Argued: December 10, 2015
defendants appeal from convictions for racketeering,
narcotics conspiracy, Hobbs Act conspiracy, and various
substantive counts of Hobbs Act robbery and associated
firearms and murder counts. In this opinion, we hold that the
evidence offered at trial to prove the interstate commerce
element of the challenged Hobbs Act robberies was sufficient
to support the guilty verdicts, because the evidence
permitted the jury to conclude beyond a reasonable doubt that
the robberies targeted suspected marijuana dealers for their
drugs or the proceeds from the sale of drugs. Additionally,
we reject defendant Levar Gayle's due process and
evidentiary challenges to his convictions resulting from the
robbery and murder of Oneil Johnson. For the reasons set
forth in this opinion and in an accompanying summary order,
the judgment of the district court is AFFIRMED in all
respects, save that Selbourne Waite's case is REMANDED
for resentencing, for reasons set forth in the summary order.
ALAN SEIDLER, New York, NY, for defendant-appellant Hisan
WINSTON LEE, New York, NY, for defendant-appellant Delroy
M. LIEBESMAN, Paramus, NJ, for defendant-appellant Levar
V. TIPOGRAPH, New York, NY, for defendant-appellant Selbourne
MARGARET GARNETT, Assistant United States Attorney (Jessica
Fender, Won Shin, David Zhou, Assistant United States
Attorneys, on the brief), for Preet Bharara, United States
Attorney for the Southern District of New York, New York, NY.
CABRANES, POOLER, and LYNCH, Circuit Judges.
E. Lynch, Circuit Judge:
defendants appeal from convictions on various charges of
racketeering, narcotics conspiracy, Hobbs Act conspiracy, and
substantive counts of Hobbs Act robbery and associated
firearms and murder counts. We reject most of defendants'
challenges to their convictions in an accompanying summary
order, in which we also conclude that defendant Selbourne
Waite's case must be remanded for resentencing. In this
opinion, we hold, following the Supreme Court's recent
decision in Taylor v. United States, 136 S.Ct. 2074
(2016), that the evidence offered at trial to prove the
interstate commerce element of the challenged Hobbs Act
robbery convictions was sufficient to support the guilty
verdicts, because the evidence permitted the jury to conclude
beyond a reasonable doubt that the robberies targeted
suspected marijuana dealers for their drugs or the proceeds
from the sale of drugs. We also reject defendant Levar
Gayle's due process and evidentiary challenges to his
conviction on charges arising from the robbery and murder of
Oneil Johnson. We therefore AFFIRM the judgment of the
district court, except to the extent that defendant
Waite's case is REMANDED for resentencing for reasons set
forth in the accompanying summary order.
Lee, Delroy Lee, Selbourne Waite, and Levar Gayle appeal from
judgments of conviction in the United States District Court
for the Southern District of New York (Barbara S. Jones,
J.), following a six-week jury trial. The jury found
the defendants guilty of all counts against them, except that
it acquitted Selbourne Waite of the counts related to the
murder of Bunny Campbell. As noted above, we resolve most of
the issues on appeal in the accompanying summary order.
Below, we address the challenges made by all four defendants
to the sufficiency of the evidence on the interstate commerce
element for the Hobbs Act robberies, and Gayle's
arguments that the district court's rulings caused him
substantial prejudice requiring reversal of his convictions
in connection with the robbery and murder of Oneil Johnson.
evidence at trial showed that Hisan Lee, his brother Delroy
Lee, and their cousin Selbourne Waite were all members of a
criminal organization centered around DeKalb Avenue in the
northern Bronx (the "DeKalb Avenue Crew" or the
"Crew"), which engaged in extensive drug dealing,
violence, robberies of drug dealers, and murders. Another
cousin, Levar Gayle, was not a member of the Crew, but was
convicted of participating in a single drug robbery in which
the victim, Oneil Johnson, was shot and killed by Hisan Lee.
Crew was led primarily by a man named Bobby Saunders, and its
activities centered on a triangle of blocks between Van
Cortlandt Park and Woodlawn Cemetery. Saunders had a close
"father-son" type relationship with Hisan Lee,
Delroy Lee, and Waite, and gave them entry-level jobs selling
marijuana and crack cocaine on his stretch of DeKalb Avenue
in the early 1990s. By the late 1990s, Delroy Lee, Hisan Lee,
and Selbourne Waite were all selling crack cocaine on DeKalb
Avenue with other members of the Crew. Members of the Crew
pooled money to buy from suppliers, split sales, and watched
out for the police for one another. By the mid-2000s, the Lee
brothers and Waite were primarily involved in selling larger
quantities of drugs than before, which they often secured
through robberies, many of which are the subject of this
appeal. The Lee brothers and Waite regularly carried guns to
protect their drugs and themselves while they were selling,
and to protect and enforce the exclusive territory of the
DeKalb Avenue Crew. The factual background as it relates to
each Hobbs Act robbery, and Gayle's involvement in the
robbery and murder of Oneil Johnson, is discussed further in
Interstate Commerce Element
four defendants challenge the sufficiency of the evidence to
prove the interstate commerce element of various charged
substantive Hobbs Act robberies: the robbery of Oneil
Johnson, in which Johnson was shot and killed, and robberies
at 4061 Murdoch Avenue, 2041 Strang Avenue, 2032 Strang
Avenue, 3955 Paulding Avenue, and 2930 Hone Avenue.
Accordingly, they argue that those substantive robbery
convictions, as well as any firearms convictions predicated
on them, must be reversed.
stipulated by the parties that all cocaine and some marijuana
comes from outside the state of New York. Therefore, if the
target of a robbery was cocaine or its proceeds, the
interstate commerce element is clearly satisfied, since the
cocaine must have been transported in interstate commerce,
and a reasonable jury therefore could easily conclude that
the robberies affected an interstate, if illicit, commercial
operation. But the stipulation that some marijuana has
traveled interstate leaves open the possibility that the
marijuana targeted in any particular robbery may have been
grown, processed, and sold entirely within New York State,
unless the government specifically proved otherwise.
Accordingly, defendants argue, citing our decisions in
United States v. Parkes, 497 F.3d 220 (2d Cir.
2007), and United States v. Needham, 604 F.3d 673
(2d Cir. 2010), that evidence that the defendants'
robberies targeted marijuana dealers for their marijuana (or
for the proceeds from its sale) is insufficient in itself to
permit a jury to find the requisite nexus with interstate
commerce under the Hobbs Act, even if "the general
activity [of marijuana dealing], taken in toto, has
such an effect." Needham, 604 F.3d at 684.
Needham case, on which defendants primarily rely,
has been abrogated by the Supreme Court's recent decision
in Taylor, which held that where the government
proves that a defendant robbed or attempted to rob a
marijuana dealer of marijuana or proceeds from its sale, the
interstate commerce element of the Hobbs Act is satisfied.
Taylor, 136 S.Ct. at 2077-78. Applying this new
standard to the various Hobbs Act robbery convictions
challenged by the defendants, we conclude that the evidence
amply proved that the robberies in question affected
interstate commerce within the meaning of the Hobbs Act.
Hobbs Act provides in relevant part that "[w]hoever in
any way or degree obstructs, delays, or affects commerce or
the movement of any article or commodity in commerce, by
robbery . . . or attempts or conspires so to do . . . shall
be fined under this title or imprisoned not more than twenty
years, or both." 18 U.S.C. § 1951(a). In a Hobbs
Act prosecution, "it is well established that the burden
of proving a nexus to interstate commerce is minimal."
United States v. Elias, 285 F.3d 183, 188 (2d Cir.
2002). But the Act still requires proof beyond a reasonable
doubt of an effect on interstate commerce. 18 U.S.C. §
1951(a) (penalizing anyone who, inter alia, "in
any way or degree . . . affects commerce . . . by
how much of an effect on interstate commerce is required is a
vexing issue. On the one hand, our cases are replete with
statements that the effect on interstate commerce need only
be "slight, subtle or even potential, " United
States v. Perrotta, 313 F.3d 33, 36 (2d Cir. 2002)
(internal quotation marks omitted). Further, the post-New
Deal standard for congressional regulatory jurisdiction under
the commerce clause has been expansive. See, e.g.,
Wickard v. Filburn, 317 U.S. 111, 128-29 (1942).
While the Supreme Court has in recent years attempted to draw
some limits to that power, see, e.g., United
States v. Lopez, 514 U.S. 549 (1995), the Court has
specifically upheld expansive congressional authority over
controlled substances. Most notably, because Congress has
undertaken comprehensive regulation of controlled substances,
based on a finding that the traffic in such substances, in
the aggregate, has significant effects on interstate
commerce, the Court has upheld federal prohibitions on even
the personal possession or cultivation of small amounts of
marijuana. Gonzales v. Raich, 545 U.S. 1 (2005).
regards the interaction between this expansive federal
interstate commerce jurisdiction over controlled substances
and the Hobbs Act, this Circuit has followed a somewhat
meandering course. We concluded in 2002 that evidence that a
defendant believed he was robbing the "proceeds of a
drug deal" constituted "sufficient evidence to
support Hobbs Act jurisdiction" as a matter of law,
because "drug proceeds affect interstate commerce."
United States v. Fabian, 312 F.3d 550, 555 (2d Cir.
2002). But in 2007, we held that even as to drug robberies,
the jury was still required to make an independent finding of
an effect on interstate commerce as part of its verdict.
Parkes, 497 F.3d at 229-30. We reaffirmed the
holding of Parkes in Needham, and went
further, holding that to support such a jury finding, more
specific proof of the effect of the particular robbery on
interstate commerce is required: "In every [Hobbs Act]
case, the government must prove that the alleged offense had
some effect on interstate commerce - not simply that the
general activity, taken in toto, has such an
effect." Needham, 604 F.3d at 684. "The
purpose of this requirement [was] to avoid transforming every
robbery and extortion, which are quintessential state crimes,
into federal offenses." Id. In other words,
prior to the Supreme Court's recent decision in
Taylor, the law in this Circuit was that while the
evidence may be slight, there must be some evidence of an
interstate nexus beyond merely proof that drugs or drug
proceeds were the target of a robbery.
on that Circuit case law, defendants argue that the evidence
of an effect on interstate commerce in the robberies in this
case was insufficient, because there was no evidence that any
marijuana involved in the robberies derived from interstate
commerce - and indeed, in some of the robberies there was no
evidence that marijuana or money attributable to the sale of
marijuana was obtained at all.
Supreme Court, however, has now clarified that "a robber
who affects or attempts to affect even the intrastate sale of
marijuana grown within the State affects or attempts to
affect commerce over which the United States has
jurisdiction." Taylor, 136 S.Ct. at 2080. In
Taylor, petitioner Taylor was indicted on two counts
of Hobbs Act robbery for his participation in two home
invasions targeting marijuana dealers for their marijuana and
proceeds from its sale. Taylor argued that the government had
not satisfied the commerce element of the Hobbs Act, because
it had not shown "(1) that the particular drugs in
question originated or were destined for sale out of State or
(2) that the particular drug dealer targeted in the robbery
operated an interstate business." Id.
Court rejected that argument, noting that Gonzalez v.
Raich "reaffirmed 'Congress'[s] power to
regulate purely local activities that are part of an economic
"class of activities" that have a substantial
effect on interstate commerce.'" Id.
(quoting Raich, 545 U.S. at 17). The Court described
its holding in Taylor as "straightforward and
dictated by our precedent, " id. at 2077,
stating that its conclusion
requires no more than that we graft our holding in
Raich onto the commerce element of the Hobbs Act.
The Hobbs Act criminalizes robberies affecting "commerce
over which the United States has jurisdiction." [18
U.S.C.] § 1951(b)(3). Under Raich, the market
for marijuana, including its intrastate aspects, is
"commerce over which the United States has
jurisdiction." It therefore follows as a simple matter
of logic that a robber who affects or attempts to affect even
the intrastate sale of marijuana grown within the State
affects or attempts to affect commerce over which the United
States has jurisdiction.
Id. at 2080. The Supreme Court thus held, in short,
that where a robber attempts to steal marijuana or marijuana
proceeds from a marijuana dealer, proof of such an attempt in
itself supports the conclusion that the robber attempted to
affect interstate commerce, and the robber is therefore
convictable under the Hobbs Act. See id.
Taylor, we hold that the evidence was sufficient to
prove the interstate commerce element of the Hobbs Act with
respect to each of the challenged robberies, because in each
instance, the target was a marijuana dealer's marijuana