulate “commerce among the several states” to reach “all … commerce over which the United States has jurisdiction.” Justice Alito wrote today (in a bit of unacknowledged tension with precedents like United States v. Lopez) that this “unmistakably broad” statutory language “reaches any … effect on commerce, even if small.”
Taylor was tried twice. The first jury hung, after evincing some concern that the marijuana Taylor and his gang targeted might have been grown and intended for sale wholly within Virginia, and thus not “interstate.” For Taylor’s second trial, the government moved, and the district court agreed, to preclude any evidence from Taylor on the possible intrastate character of his crime. On appeal, the Fourth Circuit affirmed Taylor’s conviction without such evidence, “[b]ecause drug dealing in the aggregate necessarily affects interstate commerce.” The court of appeals relied on the Court’s 2005 opinion in Raich, which seemed to be premised on that point.
A brisk ruling that drug dealing does always “affect” interstate commerce
In determining “how far this [Hobbs Act] commerce element extends,” the Court’s opinion today affirmed the Fourth Circuit’s basically syllogistic reading of Raich and prior Commerce Clause decisions. Under the familiar twentieth-century precedents of Wickard v. Filburn, Lopez, and United States v. Morrison, Congress has the constitutional authority (“thus far”) to regulate economic activities that “substantially affect” interstate commerce. Then in Raich, the Court ruled that in order to avoid “a gaping enforcement hole in Congress’s regulatory scheme” for illegal narcotics, the federal Controlled Substances Act can constitutionally reach even those marijuana “activities” that “occur entirely within the boundaries of a single State.” This is because an “economic class of activities” can “in the aggregate substantially affect interstate commerce,” so that even small intrastate activities that make up the “aggregate” can be reached federally.
As the Justices saw it today, “the case before us requires no more than that we graft our holding in Raich onto the commerce element of the Hobbs Act.” Because Raich held that “the market for marijuana, including its intrastate aspects, is ‘commerce over which the United States has jurisdiction,’” it follows “as a simple matter of logic” that individualized proof of interstate marijuana or effect is not required in an individual Hobbs Act marijuana dealer robbery case. Taylor’s conviction is therefore affirmed because the “absence of interstate effect” evidence he wished to offer was, apparently, irrelevant as a matter of law.
Key to the Court’s holding today was its statement that, although the government must indeed prove beyond a reasonable doubt that a defendant’s conduct “satisfies the [Hobbs] Act’s commerce element, … the meaning of that element is a question of law” and not for the jury. Because Raich “established that the purely intrastate production and sale of marijuana is commerce” that Congress may reach, proof that Taylor was targeting “a marijuana dealer’s drugs or illegal proceeds” suffices to carry the prosecution’s constitutional burden to prove the commerce element beyond reasonable doubt. It is “flawed” to “confuse the standard of proof with the meaning of the element.” “As a matter of law, the market for illegal drugs is commerce” that Congress may reach criminally.
The Court’s opinion perfunctorily notes that it was “not … asked to reconsider Raich” (at least not by Taylor). But Justice Thomas’s dissent today surely does pose that question, and the Court’s brisk opinion does not suggest any actual inclination to pursue it. The Court also notes in its final paragraph that its opinion is “limited” to Hobbs Act robberies of illegal drugs such as those addressed in Raich, and “we do not resolve” what must be proven in a Hobbs Act prosecution involving “some other type of business or victim.” Still, the final citation in the opinion is to the 1960 decision in Stirone v. United States, and it includes Justice Alito’s parenthetical notation that, in Stirone, the government proved that a concrete business “actually obtained supplies and materials from out of State.” This express description suggests that federal prosecutors should not read Taylor to allow them to dispense with actual interstate effects evidence in other Hobbs Act cases.
Justice Thomas’s dissent and the absence of Justice Scalia
In Raich, Justice Thomas dissented from the Court’s broad Commerce Clause ruling. He does so again here, and correctly notes that the Court’s five-to-four decision in Raich expressly said that it was not deciding whether Angel Raich’s intrastate growth and use of medical marijuana in fact substantially affected interstate commerce, but rather only whether Congress could have had a “rational basis” for so concluding. Justice Thomas describes today’s opinion as an extension of Raich, not just a dictated application, and he warns of the “dangerous step” it seems to take toward granting Congress “a general police power” over state criminal offenses. He notes that Chief Justice John Marshall long ago wrote that “Congress cannot punish felonies generally” (in the 1821 case Cohens v. Virginia) and that the Court wrote again in Lopez that the Constitution “withholds from Congress a plenary police power.”
In addition, Justice Thomas believes that the Hobbs Act must be read to require evidence of the necessary effect on interstate commerce in every prosecution. To read it otherwise “weakens longstanding protections for criminal defendants” under Winship. However, Justice Thomas is alone in his dissent today – and it is his fifth lone dissent this Term.
Finally, what might Justice Scalia have done in this case? Such parlor-game hypothesizing cannot have concrete resolution. Moreover, he might have just silently joined the majority. Justice Scalia did not join Justice Thomas in dissent in Raich. Instead, his concurrence broadly stated that under the Constitution’s “Necessary and Proper” Clause, “Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” Perhaps this view would also support Justice Alito’s writing today.
Still, a 2009 biography of Justice Scalia suggests that the Justice may have come to regret the tensions between his broad view of federal authority in Raich and his critique of broad constitutional Commerce Clause precedents in general. Moreover, Justice Scalia – as the driving force behind the Court’s recent strong application (in decisions like Apprendi and Blakely) of the constitutional “prove all elements beyond reasonable doubt” requirement — might have been less quick than today’s majority to endorse a broad “as a matter of law” definition of constitutional commerce, without requiring more individualized proof. This case, however, was argued ten days after Justice Scalia’s untimely passing. Only those within the Court’s close confidential circle can know what early views, if any, he may have developed about this case.
Conclusion: drug dealers almost never win
A decade ago some pundits speculated that Justice Scalia’s concurring views in Raich were an example of his specific distaste for illegal drugs overcoming his general distaste for New Deal federal Commerce Clause authority. Similarly, the Republican-appointed author of today’s opinion, Justice Alito, was a career federal prosecutor raised on the government’s wars on drugs and gangs. Still, today’s opinion was a super-majority, and included Justices who often express suspicion of criminal prosecution. And indeed, today’s result is easily viewed as an unavoidable and logical application of Raich. As is often the case at this time of year, there is too little time, and too many more important cases, left in the Term to allow the Justices to write out labored explanations and detailed fly-specking of results in “easy” cases. Surely drug dealers, and their violent robbers, start with two strikes. The question in this case was a fastball right down the middle, and Mr. Taylor was called out looking.