UNITED STATES of America, Plaintiff-Appellee, v. Min Nan WANG, Defendant-Appellant, 222 F.3d 234

BATCHELDER, J., delivered the opinion of the court, in which GILMAN, J., joined. HOOD, D.J. (pp. 241-47), delivered a separate concurring opinion. OPINION BATCHELDER, Circuit Judge. Min Nan Wang appeals his convictions of robbery affecting interstate commerce in violation of 18 U.S.C. § 1951 and of using and carrying a firearm in relation to a crime of violence (robbery) in violation of 18 U.S.C. § 924(c)(1). For the reasons that follow, we reverse these convictions. I Paul and Patricia Tsai are the owners of the China Star Restaurant in Cookeville, Tennessee.

The China Star purchases meat and seafood from out-of-state suppliers approximately twice per month. On September 11, 1995, Mrs. Tsai closed the restaurant at approximately 9:00 p.m. and drove to her home in Algood, Tennessee, followed by Mr. Tsai in a separate car. She took with her $1200 from the cash register, $900 of which she intended to deposit in the restaurant’s bank account the next morning. Mrs. Tsai drove into the garage of her home and then entered the house, placing the money from the restaurant on the dining room floor.

She then went to her bedroom, where, unbeknownst to her, Wang, who had broken into the house sometime earlier, was lurking. Wang grabbed Mrs. Tsai from behind and told her in Chinese to be quiet. When Mrs. Tsai resisted, Wang hit her on the head with a hard object, handcuffed her and put something over her face, telling her to shut up or he would kill her. He then pulled her into the bathroom, deposited her in the bathtub, and secured her to a railing on the wall next to the bathtub. Mrs. Tsai recognized Wang’s voice because he had once worked as a cook in her restaurant. As Mr.

Tsai parked his car in the garage he heard his wife screaming. When he entered the house, Wang’s accomplice attacked him from the side, hitting him in the head with a hard object. The accomplice took him to the bedroom closet, handcuffed him to the clothes rail and threatened to kill him unless Tsai told him where the money in the house was. The assailant showed him a gun, loaded it in front of him, and pointed it at his head. By this time, Wang had placed tape on Mrs. Tsai’s mouth.

He told her repeatedly, “Your money or your life.” Wang and his accomplice left their victims on several occasions to confer in a dialect that neither of the Tsais could understand. Each time Wang returned from meeting with his accomplice, he would demand money from Mrs. Tsai. Mrs. Tsai eventually told Wang about $3000 she had earlier withdrawn from her personal account and left in an envelope on her dining room table. Before the pair left the house, Wang’s accomplice moved Mr. Tsai from the bedroom closet to the utility room. The robbers drove away in the Tsais’ Toyota Corolla automobile.

Wang was later arrested in Chamblee, Georgia, pursuant to a Putnam County, Tennessee, warrant for especially aggravated robbery, especially aggravated kidnapping, and especially aggravated burglary.

On August 21, 1996, a federal grand jury returned a four-count indictment charging Wang with robbery affecting interstate commerce in violation of 18 U.S.C. § 1951 (Count I); using and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1) (Count II); carjacking in violation of 18 U.S.C. § 2119 (Count III); and transporting a stolen motor vehicle in interstate commerce, in violation of 18 U.S.C. § 2312 (Count IV). Wang was also charged with aiding and abetting under 18 U.S.C. § 2 as to all four counts. The case was tried without a jury.

The district court granted Wang’s motion for judgment of acquittal on Count III of the indictment and found Wang guilty of the remaining counts. The court sentenced Wang to twenty-four months on Counts I and IV, the robbery and the interstate transportation of stolen motor vehicle counts, followed by five years on Count II for the violation of 18 U.S.C. § 924(c).

In handing down this sentence, the district court departed downward ten levels from a total offense level of 26, finding that Wang had been subjected to abuse and threats by individuals who had smuggled him into the United States, that he had been shabbily treated by the United States criminal justice system, and that his offense conduct was aberrational. Wang timely appealed. He challenges only his convictions with respect to Counts I and II. II Wang first assails his conviction for robbery affecting interstate commerce in violation of 18 U.S.C. § 1951.

That statute, the Hobbs Act, provides in relevant part: Whoever 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 shall be fined under this title or imprisoned not more than twenty years, or both. 18 U.S.C. § 1951(a). Wang maintains that, in light of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), insufficient evidence existed to support a finding that his robbery affected interstate commerce. The district court expressed a certain level of discomfort with its conclusions in this regard, noting: This Court finds that there is no effect on interstate commerce beyond an absolute de minimis effect of $1,200. There is no proof that Dr. and Mrs.

Tsai closed the restaurant, that they were unable to order any further goods from out of state. There is no evidence of an [e]f-fect upon interstate commerce. Nevertheless, the court decided that precedent from this circuit compelled a finding of guilt with respect to Count I. We review the sufficiency of the evidence supporting Wang’s conviction by determining “whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v.

Brown, 959 F.2d 63, 67 (6th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Historically, we have erected a rather low threshold for determining whether robbery directed at a business establishment will give rise to federal criminal jurisdiction under § 1951. To support a conviction under the Hobbs Act, we have required the government to demonstrate nothing more than a de minimis effect on interstate commerce. See United States v.

Harding, 563 F.2d 299, 302 (6th Cir.1977). “There is no requirement that there be an actual effect on interstate commerce — only a realistic probability that [an offense] will have an effect on interstate commerce.” United States v. Peete, 919 F.2d 1168, 1174 (6th Cir.1990) (emphasis omitted). Thus, for example, we have upheld a Hobbs Act conviction where the defendant attempted to steal between $7,000 and $8,000 from a tavern that purchased goods from local distributors who in turn purchased goods from outside the state. See Brown, 959 F.2d at 65.

Had the heist been successful, we noted, there was a “realistic probability that the depletion of the bar’s assets would have affected the amount of its purchases of beer having moved through interstate commerce.” Id. at 68. The jurisprudential landscape has not much changed in the wake of Lopez, the landmark ease that struck down the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), as an invalid exercise of Congress’s power under the Commerce Clause. See Lopez, 514 U.S. at 551, 115 S.Ct. 1624. Facial constitutional challenges to the Hobbs Act followed close on the heels of Lopez.

In turning away the first of these in United States v. Valen- zeno, we remarked in dicta that “[i]f Lopez indicates that the Commerce Clause gives Congress less power than was previously thought to be the case, the proper remedy would be to give the statute a narrower

interpretation, or to require a more substantial jurisdictional nexus, not to hold facially invalid

an Act of Congress.” Valenzeno, 123 F.3d 365, 368 (6th Cir.1997). Ultimately, however, “[w]e jointed] our sister circuits and [held] that the de minimis standard for the interstate commerce effects of individual Hobbs Act violations survived Lopez." United States v. Smith, 182 F.3d 452, 456 (6th Cir.1999). The Lopez Court had recognized that the commerce power includes regulation of activities that are connected with a commercial transaction which, viewed in the aggregate, substantially affects interstate commerce. Lopez, 514 U.S. at 561, 115 S.Ct. 1624.

On this basis, we decided that Lopez did not require realignment of the Hobbs Act’s jurisdictional nexus because individual instances arising under the statute could, through repetition, have a substantial effect on interstate commerce. See Smith, 182 F.3d at 456. So in United States v.

Smith, we upheld the Hobbs Act conviction of a defendant who robbed various Michigan “party stores” of sums in the low four figures, saying, “By proving that the stores Smith robbed did substantial business in beer, wine, and tobacco products, and that virtually none of such products originate in Michigan, the government met its burden.” Id. Even as broadly phrased as our precedents are, however, they do not compel the result that the district court reluctantly reached in this case. As with “the overwhelming majority of cases involving the statute,” United States v.

Quigley, 53 F.3d 909, 910 (8th Cir.1995), our precedents have involved robberies in which the victims were businesses engaged in interstate commerce. But where, as here, the criminal act is directed at a private citizen, the connection to interstate commerce is much more attenuated. See id. (“Actions normally have a lesser effect on interstate commerce when directed at individuals rather than businesses.”). This case presents our first opportunity to address the showing that the government must make to demonstrate that the robbery of an individual had a “realistic probability” of affecting interstate commerce.

Cf. United States v. Taylor, 176 F.3d 331, 339 (6th Cir.1999) (rejecting a blanket constitutional challenge to the Hobbs Act as applied to robberies of private citizens, or burglaries of a private residences). We hold that the required showing is of a different order than in cases in which the victim is a business entity.

Those Courts of Appeals that have considered this question' — even in the pre-Lopez era — have recognized that a robbery of a private citizen that causes only a speculative indirect effect on a business engaged in interstate commerce will not satisfy the jurisdictional requirement of the Hobbs Act. The Fifth Circuit, for example, refused to apply the Act to the robbery of an automobile and a cellular telephone from a computer company executive, even though the crime might have prevented the victim from attending business meetings or making business calls. United States v.

Collins, 40 F.3d 95, 100 (5th Cir.1994) (holding that “[c]riminal acts directed toward individuals may violate

section 1951(

a) only if: (1) the acts deplete the assets of an individual who is directly and customarily engaged in interstate commerce; (2) if the acts cause or create the likelihood that the individual will deplete the assets of an entity engaged in interstate commerce; or (3) if the number of individuals victimized or the sum at stake is so large that there will be some ‘cumulative effect on interstate commerce’ ” (footnotes omitted)). Another court held that a robbery of two individuals who were en route to a liquor store to make a purchase had no effect or realistic potential effect on interstate commerce.

Quigley, 53 F.3d at 910-11 (following Collins). Similar concerns were voiced in cases involving extortion directed at private citizens. See, e.g., United States v. Mattson, 671 F.2d 1020, 1024-25 (7th Cir.1982) (holding that extortion directed against an individual does not affect interstate commerce where the payoff does not deplete the assets of an entity engaged in interstate commerce and no other connection with interstate commerce exists); see also United States v. DeParias, 805 F.2d 1447, 1451 (11th Cir.1986) (citing Mattson for this proposition), overruled on other grounds by United States v.

Kaplan, 171 F.3d 1351, 1357 (11th Cir.1999). The conclusions of our sister circuits are bolstered by Lopez. The Hobbs Act’s de minimis standard survives Lopez by virtue of the aggregation principle. But the Lopez Court declined to apply the aggregation principle in conjunction with long chains of causal inference that would have been necessary to arrive at a substantial effect on interstate commerce.

Thus, when the United States argued that gun possession in school zones would, in the aggregate, result in violent crime which would result in costs which would affect the national economy through the mechanism of insurance, the Court responded: “To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Lopez, 514 U.S. at 567, 115 S.Ct. 1624; see also A.L.A. Schecter Poultry Corp. v.

United States, 295 U.S. 495, 554, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) (Cardozo, J., concurring) (“There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce.... Activities local in their immediacy do not become interstate and national because of distant repercussions.”). Just this sort of “butterfly effect” theory of causation would be required to find liability in the great majority of Hobbs Act cases in which the victim is a private citizen.

See James Gleick, Chaos: Making a New Science 8 (1987) (discussing the parable of the flapping of a butterfly’s wings that creates a minor air current in China, that adds to the accumulative effect in global wind systems, that ends with a hurricane in the Caribbean). Per Lopez, a small sum stolen from a private individual does not, through aggregation, affect interstate commerce merely because the individual happens to be an employee of a national company, or happens to be on his way to a store, or happens to be carrying proceeds from a restaurant.

This is not to say that criminal acts directed at private citizens will never create jurisdiction under the Hobbs Act. The federal courts have acknowledged, for example, that victimization of a large number of individuals, or victimization of a single individual for a very large sum, can . have the potential directly to affect interstate commerce. See, e.g., United States v. Farrell, 877 F.2d 870, 875-76 (11th Cir.1989) (holding that extortion demand of $1,540,000 “would have affected interstate commerce to a legally cognizable degree”).

But when the Government seeks to satisfy the Act’s jurisdictional nexus by showing a connection between an individual victim and a business engaged in interstate commerce, that connection must be a substantial one — -not one that is fortuitous or speculative. We have suggested that the Government might make such a showing by demonstrating that the defendant knew of or was motivated by the individual victim’s connection to interstate commerce. See United States v.

Mills, 204 F.3d 669, 670 (6th Cir.2000) (holding that solicitation of bribes from individuals gave rise to federal jurisdiction under the Hobbs Act because the defendants “had actual knowledge that the bribe money would be obtained through loans made in interstate commerce”). Other avenues of proof will no doubt present themselves. We would anticipate, however, that the “overwhelming majority” of Hobbs Act cases brought before the federal courts will continue to be ones in which the victims are businesses directly engaged in interstate commerce.

In the present case, application of these principles dictates reversal of Wang’s conviction with respect to Count I. Wang robbed private citizens in a private residence of approximately $4,200, a mere $1,200 of which belonged to a restaurant doing business in interstate commerce.

The Government made no showing of a substantial connection between the robbery and the restaurant’s business, and the district court held that “[t]here is no evidence of an [ejffect on interstate commerce.” In the absence of such a showing, there is no realistic probability that the aggregate of such crimes would substantially affect interstate commerce. Indeed, upholding federal jurisdiction over Wang’s offense would, in essence, acknowledge a general federal police power with respect to the crimes of robbery and extortion.

The Supreme Court, however, has this Term reminded us that: The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States.

Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims. United States v. Morrison, — U.S.-, -, 120 S.Ct. 1740, 1754, 146 L.Ed.2d 658 (2000) (citations omitted). Due regard for this admonition requires that Wang’s case be heard in state court. We therefore reverse his Hobbs Act conviction. Ill Wang next challenges his conviction for using a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1).

The district court held Wang liable for his accomplice’s possession of a gun during the robbery under the doctrine of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), and, in the alternative, under an aiding and abetting theory. Wang maintains that a Pinkerton theory is inapplicable because he was not charged with conspiracy, and that the government did not prove (as it must on an aiding and abetting theory) that he knew “to a practical certainty” that his accomplice was carrying a gun. See United States v. Morrow, 977 F.2d 222, 231 (6th Cir.1992) (en banc).

We need not resolve these thorny questions.

Section 924(c)(1) provides for a term of imprisonment for “any person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm .... ” (emphasis supplied). This circuit has held that this language requires that “the defendant have committed a violent crime for which he may be prosecuted in federal court.” Smith, 182 F.3d at 457 (emphasis omitted). And in Smith, we cited with approval the holding of the Fifth Circuit in Collins that a § 924(

c) conviction cannot stand when the trial court had no jurisdiction over the predicate crime. See Collins, 40 F.3d at 101 (“Section 924(c)(1) requires that the underlying offense be a federal crime and, as the robbery[ ] conviction for violation of

section 1951(

a) is now voided, the conviction for unlawful use of a firearm during that robbery also must be reversed.”). Because Wang’s robbery did not have even a de minimis effect on interstate commerce, the crime could not properly have been prosecuted in federal court. Accordingly, Wang’s § 924(

c) conviction must also be reversed. . This might also be viewed as the “dog, dog bite pig” theory of causation. See The Little Old Woman and Her Pig, in The Tall Book of Nursery Tales 92 (1972). The little old woman had been stymied in her attempt to get home because her recalcitrant pig refused to cross a stile.

So the old woman gave water to a haymaker for a wisp of hay to give to a cow for some milk to induce a cat to begin to kill a rat that began to gnaw a rope that began to hang a butcher who began to kill an ox who began to drink some water that began to quench a fire that began to burn a stick that began to beat the dog who began to bite the pig who jumped over the stile in a fright. Id. at 97. While this sequence of events got the little old woman home that night, such a causal chain will not suffice to put Mr. Wang in federal court. .

This finding was preceded by the statement that "there is no effect on interstate commerce beyond an absolute de minimis effect of $1200.” It is clear, however, that the district court believed — correctly—that the effect here did not rise even to the level of de minimis.