High Court Wrestles With Feds' Jurisdiction Over Local Pot

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By Patrick Gregory

Feb. 23 — A Hobbs Act defendant faced an uphill battle at U.S. Supreme Court oral argument Feb. 23 arguing the government hadn't met its burden to show that a robbery of home grown marijuana affects interstate commerce.

The outcome here could limit the federal government's jurisdiction to prosecute defendants accused of a drug-related crime under the Hobbs Act, 18 U.S.C. §1951(a), which allows federal prosecution for robberies or extortions that affect commerce.

But such an impact didn't seem likely, with multiple justices suggesting that federal jurisdiction here is clear under Gonzales v. Raich, 545 U.S. 1 (2005).

Raich upheld federal jurisdiction to regulate intrastate drug activity via the Controlled Substances Act under the U.S. Constitution's commerce clause.

Raich Reservations

At least two justices indicated that Raich might not resolve the case, however.

Chief Justice John G. Roberts Jr. seemed sympathetic to the defendant's argument that the federal government must prove the interstate commerce element beyond a reasonable doubt in a Hobbs Act prosecution.

Justice Samuel A. Alito Jr. seemed concerned about extending the Hobbs Act to robberies of even a single marijuana cigarette, but Justice Anthony M. Kennedy suggested such concerns weren't before the court here.

Southwest Goonz

David Anthony Taylor, the petitioner here, was convicted under the Hobbs Act for robbing two purported drug dealers as a member of the “Southwest Goonz” gang.

The robberies allegedly targeted marijuana.

Federal jurisdiction existed because “drug dealing in the aggregate necessarily affects interstate commerce” even if any marijuana activity was wholly intrastate, the U.S. Court of Appeals for the Fourth Circuit held in United States v. Taylor, 754 F.3d 217 (4th Cir. 2014).

Raich Resolves?

The Hobbs Act has two elements, Dennis E. Jones of Abingdon, Va., arguing for Taylor, said.

First, the federal government must show that the defendant obtained personal property by extortion or robbery, Jones said.

Second, it must show that the crime “creates an interference with commerce,” Jones said.

That effect on commerce “is the jurisdictional element of the crime,” Jones said.

Like any element, it has to be “proven beyond a reasonable doubt” with “particularized evidence,” Jones said.

Taylor was improperly denied a chance to rebut the interstate commerce element with evidence that the targeted marijuana was homegrown in Virginia, Jones said.

Justice Elena Kagan was skeptical.

The Hobbs Act requires an effect on commerce, but “I don't think that the Hobbs Act requires the government to show” that impact, Kagan said.

It's already certain that the federal government has jurisdiction over not only interstate commerce, but also “intrastate drug trafficking” under Raich, Kagan said.

It seems “completely irrelevant whether the drug trafficking was intrastate or interstate, because in either case, it was commerce over which” the federal government has jurisdiction, Kagan said.

Kennedy Examines ‘Effect.'

Jones attempted to distinguish Raich, arguing that unlike the Controlled Substances Act, the Hobbs Act requires an “effect” on interstate commerce.

But one could make the same argument even if interstate drugs rather than homegrown marijuana were targeted here, Kennedy said.

Jones's argument was “very hard to comprehend,” Kennedy said.

Kennedy pressed Jones, asking whether the federal government would need an economist expert witness to show an interstate commerce effect even when interstate property is targeted.

“No, your honor,” Jones said.

Then how “do you explain your answer that ‘effect' is the key word here?” Kennedy asked.

“You just concluded that it isn't,” Kennedy said.

Alito asked Jones whether Congress intended “to exercise the full measure of its authority” under the commerce clause in enacting the Hobbs Act.

The high court's precedents tells us that it did, Jones said.

Confused by Jones, Kagan said she was “trying to figure out what we're disagreeing about.”

‘Don't Argue That!'

Alito asked Jones if a jury would need to interpret the commerce clause or the validity of Raich under his view.

Jones answered negatively, saying he simply wanted the trial court to assess evidence concerning whether the robbery victims were drug dealers.

“Well, that seems to me a different kind of argument that you're making now,” Kagan said.

Kennedy was similarly confused, appearing frustrated.

“I don't understand where we're going here,” Kennedy said.

Jones argued that the victims weren't drug dealers, but “that's not the question presented,” Kennedy said.

“Your question presented assumes” that drug dealers were targeted, “so don't argue that!” Kennedy said forcefully.

Roberts's Doubts Reasonable?

It's difficult to “come to any other conclusion” than that robbery of marijuana, which the federal government can regulate under the commerce clause, is “a robbery that affects commerce,” Anthony A. Yang of the Department of Justice, Washington, representing the federal government, said.

“Well, except that Congress doesn't have to prove” an effect on commerce to exercise its jurisdiction to merely regulate marijuana, Roberts said.

But if the federal government is “prosecuting somebody, you do have to show beyond a reasonable doubt that the elements of the crime have been satisfied,” Roberts said.

Congress's jurisdiction to regulate must only satisfy “a rational-basis standard,” Roberts said.

“Beyond a reasonable doubt” is “a much more daunting standard of proof,” Roberts said.

Single Joint Enough?

Alito asked Yang whether the robbery of a single marijuana cigarette could be prosecuted under the Hobbs Act.

Yang said that was a different question that he didn't need to address here.

Taylor's case involved not a single cigarette but the “robbery of the commodity, marijuana, from people engaged in its trade,” Yang said.

Jones picked up on Alito's question, saying that if there were no limits on the Hobbs Act's interstate commerce element, robbery “of a single joint” could “possibly trigger a Hobbs Act conviction.”

Kennedy again questioned the relevance of Jones's argument, saying “That isn't this case.”

“This case is a robbery of a drug dealer, correct?” Kennedy asked.

“That's correct,” Jones said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

The transcript is available at http://src.bna.com/cOm.

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