Tuesday, September 27, 2005
Ninth Circuit to Review Hobbs Act Jurisdiction Issue En Banc
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has agreed to review en banc a ruling that a drug dealer’s activities had an effect on interstate commerce sufficient to support a conviction under the Hobbs Act.
In a brief order issued late Friday, Chief Judge Mary M. Schroeder said a majority of the court’s active, unrecused judges had voted to reconsider the May 2004 decision of a three-judge panel in the case. Ninth Circuit en banc reviews are conducted by 11-judge panels.
One member of the 2004 panel had urged en banc review, saying the per curiam majority opinion in the case — though it reached a correct result — improperly ignored an earlier appellate ruling.
In the 2004 per curiam opinion, the court said that John L. Lynch’s actions in transporting illegal drugs from one state to another, traveling from one state to another in a rented vehicle, using interstate telephone lines to lure a victim from one state to another to rob him of money and drugs, transporting a firearm across state lines, using a debit card to withdraw money in several states from the victim’s bank account in another state, traveling from one state to another in defendant’s stolen truck, and renting a vehicle in one state to transport a disabled truck to another state had a direct effect on interstate commerce.
Either a direct or an indirect effect is needed to support a conviction under the Hobbs Act, which provides that anyone who “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion, or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section” is guilty of a federal crime. Federal courts have developed separate standards for determining when each type of effect is present.
The appeal ruled on in 2004 was Lynch’s second. His first appeal was decided in 2002, with an appellate panel ruling in United States v. Lynch, 282 F.3d 1049, that more findings were required to determine whether the indirect effect test was satisfied. After a federal judge in Montana made those findings, Lynch again appealed.
This time a different panel of appellate judges found that the evidence presented at Lynch’s trial satisfied the requirements for a direct effect. The court noted that the 2002 panel had not reached that issue.
Judge Marsha S. Berzon concurred separately in the 2004 per curiam opinion, saying that while its analysis of the law was correct, it improperly ignored the 2002 panel’s ruling. That panel, Berzon said, “held unequivocally that robbery of individuals can only be prosecuted under the Hobbs Act” if the requirements for indirect effect are met.
“While there is no law-of-the-case problem here, as the per curiam opinion notes,” Berzon wrote, “...we cannot avoid the fact that the rule concerning Hobbs Act jurisdiction announced in Lynch I is the law of the circuit.”
“As a three judge panel, we are powerless to rewrite Lynch I to apply, as it should, to (at most) indirect-effects cases....Rather, our only recourse would be to call as a panel for en banc review of Lynch I, explaining that the standard there adopted cannot be reconciled with Commerce Clause principles as announced in recent Supreme Court cases.”
But Berzon said that, even applying Lynch I, she agreed with her colleagues — Senior U.S. District Judge Justin L. Quackenbush of the Eastern District of Washington, sitting by designation, and Judge Michael Daly Hawkins — that Lynch’s conviction should be affirmed.
Evidence at Lynch’s trial supported the view that the rule stated in United States v. Rodriguez, 360 F.3d 949 (9th Cir. 2004), should be applied, Berzon explained. Rodriguez, she said, held that “drug trafficking-related crimes” are “outside the purview of the rule regarding robbery of individuals announced in Lynch I.”
Berzon conceded that the result for which she argued was “not consistent with the remand language of Lynch I,” but she declared:
“Law of the case...gives way when there are intervening legal developments affecting the propriety of an earlier order in a case....Rodriguez is, in my view, such a legal development. That Rodriguez interprets the very opinion, Lynch I, that would otherwise govern this appeal as law of the case does not seem to me to matter; Rodriguez is a plausible reading of Lynch I, and should be applied to all later appeals, including this one. Applying an after-decided case that is consistent with Lynch I is quite different from applying a rule of law different from the one announced in Lynch I.”
The case is United States v. Lynch, 02-30216.
Copyright 2005, Metropolitan News Company