Taylor v. United States

Oral argument transcript · No. 14-6166 · October Term 2015 · argued February 23, 2016 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Dennis E. Jones, Abingdon, Va., for the petitioner
• Anthony A. Yang, Assistant to the Solicitor General, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 14­6166, Taylor v. United States. Mr. Jones. ORAL ARGUMENT OF DENNIS E. JONES ON BEHALF OF THE PETITIONER

Dennis E. Jones: Mr. Chief Justice, and may it please the Court: The Hobbs Act has two elements. The first requires that the accused to obtain property from another by either extortion or robbery. The second is the jurisdictional element, in that the consequence of either the extortion or the robbery creates an interference with commerce. The effect on commerce is the jurisdictional element of the crime, and like all elements, it must be proven beyond a reasonable doubt through the introduction of particularized evidence necessary to establish this element. In the case ­­ in this case the government was not required to prove the effect­on­commerce element, which ultimately resulted in the conviction of Mr. Taylor. Alderson Reporting Company Official

Justice Ginsburg: One of the things you say in your brief is that you were not even given the opportunity to show that the victims dealt exclusively in home­grown marijuana. If you ­­ if you had that opportunity, how will you have shown that this, the marijuana in question, was grown in Virginia rather than some other place, some other State?

Dennis E. Jones: Your Honor, they're ­­ in all likelihood, I would either call as a witness a retired DEA agent or an ATF agent or a retired local police officer who had years of experience in that field qualifying that person. Virginia is ­­ is a State, like all the other States, that has the ability to grow marijuana in­State. It's been going on for years and years and years. There's not necessarily ­­ we ­­ we cited in our brief not only the DEA statistics for a time period that's shown not only the amount of marijuana that was subject to the eradication plan of DEA in Virginia but also a couple of local news articles and events where in Botetourt County, I think the most current one was 2013, about the time we were before the Fourth Circuit.

Justice Ginsburg: And that could show that it could have been grown, but you could say that for Alderson Reporting Company Official 1 every State in the Union. But you made that ­­ you said you wanted to submit proof that the victims dealt exclusively in home­grown marijuana, and since every other State also has marijuana dealers, how could you ­­ how could you show exclusively, that this marijuana came exclusively?

Dennis E. Jones: We're ­­ for one thing, it could have cross­examined him on ­­ on that point. But pursuant to the motion in limine, I think trial counsel at that point believed that he ­­ he was precluded from even going into that area with ­­ with the victims.

Justice Kagan: Well, Mr. Jones, suppose you had been able to show this. Suppose you had been able to show that it was a dealer who dealt in intrastate marijuana exclusively. What difference would that have made under the terms of the Hobbs Act?

Dennis E. Jones: Under the ­­ under the terms of the Hobbs Act, the government would have borne the proof of going forward and ­­ and showing an effect on ­­ on interstate commerce with ­­ with that ­­

Justice Kagan: Well, you see, that's the thing. I mean, I don't think that the Hobbs Act requires the government to show an effect on interstate commerce. As you said in your opening statement, the Hobbs Act only requires an effect on commerce, and then Alderson Reporting Company Official 1 commerce is defined: Commerce means all commerce over which the United States has jurisdiction. Now, for sure the United States has jurisdiction over interstate commerce, but under Raich it also has jurisdiction over intrastate drug trafficking. And so if you just sort of put the pieces of the statutes together, it seems to make it completely irrelevant whether the drug trafficking was intrastate or interstate, because in either case, it was commerce over which the United States has jurisdiction.

Dennis E. Jones: I think the difference between ­­ I think what Hobbs addressed ­­ excuse me ­­ what Raich addressed was, of course, the Controlled Substance Act. Controlled Substance Act is ­­ is a matter of regulation of ­­ of interstate commerce and not so much ­­ did not address, as a ­­ as a separate issue, the effect on ­­ on commerce. So what the Hobbs Act in our view addresses is the effect, not so much the regulation. A ­­ a reading of ­­ of the Raich case, the ­­ the words ­­

Justice Kagan: But ­­ but doesn't the Hobbs ­­ doesn't Raich say that the government has ­­ Alderson Reporting Company Official 1 the United States has jurisdiction over intrastate drug trafficking?

Dennis E. Jones: It does, Your Honor.

Justice Kagan: So why isn't that enough? Because this statute, again, does not require that there be an effect on interstate commerce. It ­­ it affects ­­ it requires that there be an effect on commerce as defined in the statute. And as defined in the statute, all it says is that the commerce has to be one of a kind over which the United States has jurisdiction. And Raich says the United States has jurisdiction over even intrastate drug dealing.

Dennis E. Jones: Raich does say that, but the plain language of the Hobbs Act and the ­­ the essence of the crime itself is the effect. The word "effect" is used in the Hobbs Act. And even if ­­ if you ­­ by the regulation of commerce does not in and of itself have an effect on the commerce.

Justice Kagan: Well ­­

Justice Kennedy: Well, then you could make the same argument if it was conceded that these drugs were an interstate. You say, oh, well, you still have to show an effect. Is that what you're saying? Alderson Reporting Company Official

Dennis E. Jones: Yes, sir.

Justice Kennedy: Based on your answer to Justice Kagan, doesn't make any difference whether it's local or interstate.

Dennis E. Jones: Well ­­

Justice Kennedy: There is still a failure of proof somehow.

Dennis E. Jones: There is a failure of proof here.

Justice Kennedy: That's ­­ that's very hard ­­ that's very hard to comprehend.

Dennis E. Jones: Your Honor, there was no proof here. The ­­ the only proof that was admitted to record was ­­ was through ­­ through some police officers who ­­ who considered to be experts. There was some questions I think the dialogue ­­

Justice Kennedy: Do you ­­ do you think robbery of an item in interstate commerce has an effect on that commerce?

Dennis E. Jones: Do I think robbery of ­­

Justice Kennedy: Of goods in interstate commerce have an effect on interstate commerce? Or does the government in every case have to show that there is an effect.

Dennis E. Jones: I think if the goods are ­­ Alderson Reporting Company Official

Justice Kennedy: The government in every case in your submission has to show that if there's a robbery of goods in interstate commerce, that it has to put on an economic expert to show that there's an effect on interstate commerce when there's been a robbery. That's your position?

Dennis E. Jones: No, Your Honor. Not ­­

Justice Kennedy: All right. Well, then how do you explain your answer that "effect" is the key word here?

Dennis E. Jones: Well ­­

Justice Kennedy: You just concluded that it isn't.

Dennis E. Jones: In ­­ in the numerous cases that have been cited in our ­­ our brief, as well as the government's brief, you take for example the Tillery case that ­­ that is out of the Fourth Circuit. That was a ­­ that was a ­­ that was a robbery of a dry cleaner in the Portsmouth/Virginia Beach area of Virginia. I think it was about $40 taken in that robbery if I ­­ if I recall it correctly. The ­­ the effect on the commerce was the ability of ­­ of that business to purchase its coat hangers, for example. They came from China. They came from Mexico. There was also cleaning solvents that ­­ Alderson Reporting Company Official 1 that was purchased and used by that business that was manufactured and transported from Georgia to Virginia. The evidence in ­­ in those cases showed that whatever the subject or the ­­ of the commodity that was being sold or used by that particular enterprise had ­­ had traveled in interstate commerce, and in some instances the individual himself had traveled in interstate commerce. So you had evidence to that fact.

Justice Ginsburg: Suppose ­­ suppose the victims of this robbery, the drug dealers, ­­ suppose the police had a warrant to go into the house and they ­­ there is marijuana there and they take it. Could the victims ­­ who were they? They were Worley or Lynch ­­ could they be prosecuted or could they not be prosecuted because the government was unable to show that the marijuana they possessed came from out of State?

Dennis E. Jones: Could Worley or Lynch have been prosecuted as a drug dealer?

Justice Ginsburg: Yes.

Dennis E. Jones: Yes, Your Honor. I think they could have been.

Justice Ginsburg: They could have been, even though ­­ even though all of the marijuana came from Virginia? Alderson Reporting Company Official

Dennis E. Jones: I think they could have been under ­­ under the Controlled Substance Act under Title 21.

Justice Alito: Under ­­ when Congress enacted the Hobbs Act, did it intend to exercise the full measure of its authority under the Commerce Clause?

Dennis E. Jones: History tells us that it did, I think, and this Court's precedence tells us that it did.

Justice Alito: All right. Could Congress enact a statute under ­­ under Raich, based on the reasoning of Raich, prohibiting the theft of a controlled substance just as it has put ­­ enacted statutes prohibiting the growing of marijuana or the production of other controlled substances?

Dennis E. Jones: Excuse me. Could it have ­­

Justice Alito: Could it enact a statute that makes it a crime to steal a controlled substance, exercising its Commerce Clause authority under the reasoning of Raich?

Dennis E. Jones: It could have, but with ­­ from our view. However, you would still have to show that effect, that impact, that influence on ­­ on the marijuana or drug trafficking.

Justice Alito: On a case­by­case basis. Then why can it prohibit the growing of marijuana across Alderson Reporting Company Official 1 the board without proving anything about the particular marijuana in question, but according to you, it cannot prohibit the sale of ­­ I'm sorry, the theft of marijuana?

Dennis E. Jones: Well, I ­­ I think our position is that it's ­­ it's the effect, and ­­ and the ­­ the effect can ­­ can come about in ­­ in many ways that's been addressed. You can have a reduction on ­­ on the movement of marijuana from one State into your State, because there's ­­ there's no need for it, but that would require evidence as to that effect or that interference or that ­­ even the influence on ­­ on the commerce piece of it.

Justice Alito: Why is that needed ­­ why is that not needed in a situation in which the person is growing marijuana? For personal use?

Dennis E. Jones: From our view, the ­­ 21 U.S.C. 801 regulates all drugs. And there's a difference in regulating from our ­­ in our view, there's a difference in that regulation component from what the effect on interstate commerce is, itself. They're standalone elements, from our view. And since it's a criminal element that must be proven beyond a reasonable doubt, if you stop just at the robbery and say that as a result of the subject of that robbery being a drug dealer in Alderson Reporting Company Official 1 toto, without looking at the specific piece of what the drug dealer is doing business in, and whether it's traveled in interstate commerce, or whether it's, for example, methamphetamine. When you manufacture methamphetamine, which you clearly ­­ controlled under the Controlled Substance Act, those ingredients, Coleman fuel, lye, phosphorous, they all travel in interstate commerce. And the fact that they have done that ­­ been in ­­ been in that travel in that commercial lane triggers the Controlled Substance Act to ­­

Justice Kagan: Mr. ­­

Dennis E. Jones: ­­ prohibit.

Justice Kagan: Mr. Jones, I guess I'm trying to figure out what we're disagreeing about. So let me give you a proposition, and you tell me whether you agree with it. The Hobbs Act prohibits robberies that affect marijuana trafficking, whether the marijuana trafficking is interstate or intrastate. Do you agree with that?

Dennis E. Jones: I disagree with that.

Justice Kagan: But why is that? Because that's what I was saying at the beginning, that it seems clear to me that under the terms of the Hobbs Act, the Hobbs Act does prohibit robberies that affect commerce. Alderson Reporting Company Official 1 Raich says commerce includes both interstate and intrastate marijuana trafficking. So the Hobbs Act prohibits robberies that affect marijuana trafficking generally, whether it's interstate or intrastate. What's there to disagree with in that?

Dennis E. Jones: I ­­ I agree from the standpoint that the Controlled Substance Act under Raich regulates. But beyond that point, what the Hobbs ­­ if Congress had wanted to use the word "regulate" rather than "affects" ­­

Justice Kagan: Well ­­

Dennis E. Jones: ­­ Congress could very easily have done that.

Justice Kagan: Well, but I said ­­ I used the word "affects." I didn't use the word "regulate." I said the Hobbs Act prohibits robberies that affect commerce. Commerce is either interstate marijuana trafficking or intrastate marijuana trafficking under the definition in this statute. So you ­­ the government has to show that a robbery affected some kind of marijuana trafficking. It doesn't matter what kind. Wouldn't you agree with that? I mean, it just seems ­­

Dennis E. Jones: Yeah. I ­­ I ­­

Justice Kagan: ­­ it's the current of the statute plus Raich. Alderson Reporting Company Official

Dennis E. Jones: Right. It's ­­ it's the commodity that's the subject of the robbery that has to ­­ has to affect. And if ­­ if Congress ­­ if ­­ if the Hobbs Act, in the plain language of it ­­ and I think we're talking about the very last phrase, commerce that's regulated by Congress, in ­­ in that situation, if the commodity itself is a standalone, if that's the interpretation of the statute, then commerce is affected by ­­ by the taking of ­­ of the commodity subject just because it's regulated, nothing more.

Justice Kagan: Well, I guess this goes back to Justice Kennedy's question. I mean, seems to me pretty self­evident that a robbery of a business affects a business. Wouldn't you think that that's right?

Dennis E. Jones: Yes ­­

Justice Kagan: I mean, I don't think that the word "affects" is doing a whole lot of work here, because of course a robbery of a business affects a business, right?

Dennis E. Jones: Yes, ma'am.

Justice Kagan: Okay. So ­­ so it's not really "affects" that's the problem here. The problem seems to be that you're resisting the notion that the business could be entirely intrastate. But what I'm suggesting is that the terms of Alderson Reporting Company Official 1 the Hobbs Act itself, given Raich, make clear that the business can be intrastate, because the definition of commerce here doesn't say "interstate commerce." It says "commerce over which the United States has jurisdiction." And because of Raich, we know that the United States has jurisdiction over even intrastate drug dealing.

Dennis E. Jones: Yes, Your Honor. I agree with that.

Chief Justice Roberts: What ­­ what is the ­­ the standard of proof that you hold Congress to when it exercises jurisdiction over intrastate businesses with an effect on interstate commerce or interstate commerce? Somebody challenges Congress's exercise of jurisdiction because it doesn't fit within the interstate commerce or effect on interstate commerce, and the statute's evaluated according to what standard?

Dennis E. Jones: I'm not sure that I understand the question, Mr. ­­

Chief Justice Roberts: Well, somebody says ­­ you know, challenges ­­ as we've had challenges, in cases like Lopez and others ­­ that, Congress, you don't have authority to regulate this matter, because it doesn't involve interstate commerce, doesn't have an Alderson Reporting Company Official 1 effect on interstate commerce, and so on. But how do we ­­ how do we evaluate that? Does ­­ well, does Congress have to prove beyond a reasonable doubt that the ­­ there is an effect on interstate commerce?

Dennis E. Jones: In ­­ in congressional hearings, the congressional hearings that we have, and the conclusions that they come to after they go through that process and there's satisfaction of that, they promulgate the law. But if they create in ­­ in the passage of ­­ of that acts; for example here, the Hobbs Act is what we're saying is the ­­ is the plain reading of it, is that if ­­ if in their wisdom the element is to establish this element, then it becomes an element of the criminal offense. And it's not so much the element of the regulation, but it's the element of the criminal offense. And when you have the element of the criminal offense, then I fall back, or it's our view that then the Fifth and Sixth Amendments of the Constitution give precedent. And if Congress has not provided for that element in there, then we believe that ­­ that this Court is the place to have that addressed.

Justice Alito: I don't think there's any Alderson Reporting Company Official 1 question that this is a jurisdictional element and the jurisdictional element has to be proven. That's not the issue. The issue is the meaning of the jurisdictional element. And if the jurisdictional element means, as interpreted in Raich, and it's a ­­ you know, it's a controversial area of constitutional law, but it's a precedent and you're not challenging it ­­ so the jurisdictional element as interpreted in that case is anything that has an effect on ­­ anything ­­ any purely ­­ any local activity that is of a type which, if taken in the aggregate, would have a substantial effect on interstate commerce, that falls within the Commerce Clause. If the jury is instructed in that way, and that's basically the way I think it was instructed here, all they have to find is that there was a theft of ­­ there was a robbery of drugs, and it had some effect on the supply of drugs.

Dennis E. Jones: In this case I think they were instructed that our ­­ our view of that instruction was that it was a per se or strict liability instruction; that if ­­ if ­­ because in that instruction, it's my recollection that Judge Conrad said, I tell you that if this happened, this is satisfied. Alderson Reporting Company Official

Justice Alito: Yeah, well, that's ­­ that's the ­­ that's what Raich ­­ that's the interpretation of the Commerce Clause. Do you want the jury to decide what the Commerce Clause means? It would be an interesting ­­ under those who ­­ who think that juries once upon a time had the authority to decide legal issues. Do you want them to decide whether the majority or the dissent was correct in ­­ in Gonzales?

Dennis E. Jones: No, sir, I would not. What I would ­­ what I'd like to have an opportunity in ­­ in this case was to address what we typically see as facts that constitute whether you're a drug dealer or whether you're not. And in this case there wasn't. If you ­­ if you take ­­ if you look at the evidence that was ­­ that was produced, it's ­­ it's been embellished. But ­­ but the plain reading of the testimony ­­ for example, in the Lynch case, there was no showing that ­­ that the ­­ that they had actually been engaged in a drug dealing enterprise. It was rumored that a person had been robbed, not Mr. Lynch but a person had been robbed at some point in time in the past, I think of 20 pounds of marijuana. In ­­ in the Worley case it was ­­ it just stated you ­­ you couldn't go anywhere that Mr. Worley Alderson Reporting Company Official 1 had acknowledged selling marijuana one time, about three or four years prior to this instance. There was simply no showing in the evidence of this case that you even had a commercial enterprise going, being conducted at either one of these residences. It's ­­ it ­­ it was an inference upon an inference.

Justice Kagan: Well, that seems to me a different kind of argument that you're making now. Now you're not saying that the question is whether the marijuana that was being dealt was intrastate or interstate. Now you're suggesting that what you really wanted to prove was that this person wasn't a dealer at all; is that correct?

Dennis E. Jones: That's ­­ that's ­­ that's ­­ that's where we got here on this case, was ­­ was the absence of particularized evidence as to what was ­­ what was taking place here. And we weren't able to, pursuant to the rulings, we simply were not able to address that.

Justice Ginsburg: Wasn't there evidence that this gang, that they were in ­­ in the business of trying to rob drug dealers because they thought they'd find either the drugs or the money?

Dennis E. Jones: Mr. Fitzgerald, who, from the evidence of this case, I believe to be an organizer or Alderson Reporting Company Official 1 certainly one of the leaders in this ­­ in this group of individuals. Our client, Mr. Taylor, he ­­ he was added, I believe the evidence shows, for ­­ for these two events. And the evidence in that case ­­ and judge ­­ even Judge Conrad, I ­­ I sense that he became a little frustrated and he tried to clear it up, because when you start reviewing the evidence concerning the Worley robbery ­­ when you start considering the evidence concerning the Worley robbery, Mr. Fitzgerald's testimony is, I don't know what's there. I don't know what to expect ­­

Justice Kennedy: I don't ­­ I don't understand where we're going here. It seemed to me a few minutes ago you said, oh, there's no evidence that he was a drug dealer. But that's not the question presented. Your question presented assumes that he's a drug dealer, so don't argue that.

Dennis E. Jones: I'm ­­ I was trying ­­ I ­­

Justice Kennedy: So we know that there's a drug dealer here. We take the case on that basis.

Dennis E. Jones: Yes, sir.

Justice Kennedy: All right. So we're talking about the interstate and local. So it seems to me that you've ­­ you just have not raised the point Alderson Reporting Company Official 1 that there was no evidence that he was a drug dealer.

Dennis E. Jones: Well, what ­­

Justice Kennedy: It's not in your petition.

Dennis E. Jones: Our ­­ our point in our petition was ­­ is that there was a failure to present particularized evidence of the impact or the effect on ­­ on interstate commerce as a result of the activities of these people, and we were precluded from addressing that. The whole theory of the case in ­­ when it was presented in the district court, was ­­ was twofold; number one, that this interstate ­­ that the interstate commerce element had ­­ had not been met, and that there was no particularized evidence to show that this influence or this impact on commerce. May I reserve?

Chief Justice Roberts: Certainly, Mr. Jones. Mr. Yang. ORAL ARGUMENT OF ANTHONY A. YANG ON BEHALF OF THE RESPONDENT

Anthony A. Yang: Mr. Chief Justice, and may it please the Court: Three characteristics of Petitioner's robberies underscore that this case falls within Alderson Reporting Company Official 1 Congress's Commerce Clause power. Petitioner's robberies targeted, first, the inventory in a commodity; two, that inventory belonged to a commercial participant; and third, it was a commercial participant in an established interstate market in marijuana that is a Federally­controlled substance over which Congress has exercised jurisdiction.

Chief Justice Roberts: So if it weren't commercial aspect, then you wouldn't ­­ you wouldn't ­­ you would have to demonstrate jurisdiction beyond a reasonable doubt?

Anthony A. Yang: No. I think there ­­ what ­­ when you get out of the commercial sphere, the courts of appeals have drawn a distinction between robberies of businesses that are engaged in commerce, as the victims were here, and true individuals who just get robbed. And I think the courts have fairly uniformly recognized that the ­­ while the robbery of a business is kind of economic in nature and more directly implicates Commerce Clause concerns, when there's a robbery of an individual, the links are much more attenuated and there's a longer chain of causation to get to commerce. And so in those contexts, even within the Alderson Reporting Company Official 1 depletion of assets theory that my brother espouses before the Court, the courts have said, as a normal matter, robberies of individuals just don't fall within the Commerce Clause. But what we have here is the robbery of marijuana, which we know from Raich, Congress regulates the trade in marijuana. It's in the marijuana trade. It's difficult to, I think, come to any other conclusion, that the robbery of such marijuana from marijuana dealers engaged in trade over which commerce has jurisdiction is not a robbery that affects commerce over which the United States ­­

Chief Justice Roberts: Well, except that Congress doesn't have to prove beyond a reasonable doubt before exercising its jurisdiction that there's an affect on interstate commerce.

Anthony A. Yang: That ­­ that's what ­­

Chief Justice Roberts: But if you're prosecuting somebody, you do have to show beyond a reasonable doubt that the elements of the crime have been satisfied.

Anthony A. Yang: Well, what you do need to show is that the robbery affected commerce over which the United States had jurisdiction. And we know ­­

Chief Justice Roberts: Beyond a reasonable Alderson Reporting Company Official 1 doubt.

Anthony A. Yang: Beyond a reasonable doubt. But we do know that Congress ­­ that ­­ from Raich, that Congress does have jurisdiction over the entire marijuana trade. Now, the reason Congress has jurisdiction, as Raich explain ­­ Raich explained, was it now analyzed under the rational­basis review that often occurs in this type of context. But the fact of the matter is, at the end of the day, there is no doubt, it is a certainty, that Congress has jurisdiction over the marijuana trade. And so when you rob ­­

Chief Justice Roberts: Yes, I ­­ I suppose it's a ­­ maybe an academic question, but your conclusion that Congress has jurisdiction over the marijuana trade is based on a different standard of proof than the criminal one. So yes, you can say of course Congress has jurisdiction here, but that has been established only under, I guess, a rational­basis standard. But now you have to show Congress has jurisdiction pursuant to a much more daunting standard of proof.

Anthony A. Yang: We're not shying away from the standard of proof. But what ­­ as we explained, the question of whether a robbery affects interstate Alderson Reporting Company Official 1 commerce has both legal elements as well as factual elements. The factual elements, as we explain in our brief in this case, involve: Did the robbery occur? Were they robbing and targeting the marijuana of marijuana dealers? But the legal question ­­ which judges every day instruct juries under what the law is, and Gaudin teaches us that juries must follow those instructions ­­ the legal conclusion is that the United States has jurisdiction over the entire marijuana trade. Now, there would be strange anomalies if juries were allowed to relitigate Raich in every case. Is there an affect ­­ you know, does Congress have jurisdiction over intrastate commerce? Juries would be coming up with divergent results over the question whether Congress has jurisdiction over intrastate marijuana trade, contrary to Congress's own decision in the decision of this Court. That is a purely legal question. It is ­­ you can prove beyond a reasonable doubt that Congress has jurisdiction over the marijuana trade by looking at Raich. That's a legal question ­­

Justice Kennedy: So what's ­­ what's the instruction that the Court should give to the jury with Alderson Reporting Company Official 1 respect to this jurisdictional element? "Ladies and gentlemen of the jury, you've heard evidence that there was a robbery of a drug dealer. I ­­ you are instructed as a matter of law" ­­

Anthony A. Yang: You are ­­ JUSTICE KENNEDY ­­ "that" ­­

Anthony A. Yang: ­­ that the marijuana trade ­­

Justice Kennedy: ­­ "that the marijuana trade is a subject over which the Congress has jurisdiction and this statute controls"? That's not a very good interpretation.

Anthony A. Yang: Well, I think you would ­­ I think that ­­ I think that goes a long way there. I think the ­­ the judge would instruct the jury that the marijuana trade is Congress ­­ commerce over which the United States has jurisdiction.

Justice Kennedy: And there's ­­ there's nothing for the jury to find on this point?

Anthony A. Yang: Not on that point. But the jury must determine that there was ­­ the robbery affected jurisdiction, of which ­­

Justice Ginsburg: Was it ­­ was there a jury involved in this case, or that ­­ was this on a plea?

Anthony A. Yang: There was a jury. Alderson Reporting Company Official

Justice Ginsburg: There was a jury? So what ­­ so we don't have to speculate. What did the judge charge?

Anthony A. Yang: Well, the judge's instructions, I think, could have been more clear. This case, of course, is a challenge to the sufficiency of the evidence, not the jury instructions.

Justice Ginsburg: Well, what was the ­­

Anthony A. Yang: But the jury instructions are ­­ are basically on page 8 of our brief. We've replicated the most relevant portions of the charge. And, you know, there are the standard instructions about the government has to show the jurisdictional element beyond a reasonable ­­ beyond a reasonable doubt and establish that the Court defined "commerce" to mean commerce over which the United States has jurisdiction, and then said that that could be satisfied by reducing the ­­ having a ­­ showing an affect, and that affect can be ­­ you know, I think there's ­­ in here is quite ­­ any kind of affect would be sufficient. And then there was an explanation that, you know, the ­­ the reduction of articles or commodities in interstate commerce, in this case illegal drugs and drug proceeds. So ­­

Justice Kennedy: Well, it ­­ it seems to me Alderson Reporting Company Official 1 that this instruction is much more defendant­friendly than the one you indicated that is a minimum. In other words ­­

Anthony A. Yang: Friendly ­­

Justice Kennedy: ­­ I read this ­­ if ­­ if I'm the juror, I read these instructions as saying that I have to find that this affects interstate commerce.

Anthony A. Yang: I think the judge could have done ­­ had a much more government­friendly instruction in this case. And in fact, given Raich, the judge, as ­­ as I was just explaining, could have instructed the jury that the ­­ all the marijuana trade, that is both the actual trade within and intrastate trade, is commerce over which the United States has jurisdiction.

Justice Kagan: But ­­ but if ­­ if ­­ if I can make sure I understand. The jury is told that you have to find beyond a reasonable doubt that this defendant affected commerce over which the United States has jurisdiction.

Anthony A. Yang: Correct.

Justice Kagan: Is that right?

Anthony A. Yang: That is correct.

Justice Kagan: Does that have ­­

Anthony A. Yang: The jury could ­­

Justice Kagan: ­­ to be found beyond a Alderson Reporting Company Official 1 reasonable doubt?

Anthony A. Yang: It has to find that jurisdiction element beyond a reasonable doubt. That has actual ­­

Justice Kagan: But whether the United States has jurisdiction over the marijuana trade, be it inter­ or intrastate, has already been decided by Raich.

Anthony A. Yang: Correct. I mean, this is no different than, say, if there's a murder on the special and maritime jurisdiction of the United States. The judge will say, what is the special and maritime jurisdiction of the United States? Will instruct the jury what that is. The jury then makes the relevant historical facts to the case, and applies that legal instruction to the facts in order to find the relevant jurisdictional ­­

Chief Justice Roberts: Is ­­

Anthony A. Yang: ­­ element beyond a reasonable doubt.

Chief Justice Roberts: Is the defendant allowed to present any evidence to the contrary?

Anthony A. Yang: Well, on our ­­

Chief Justice Roberts: It would be kind of silly to say they've got to prove something beyond a reasonable doubt. All the United States has to do is Alderson Reporting Company Official 1 this, and then ­­ and the judge instructs the jury that they've satisfied that burden?

Anthony A. Yang: The defendant is entitled to present evidence that contradict all the relevant facts. But the ­­ I think what you're asking about is whether the fact that this particular marijuana might have been grown in­State ­­ right? I think that's what you're saying ­­ would somehow undermine the jurisdictional element. And as a matter of law, it does not.

Chief Justice Roberts: What ­­

Justice Kagan: Is it ­­

Chief Justice Roberts: ­­ in any ­­ in a marijuana case, what evidence could a defendant put on that would prevent the establishment of the jurisdictional element?

Anthony A. Yang: The defendant could show that there was not an attempt to rob a drug dealer of marijuana.

Chief Justice Roberts: No. That goes to the first question of whether there was a robbery: Was there a robbery? Did it have an affect on ­­ on commerce within the jurisdiction of the United States?

Anthony A. Yang: Right.

Chief Justice Roberts: Is there any Alderson Reporting Company Official 1 evidence that a defendant could be allowed to introduce going to the second element?

Anthony A. Yang: Well, if they were targeting marijuana in that robbery, as was the case here, from marijuana dealers who were trading ­­

Justice Kagan: But that's the question, Mr. Yang: From marijuana dealers. I mean, it seems to me the defendant could say, no. I was targeting a home grower. You know, the kind of person from Raich. I just ­­ I was growing this marijuana for myself. I had no intention of ever selling it. At that point, you wouldn't be robbing somebody who was engaged in commerce, right?

Anthony A. Yang: Or, I was just robbing a house, and I happened to stumble upon this. I mean, there are ­­

Justice Kagan: There are ­­

Chief Justice Roberts: Yes, but those are two very different things. Robbing a house and stumbled upon is one thing, but if you have somebody who is robbing marijuana that's grown for home consumption or whatever, can the defendant say the jurisdictional element is not satisfied because of that?

Anthony A. Yang: Well, I think home consumption Alderson Reporting Company Official 1 raises different issues, and I'll ­­ I'll tell you why. The Hobbs Act governs robberies that have an affect on commerce over which the United States has jurisdiction. There's some question whether just growing marijuana for your own use by itself is commerce, or whether it's an activity that affects commerce that would bring it within ­­

Justice Kennedy: Let's say ­­

Anthony A. Yang: ­­ the element of Raich.

Justice Kennedy: Let's ­­ let's say that this Court had a decision that home­grown marijuana has an affect on interstate commerce. Let's say that that's ­­ then there's a trial. What instruction ­­ can ­­ can any evidence be introduced?

Anthony A. Yang: Well, if the Court had said that just growing marijuana ­­

Justice Kennedy: Contest commerce part ­­ part of the indictment?

Anthony A. Yang: I ­­ I think if you're ­­ if you're asking whether the Court has decided that growing marijuana is itself commerce over which the United States has ­­

Justice Kennedy: Let's ­­ let's assume ­­ let's assume the Court has decided that ­­

Anthony A. Yang: Well, then there ­­ there's ­­ Alderson Reporting Company Official

Justice Kennedy: ­­ and then there's a trial. Is ­­ is the defendant entitled to introduce any evidence on that point?

Anthony A. Yang: No.

Justice Kennedy: So ­­

Anthony A. Yang: Because that's a legal ­­

Justice Kennedy: So does the jury have any discretion to ­­ to return a verdict of not guilty if it finds that there was a robbery of a drug dealer ­­ of ­­ of ­­ of drugs that have been home grown?

Anthony A. Yang: Under your predicate, no, there would not. I mean, this is ­­

Justice Kennedy: What ­­

Anthony A. Yang: This is not new in the law, right? I mean, juries are instructed on the law. They determine any of the relevant facts that would be relevant to the elements of the offense, but they have to do that within the framework of the law as instructed by the judge.

Chief Justice Roberts: Well, it may ­­ that may be familiar in the law, but I'm not aware of any case where the burden is on the government to prove something beyond a reasonable doubt, an element of the crime, and you're saying there's no way that the Alderson Reporting Company Official 1 defendant ­­ no evidence that defendant could introduce ­­ could rebut the government's showing, in any case.

Anthony A. Yang: I don't ­­

Chief Justice Roberts: What ­­ what's your best authority for that proposition?

Anthony A. Yang: I guess it depends on what you consider to be the element of the offense and how you define it as a legal matter. What we're ­­ what we're saying is the jury does have to find beyond a reasonable doubt that the jurisdictional element was met. But just as if Congress, for instance, as it ­­ as it could, could directly prohibit ­­ if Congress directly prohibited robberies of marijuana from marijuana dealers, Statute 18 U.S.C. 10,000­something, that prohibits that, and it says the jurisdictional element of this case is that the robbery ­­ is that the robbery has to target marijuana of a marijuana dealer, the jury would be deciding precisely that. And here, what we have is the same type of thing through the Hobbs Act, which I believe my brother has admitted both at, I think it's page 18 of his brief and at oral argument, extends to the full extent of the Commerce Clause. The whole purpose of enacting a Alderson Reporting Company Official 1 "affects commerce" provision is so you don't go through and have Congress ­­ the burden of it, you know, then drug dealers and we have to do, you know, robberies of this business and that. Congress exercised the full scope of its power. And so ­­

Justice Ginsburg: Does the government have to prove anything in this case different from what it would have to prove if this was a charge of robbery under State law?

Anthony A. Yang: Well, yes. I mean, a robbery under State law wouldn't be relevant, at least under our theory of the jurisdictional ­­ it doesn't matter whether it's marijuana or whatever. It would just be a robbery of an individual within the definition of robbery. But here, in order to ­­ the additional proof which is relevant to the jurisdictional element is that the robbery targeted the marijuana of marijuana dealers. And by the nature of the targeting of a commodity, the inventory of a commercial entity engaged in an interstate business that Congress regulates, as this Court ­­

Justice Ginsburg: Still, it's very odd that this is a Federal case. I mean, they ­­ in fact, they took, what, a couple of cell phones, $40?

Anthony A. Yang: What you're seeing is part of the Alderson Reporting Company Official 1 whole Federal investigation here, if you remember that this was an investigation into the Southwest Goonz, which was a gang that was engaged in particularly violent and dangerous robberies in Roanoke. The DEA tracked about 30 home invasions to this gang. There were other prosecutions. This particular defendant was a bit of a tagalong, and he was prosecuted. But the main participants in this endeavor, which ­­ you know, the DEA was contacted by local law enforcement which said this is becoming a serious problem in Roanoke, and DEA came in and busted this gang. This is just one particular defendant.

Chief Justice Roberts: The tagalong, he got 20 years.

Anthony A. Yang: Well, and he was involved in some very serious crimes. Actually, I think 30 home invasions.

Justice Kennedy: Actually ­­ actually, I think got 21, my chambers was telling me. You might check that. Which is, to me, one ­­ one year too many, but whatever.

Chief Justice Roberts: A year's a year.

Justice Kennedy: Going ­­ going back to this case, the example that you gave with reference to the maritime jurisdiction, what you tell the jury is, Alderson Reporting Company Official 1 ladies and gentlemen of the jury, if you find that the incidents that have been considered in this court occurred on the high seas, then the jurisdictional element is satisfied.

Anthony A. Yang: Yes. And you'd probably have to define what the high seas were as well.

Justice Kennedy: Pardon me?

Anthony A. Yang: You'd also have to define what the high seas were for the jury.

Justice Kennedy: Okay. Then in this case, it suffices, in your view, if you say if you find there was a robbery of a drug dealer, then the jurisdictional element is satisfied?

Anthony A. Yang: We think it's a little easier than that in this case. If you find that there was a robbery targeting the inventory, the marijuana of a drug dealer engaged in the trade of that marijuana, then it's ­­ there's a very direct and I think undeniable effect on ­­

Justice Kennedy: And the only defense evidence that could be introduced in the case is that the ­­ that the drugs were not involved? The defense could show that drugs were not involved.

Anthony A. Yang: They could, and that would target direct ­­ there were other ­­ Alderson Reporting Company Official

Justice Kennedy: But that's about all they can do with reference to the jurisdictional element?

Anthony A. Yang: I think that's right in this particular case because that's the only factual question that's really relevant.

Justice Kagan: Well, maybe the person wasn't a dealer.

Anthony A. Yang: Yes, that's ­­ yes.

Chief Justice Roberts: I'm sorry. Did you concede that earlier, that it's not covered by the Hobbs Act if the person's not a dealer?

Anthony A. Yang: Well, I didn't concede it. What I said is you'd have to have a different theory.

Justice Kagan: You said it was a very different thing.

Anthony A. Yang: It was a different thing. And it supports ­­

Justice Kagan: And it would be a much harder thing.

Anthony A. Yang: It would be harder.

Justice Kagan: And it would be at least an awfully good argument by the defendant that if the person was not a dealer, it's not affecting commerce in the regular ­­ in the relevant way?

Anthony A. Yang: That's correct. Alderson Reporting Company Official

Chief Justice Roberts: Even though Congress can regulate that transaction?

Anthony A. Yang: Well, there ­­ there would be a question. I think that there are arguments to be made that would go beyond the arguments that we're making here, and we're not pressing those today for various reasons. I think as the Court has recognized, this is an area of some difficulty at times. Lopez recognizes that commercial power is necessarily one of degree, and that the Court's decisions have not provided precise formulation in the nature of things it cannot. And so what we're ­­ the Court ­­ I'm sorry ­­ but the Court's taken an incremental approach, and we're doing something similar here.

Justice Alito: I asked Mr. Jones whether the Hobbs Act exercises the full measure of Congress's Commerce Clause, an authority which I thought a number of cases have said. Do you agree with that?

Anthony A. Yang: It does. It does. Not only that, but I think ­­

Justice Alito: Because then you do run into these limitation ­­ in the search for a limiting principle, which you seem to be addressing. So Congress could prohibit and has prohibited a person from possessing even a very small amount of marijuana, right, Alderson Reporting Company Official 1 a single cigarette, a single marijuana cigarette?

Anthony A. Yang: That's correct.

Justice Alito: So if one person steals a marijuana cigarette from another person, robs that person of one marijuana cigarette, that's a violation of the Hobbs Act?

Anthony A. Yang: Well, there's a different argument there, and let me tell you why. The pure possession ­­ and we're not talking about the actual trade in marijuana but just the personal possession, that raises different questions. That was addressed by Raich. Now, there is an argument that could be made that that would fall within the Hobbs Act. At the same time ­­

Justice Alito: It falls within the Commerce Clause, doesn't it?

Anthony A. Yang: It falls ­­ certainly the possession is something that Congress can regulate as Raich teaches. Now, whether the robbery of one possessing, that's yet additional ­­ an additional link into the Commerce Clause inquiry. And what I can say is that the courts of appeals have recognized, as this Court has, the ­­ in a search for the outer limits of the Commerce Clause, the courts have pulled back and they've suggested that when you're robbing just a mere Alderson Reporting Company Official 1 individual who's not a business or engaged in a business in the ­­ in the context of the robbery, that raises different questions and it's much more difficult to establish necessary nexus. We're ­­ we're not actually taking that on in this case because we don't think we have to. What we have in this case is robbery of the commodity, marijuana, from people engaged in its trade when we know ­­ we know that falls well within commerce over which the United States has jurisdiction.

Justice Alito: Suppose someone robbed the farmer in Wickard v. Filburn of the wheat that the farmer was growing for personal consumption. Would that be a violation of the Hobbs Act?

Anthony A. Yang: Wickard is a little bit more complicated because it was personal consumption but in the context of a commercial enterprise, right? He was growing wheat for his animals and growing wheat ­­ he also grew wheat for sale. So ­­ but the wheat that we're talking about is the wheat that he was growing for his own use in his business. I think there would be a stronger argument there than what you'd have if you just happened to stumble upon someone, you rob them, and you picked up, you know, some wheat or a marijuana cigarette out of their house. Alderson Reporting Company Official 1 Again, we don't deny that there are, at the fringes, difficult questions that this Court may have to address at some point. But we're talking ­­

Justice Kennedy: What is your understanding of what the defendant wanted to ­­ the evidence the defendant wanted to introduce?

Anthony A. Yang: I think the defendant wanted to introduce evidence that not all marijuana in Virginia is coming from out of State. And that's not legally relevant to our ­­

Justice Kennedy: Was there any challenge to the status of these victims as dealers?

Anthony A. Yang: I think there might have been indirectly through cross­examination, but what we're talking about here is, remember, is an attempt. This is an ­­ the Hobbs Act ­­

Justice Kennedy: I understand that.

Anthony A. Yang: ­­ not only ­­ not only covers ­­

Justice Kennedy: It was an attempt against persons who were in the drug trade?

Anthony A. Yang: And at least at a minimum who the defendants believed were in the drug trade, and that's really what the relevant question is here. Because if, for instance, there's ­­ you know, two people make an elaborate plan to rob a bank and then they end up Alderson Reporting Company Official 1 showing up at a business that's not a bank, it's actually someone's house, they can be charged with either a conspiracy or an attempt charge based on the facts as they ­­ as they understood them. And here, I don't think there's much of an argument that the evidence was sufficient to show that these individuals had the understanding that the two victims here were drug dealers that were engaging in marijuana ­­

Justice Sotomayor: Mr. Yang, I'd like to ­­ for you to explain to me what the difference in charges are between this robbery and a regular robbery, let's say of a business. Because as you've noted, there are many circuits that say if you just rob a person individually, that's not a Hobbs Act robbery. But if you rob a business, it is. So how does a judge charge in a regular Hobbs Act case and this kind of case?

Anthony A. Yang: Well, it will depend, I think, in part on the government's theory of the case. The government makes charging decisions and presents its theory, and the judge would have to charge with respect ­­

Justice Sotomayor: I understand the charges, counsel.

Anthony A. Yang: So in the normal case, and this Alderson Reporting Company Official 1 is the ­­ this is kind of the ­­ the mind run of cases that all the courts of appeals have accepted are as kind of a depletion­of­assets theory case. Now, in those types of cases when you're involving the robbery of a business, the government puts on evidence ­­ this could be any type of business pretty much ­­ that the business engages in some kind of interstate commerce. That's kind of showing something particularized, just like here you're showing it's the marijuana dealer.

Justice Sotomayor: Engages how, either by buying goods in commerce ­­

Anthony A. Yang: Buying goods from out of State, selling to out­of­State customers, buying equipment from out of State, all types of things.

Justice Sotomayor: Let's assume that that's true.

Anthony A. Yang: Uh­huh.

Justice Sotomayor: Is the jury charged that this particular robbery had to affect that?

Anthony A. Yang: Yes, because what they end up ­­ the theory, the depletion of assets theory, which again, this has been established in all the courts of appeals for quite some time, is that even if you're robbing not ­­ something that has not moved in commerce, say, Alderson Reporting Company Official 1 money ­­

Justice Sotomayor: Right.

Anthony A. Yang: ­­ what you're doing is you're depleting the assets of an enterprise that is engaging in interstate commerce. And so by doing that, you're hindering its ability to engage in interstate commerce on a prospective basis.

Justice Sotomayor: So ­­ so the jury is charged to make that determination, that this act of robbering the money hindered the commerce in some way?

Anthony A. Yang: Or has the potential to.

Justice Sotomayor: So how is that different than his argument, your adversary's argument that ­­

Anthony A. Yang: Oh, I think that that is his argument. I think he accepts in his brief the depletion of assets theory and says that the government has to show that this marijuana moved in interstate commerce, or that the dealers sold to people out of State, which I will note parenthetically is a little difficult when we're talking about an attempt, and we're talking about people who trade in marijuana. They don't always ­­ are not always forthcoming in their admissions to law enforcement, but that's his theory. Our position is that is not necessary because we know already ­­ although that's one means of Alderson Reporting Company Official 1 showing an effect on interstate commerce, there are other means. And the theory here is that the robbery affects commerce over which the United States has jurisdiction. We know that commerce of the United States has jurisdiction includes the inter­ or intrastate trade in marijuana, and that, therefore, in this theory ­­ which is different, it's a different way of proving the same jurisdictional element ­­ that under our theory here, the evidence was sufficient because there was sufficient evidence to show that these ­­ the Southwest Goonz, including Petitioners, were targeting these two victims because they expected to gain marijuana from the individuals who they thought were drug dealers. If the Court has no further questions, we'd ask that you affirm.

Chief Justice Roberts: Thank you, counsel. Mr. Jones, you have five minutes remaining. REBUTTAL ARGUMENT OF DENNIS E. JONES ON BEHALF OF THE PETITIONER

Dennis E. Jones: Thank you, Your Honor. The ­­ I'd like to digress to ­­ to the question about a single cigarette, if ­­ if that is stolen, would ­­ or subject of robbery, would ­­ would that affect the Hobbs Act. Alderson Reporting Company Official 1 Taking the extension that my friend is suggesting here, if we read the last phrase of the Hobbs Act, it says, "All other commerce over which the United States has jurisdiction." The application of Raich to controlled substances, the Controlled Substance Act, if the ­­ if it has no limits on ­­ on this element of interstate commerce, then the answer to that is if a person comes up and ­­ and robs an individual of a single joint of marijuana, it could possibly trigger a Hobbs Act conviction because it's "all." It encompasses "all." I don't think that under any interpretation of ­­ of the Hobbs Act has it ­­ has it been discussed that we're going to make robberies a ­­ a generalized Hobbs Act ­­

Justice Kennedy: That isn't this case. This case is a robbery of a drug dealer, correct?

Dennis E. Jones: That's correct. And what we're saying, Your Honor, is that in ­­ in the robbery of a drug dealer, it still requires an independent finding about whether or not there was this effect on commerce. And that's what's lacking here. That's ­­ that's what's lacking in ­­ in this case, and that's what we're suggesting should take place. The government should have to prove that Alderson Reporting Company Official 1 element so that the jury, in its deliberations, would make that independent finding on that element on the jurisdictional element. Any questions? With that, Your Honor, we would ask the Court to reverse.

Chief Justice Roberts: Thank you, counsel. Case is submitted. (Whereupon, at 10:58 a.m., the case in the above­entitled matter was submitted.) 12 14 16 18 20 22 24 Alderson Reporting Company OOffffiicciiaall Page 50 A 14:3,16 15:3 assets 24:1 45:22 board 12:1 certainly 21:1 24:16 26:14 28:19 46:4,16 borne 5:18 22:17 41:17 a.m 1:13 3:2 49:9 28:19,20 31:22 Assistant 1:17 Botetourt 4:22 certainty 25:11 ability 4:15 9:23 33:2,12 45:20 assume 33:23,24 brief 4:2,18 9:15,16 chain 23:23 46:6 47:25 45:16 26:4 28:10 35:23 challenge 28:6 Abingdon 1:15 affirm 47:16 assumes 21:17 46:15 43:11 able 5:13,13 20:17 agent 4:11,11 ATF 4:11 bring 33:6 challenges 16:15,22 20:18 aggregate 18:12 attempt 31:18 brother 24:1 35:22 16:22 above­entitled 1:11 ago 21:15 43:15,19 44:3 burden 31:2 34:23 challenging 18:8 49:10 agree 13:16,20 14:6 46:20 36:2 chambers 37:19 absence 20:16 14:22 16:8 40:18 attenuated 23:23 business 9:23 10:1 characteristics academic 25:14 ALITO 11:4,9,16 authority 11:6,18 13:2 15:13,14,18 22:24 accepted 45:2 11:24 12:14 17:25 16:24 19:7 35:6 15:19,24 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