United States v. Parkes, No. 05-1486 (2d Cir. 2007)

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05-1486-cr United States v. Parkes UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 August Term, 2006 (Argued: November 13, 2006 Decided: August 15, 2007) Docket No. 05-1486-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.OTIS PARKES, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, McLAUGHLIN and CALABRESI, Circuit Judges. Appeal from a judgment of conviction entered by the 25 United States District Court for the Southern District of 26 New York (Kaplan, J.). 27 nature of the evidence required to satisfy the interstate 28 commerce element of the Hobbs Act, 18 U.S.C. § 1951. 29 30 The principal question regards the The conviction is affirmed and the case is remanded for re-sentencing. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 JAMES M. BRANDEN, Law Office of James M. Branden, New York, New York, for Defendant-Appellant. RICHARD C. DADDARIO, Assistant United States Attorney (Celeste L. Koeleveld, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, New York, for Appellee. DENNIS JACOBS, Chief Judge: 16 Defendant-appellant Otis Parkes appeals from a judgment 17 entered in the United States District Court for the Southern 18 District of New York (Kaplan, J.), convicting him on 19 multiple counts arising out of his participation in a 20 botched robbery targeting drugs and drug proceeds, during 21 which the victim was shot and killed by one of Parkes s two 22 coconspirators. 23 Parkes argues (I) that the evidence adduced to prove a 24 nexus with interstate commerce under the Hobbs Act, 18 25 U.S.C. § 1951(a), was insufficient, and that in any event 26 the district court abused its discretion by allowing the 27 government to reopen its case to adduce (some of) that 28 evidence; (II) that the evidence was insufficient to support 29 Pinkerton liability for the murder; (III) that the district 2 1 court abused its discretion by refusing to grant a new trial 2 based on newly discovered evidence that a cooperating 3 witness had plotted to kill another witness; and (IV) that 4 the prosecutor made prejudicial statements in summation. 5 We hold (contrary to the position argued by the 6 government) that the Hobbs Act requires the jury to find 7 that a robbery of drugs and drug proceeds affects interstate 8 commerce; but we conclude that sufficient evidence was 9 introduced as to the attempted robbery in this case. We 10 reject defendant-appellant s remaining challenges, but 11 vacate and remand in order to allow the district court to 12 correct certain specified errors in the sentence 13 calculation. 14 Background 15 16 The Robbery. Viewed in the light most favorable to the 17 government,1 the evidence adduced at trial (the substance of 18 which stands unchallenged by Parkes) was as follows. 1 2 3 4 5 6 1 On a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the government, drawing all inferences in the government s favor and deferring to the jury s assessments of the witnesses credibility. United States v. Arena, 180 F.3d 380, 391 (2d Cir. 1999) (internal quotation marks omitted). 3 1 In June 2003, Steven Young proposed to Parkes and Duane 2 Beaty that they rob a drug dealer, Ruben Medina. 3 became a cooperating witness) testified that Young 4 explain[ed] to us how he knew a drug dealer [Medina] that 5 had money and drugs on the table selling out of a little 6 room, and he just had the stuff spread out on the table, and 7 it would be easy to go in and rob him and leave with the 8 proceeds. 9 morning hours of June 17, 2003, Parkes, Beaty and Young met Trial Tr. at 265 (Oct. 25, 2004). Beaty (who In the early 10 in Parkes s Jeep; Young confirmed that the other two were 11 packing guns. 12 drove to Medina s building, waited until someone came out, 13 and the three slipped in. 14 Trial Tr. at 272 (Oct. 25, 2004). Parkes The door to Medina s apartment was unlocked; the 15 robbers entered with guns drawn, and began binding the 16 people who had been sleeping in the various rooms. 17 this was going on, Medina entered the apartment with his 18 girlfriend, Delilah Lugo. 19 room with Parkes (where a clear plastic bag was put over her 20 head and a gun stuck in her face), but kept Medina in the 21 hallway with himself and Beaty. 22 While Young ordered Lugo into Medina s While Beaty questioned Medina in the hall about the 4 1 drugs and money, Young struck one of the residents, causing 2 his head to bleed, and then brought him to Medina s room 3 where Parkes restrained him with duct tape. 4 that he feared Young was getting out of hand, so he called 5 Young to stay with Medina while Beaty returned to Medina s 6 room and broke the lock to the closet in which he suspected 7 the drugs and proceeds were hidden. 8 (Oct. 25, 2004) 9 Beaty testified Trial Tr. at 281, 282 As Beaty was searching the closet, he heard Young 10 threatening to shoot Medina, followed by a gun shot. 11 ran to the hall, saw Medina shot and lying on his side, and 12 watched Young shoot Medina two more times in his back. 13 Beaty The robbers fled to the Jeep, and headed toward Beaty s 14 apartment. Young, who was going elsewhere, got out to take 15 a cab. 16 they arrived at Beaty s place. 17 Jeep and alerted his partner that he found a gun; Parkes ran 18 off and Beaty was arrested. 19 Jeep yielded: (1) a loaded handgun; (2) a pair of gloves 20 with Parkes s DNA on the inside and, on the outside, the 21 blood of the man Young had assaulted and Parkes had bound; 22 (3) a wallet containing Parkes s identification; (4) a roll The police confronted Parkes and Beaty soon after One officer searched the The police search of Parkes s 5 1 of duct tape of the type used to bind the people in the 2 apartment; and (5) a cell phone which Medina had been 3 carrying on the night he was shot. 4 The Trial. The events of the robbery were recounted at 5 trial by Beaty, Medina s girlfriend Lugo, police officers, 6 and residents of the apartment. 7 Parkes testified he came to her place early in the morning 8 of June 17 and made a series of phone calls; in one call, 9 Parkes told someone to report the Jeep stolen. Additionally, a friend of She also 10 testified that, weeks later, Parkes told her that he had 11 been involved in a shooting, had his Jeep searched by 12 police, and ran away when the police found a gun. 13 detective testified that his search of Medina s room yielded 14 $4,000 in a jacket pocket hanging in Medina s closet, one 15 large bag of marijuana, and 58 smaller nickel bags. 16 A After the government rested, Parkes moved for acquittal 17 under Federal Rule of Criminal Procedure 29 on the grounds 18 that the government had failed to satisfy the Hobbs Act s 19 interstate commerce element, and had not, for the purpose of 20 Pinkerton liability, adduced evidence that Medina s murder 21 was reasonably foreseeable. 22 Parkes s motion. The district court denied 6 1 The issue of interstate commerce arose again during the 2 charge conference. Initially, the court s proposed Hobbs 3 Act charge required the jury to find that the attempted 4 robbery potentially affected interstate commerce. 5 Tr. at 480 (Oct. 26, 2004). 6 conference, the district judge briefly changed course: he 7 said that he intended to remove that language from the 8 charge and substitute language instructing that if the 9 object of the robbery is to obtain illegal drugs or money Trial But during the charge 10 earned from the sale of drugs, the requirement of an effect 11 on interstate commerce is satisfied. 12 (Oct. 26, 2004). 13 have obviated proof that the robbery affected interstate 14 commerce, and instead required only a finding that the 15 object of the robbery was drugs or their proceeds, on the 16 theory that such a robbery affects interstate commerce ipso 17 facto. 18 redlined charge which retained the original language 19 requiring the jury to find that the robbery affected 20 interstate commerce, and not simply that the object of the 21 robbery was drugs or drug proceeds. 22 objecting, argued that its presentation of evidence was Trial Tr. at 392 Such an instruction, if delivered, would But on the next morning, the court distributed a 7 The government, 1 premised on the assumption that the jury would not need to 2 affirmatively find that the robbery affected interstate 3 commerce, but rather would only have to find that the target 4 of the robbery was drugs or proceeds. 5 the objection, but allowed the government to reopen its case 6 (over defense objection) to supplement the record. 7 The judge overruled The government called an experienced government 8 investigator who testified (inter alia) that: marijuana is 9 almost exclusively trucked into the United States, 10 predominantly through Mexico ; [v]ery little marijuana is 11 grown in New York; and approximately five percent of the 12 arrests the investigator made in the Bronx were of out-of- 13 state purchasers of marijuana. 14 26, 2004). 15 that he did not know the origin of the marijuana in Medina s 16 room, and that marijuana can be grown indoors and outdoors 17 in New York State. 18 Trial Tr. at 408-16 (Oct. On cross examination, the investigator conceded Consistent with the court s final ruling, the jury was 19 instructed that it had to find that the robbery affected 20 interstate commerce. 21 The district court denied Parkes s post-verdict Rule 29 22 motion for acquittal on the ground that the evidence was Parkes was convicted on all counts. 8 1 insufficient to satisfy the interstate commerce element of 2 the Hobbs Act. 3 motion for a new trial, which was premised on his assertion 4 that the prosecutor had misstated the law to the jury in 5 summation by stating that [d]rug dealing affects interstate 6 commerce and robberies that seek drugs and drug money do 7 so as well. 8 February 25, 2005, the district court sentenced Parkes to 9 life imprisonment. The court also denied Parkes s Rule 33 Trial Tr. at 439-40 (Oct. 25, 2004). On 10 Nearly seven months later, the government notified 11 Parkes that it had recently learned that, before Duane Beaty 12 cooperated with the government, he had taken steps to have a 13 witness in this case killed. 14 Rule 33 motion, which was also denied by the district court. Parkes promptly filed a second 15 I 16 17 Parkes challenges the sufficiency of the evidence to 18 prove the Hobbs Act s interstate commerce element. A 19 defendant challenging the sufficiency of the evidence bears 20 a heavy burden . . . . 21 556, 564 (2d Cir. 1996) (citing Glasser v. United States, 22 315 U.S. 60, 80 (1942)); see also United States v. United States v. Pipola, 83 F.3d 9 1 Giovanelli, 464 F.3d 346, 349 (2d Cir. 2006) (per curiam). 2 On a sufficiency challenge, we view the evidence in the 3 light most favorable to the government, drawing all 4 inferences in the government s favor and deferring to the 5 jury s assessments of the witnesses credibility. 6 States v. Arena, 180 F.3d 380, 391 (2d Cir. 1999) (internal 7 quotation marks omitted). 8 verdict so long as any rational trier of fact could have 9 found the essential elements of the crime beyond a United We will sustain the jury s 10 reasonable doubt. 11 (1979) (emphasis in original); see also United States v. 12 Schwarz, 283 F.3d 76, 105 (2d Cir. 2002). 13 Jackson v. Virginia, 443 U.S. 307, 319 As Parkes demonstrates, there was no particularized 14 evidence as to the interstate nature (vel non) of Medina s 15 drug-dealing business: i.e. the origin of his marijuana, his 16 suppliers, the route and instrumentality of delivery to 17 Medina, his buyers,2 or his use of the proceeds from drug 18 sales. 19 the interstate nature of drug dealing generally, the witness 20 (a law enforcement officer) acknowledged that marijuana is 1 2 3 In testimony introduced by the government to prove 2 There was one limited exception--one of Medina s roommates testified that he occasionally purchased marijuana from Medina. 10 1 grown within New York State, and that ninety-five percent of 2 the drug arrests he made in the Bronx were of New York State 3 residents. 4 Medina was a local, part-time marijuana dealer is 5 insufficient to support Hobbs Act liability. Parkes argues therefore that evidence that 6 Accordingly, this sufficiency challenge under the Hobbs 7 Act squarely presents a predicate question: whether evidence 8 that the target of a robbery was drugs or their proceeds is 9 sufficient as a matter of law to prove the requisite nexus 10 with interstate commerce. If (as the government asserts) a 11 robbery targeting drugs or their proceeds affects interstate 12 commerce as a matter of law, then no evidence of an effect 13 on interstate commerce would have been necessary: evidence 14 that the target of the robbery was drugs or proceeds would 15 be enough. 16 object was to rob marijuana and proceeds, Parks s challenge 17 would plainly fail under such a per se rule, and we would 18 have no need to consider the record evidence of an 19 interstate effect. 20 of an effect on interstate commerce--that is, if a robbery 21 does not affect interstate commerce as a matter of law 22 merely because drugs or proceeds were its target--then we Because it is uncontested on appeal that the But if the Hobbs Act does require proof 11 1 must consider whether the limited evidence adduced here was 2 sufficient to support Parkes s Hobbs Act conviction. 3 A 4 5 The Constitution require[s] criminal convictions to 6 rest upon a jury determination that the defendant is guilty 7 of every element of the crime with which he is charged, 8 beyond a reasonable doubt. 9 U.S. 506, 509-10 (1995); see also id. at 518-19 (describing 10 the uniform general understanding . . . that the Fifth and 11 Sixth Amendments require conviction by a jury of all 12 elements of the crime (emphasis in original)); Sullivan v. 13 Louisiana, 508 U.S. 275, 277-78 (1993) ( The prosecution 14 bears the burden of proving all elements of the offense 15 charged, and must persuade the factfinder beyond a 16 reasonable doubt of the facts necessary to establish each of 17 those elements. (citations and internal quotation marks 18 omitted)). 19 20 United States v. Gaudin, 515 In pertinent part, the Hobbs Act provides for criminal penalties for anyone who in any way or degree obstructs, 12 1 delays, or affects commerce3 or the movement of any article 2 or commodity in commerce, by robbery . . . or attempts or 3 conspires so to do. 4 4 effect on interstate commerce is thus an element of a Hobbs 5 Act offense, which must be proven beyond a reasonable doubt 6 to a jury. 7 726 (2d Cir. 2004). 8 commerce was affected is critical since the Federal 9 Government s jurisdiction of this crime rests only on that 18 U.S.C. § 1951(a). Proving an See United States v. Wilkerson, 361 F.3d 717, In a Hobbs Act prosecution, proof that 10 interference. 11 (2d Cir. 2002) (internal quotation marks and emendations 12 omitted). 13 obvious, as the need to prove the jurisdictional element of 14 a crime. 15 Cir. 1997). 16 1 2 3 4 5 6 1 2 3 4 United States v. Elias, 285 F.3d 183, 188 There is nothing more crucial, yet so strikingly United States v. Leslie, 103 F.3d 1093, 1103 (2d Whether a robbery affects interstate commerce is a 3 The Hobbs Act defines commerce as: all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. 18 U.S.C. § 1951(b). 4 For simplicity s sake, we refer to this element as requiring an effect on interstate commerce, because conduct that obstructs or delays commerce necessarily affects it. 13 1 mixed question of fact and law: fact insofar as the jury 2 must determine what the robbery targeted, law insofar as it 3 must determine whether the theft of the targeted items 4 affected (or would have affected) interstate commerce. 5 In United States v. Gaudin, the Supreme Court held that 6 all elements of a crime, including those involving mixed 7 questions of law and fact, must be decided by a jury. 8 515 U.S. at 513. 9 false statements on federal loan documents submitted to the See Gaudin was charged with making materially 10 U.S. Department of Housing and Urban Development ( HUD ). 11 Id. at 508. 12 jury that, as a matter of law, the statements at issue were 13 material. 14 was a mixed question of law and fact because (factually) the 15 jury had to determine what was said and what bearing it had 16 on HUD s loan decision, and then (legally) whether that 17 statement was material insofar as it had a tendency to 18 influence that decision. 19 that the jury s constitutional responsibility is not merely 20 to determine the facts, but to apply the law to those facts 21 and draw the ultimate conclusion of guilt or innocence. 22 Id. at 514. At trial, the district court instructed the Id. The Supreme Court concluded that materiality See id. at 512. The Court held Accordingly, the Court ruled that the district 14 1 court infringed Gaudin s constitutional right to have a 2 jury determine, beyond a reasonable doubt, his guilt of 3 every element of the crime with which he is charged. 4 at 522-23. Id. 5 Gaudin undid Second Circuit precedent that treated the 6 interstate commerce element of the Hobbs Act as a matter of 7 law for the judge, as we recognized in United States v. 8 Vasquez, 267 F.3d 79, 89 (2d Cir. 2001). 9 (for plain error) a jury charge regarding a Violent Crimes 10 in Aid of Racketeering ( VCAR ) offense, 18 U.S.C. § 1959. 11 267 F.3d at 86-87. 12 contains a jurisdictional element requiring proof that the 13 prohibited conduct affect[] interstate . . . commerce. 14 U.S.C. § 1959(b)(2). 15 jury that drug trafficking affects interstate commerce as a 16 matter of law. 17 this instruction removed from the jury at least a portion 18 of the jurisdictional element of the VCAR offenses, id. at 19 88, so that under Gaudin (even on plain error review) the 20 instruction that drug dealing affects interstate commerce as 21 a matter of law might not pass muster. 22 Constitutionality of the instruction was not categorically Vasquez reviewed Like the Hobbs Act, the VCAR statute 18 The district court had instructed the 267 F.3d at 86. 15 On appeal, we observed that Id. at 89. (The 1 decided because Vasquez s conviction was upheld on other 2 grounds.5 ) 3 with Circuit case law, citing as one example United States 4 v. Calder, 641 F.2d 76 (2d Cir. 1981), which Vasquez 5 described as having held that in a Hobbs Act case, [i]t 6 was for the court to determine as a matter of law the 7 jurisdictional question of whether the alleged conduct 8 affected interstate commerce. 9 (quoting Calder, 641 F.2d at 78). Vasquez observed that Gaudin directly conflicted Vasquez, 267 F.3d at 89 Vasquez thus considered 10 that this aspect of Calder s holding was abrogated by 11 Gaudin. 12 Id. After Gaudin and Vasquez, it appeared settled that it 13 was for the jury alone to weigh the interstate commerce 14 element of the Hobbs Act. 15 this Court held, as a matter of law, that loan sharking and 1 2 3 4 5 6 7 8 9 10 11 12 But in United States v. Fabian, 5 After reciting, at length, other portions in the charge, we concluded that [w]hen examined in its entirety, the jury charge stated several times that it was for the jury to find whether the interstate/foreign commerce element had been proven by the government. Vasquez, 267 F.3d at 89. As to the particular instruction discussed in text, the Court stated that while it may have had concerns with the propriety of that charge, Vasquez s claim fails because he cannot satisfy the fourth prong of the plain error test, that the error affected the fairness, integrity, or public reputation of the judicial proceedings. Id. at 89-90 (internal quotation marks and emendations omitted). 16 1 drug proceeds affect interstate commerce. 2 555 (2d Cir. 2002). 3 Act for his participation in two robberies: the first 4 targeted an assumed loan shark; the second, $300,000 in drug 5 proceeds believed to have been stolen from Miami drug 6 dealers. 7 district court erroneously instructed the jury that 8 interstate commerce was affected as a matter of law by such 9 offenses, and that evidence on the point was insufficient. Id. at 553. 312 F.3d 550, Fabian was convicted under the Hobbs Fabian argued on appeal that the 10 Id. at 553-58. In affirming, we rejected both arguments on 11 the ground that the interstate commerce element of the Hobbs 12 Act was satisfied as a matter of law by proof that the 13 target was the proceeds of drug or loan sharking activities, 14 id. at 557; for that proposition, we cited to United States 15 v. Genao, 79 F.3d 1333, 1336 (2d Cir. 1996). 16 555. 312 F.3d at 17 Genao had rejected a challenge to the constitutionality 18 of the Controlled Substances Act ( CSA ), 21 U.S.C. § 801 et 19 seq., concluding that specific [congressional] findings 20 that local narcotics activity has a substantial effect on 21 interstate commerce rendered the CSA constitutional even as 17 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 applied to purely intrastate drug crimes.6 Genao, 79 F.3d 6 In the CSA, at 21 U.S.C. § 801, Congress set forth its findings that both inter- and intrastate drug dealing affect interstate commerce: (3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because-(A) after manufacture, many controlled substances are transported in interstate commerce, (B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and (C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession. (4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances. (5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate. (6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic. 18 1 at 1337. 2 into our Hobbs Act jurisprudence and held that these 3 congressional findings rendered robberies that target drugs 4 or proceeds inherently within the jurisdiction of the Hobbs 5 Act. 6 proceeds affect interstate commerce, Fabian deduced that 7 when the intended target of a robbery is drug proceeds, the 8 Hobbs Act s interstate commerce element is satisfied as a 9 matter of law. 10 The Fabian Court incorporated the CSA findings 312 F.3d at 555. From the premise that drug Id. at 555-56. The government now urges us to follow Fabian, which it 11 argues has been reinforced by the Supreme Court s decision 12 in Gonzales v. Raich, 545 U.S. 1 (2005). 13 CSA against an as-applied attack to the criminalization of 14 the intrastate cultivation and use of marijuana, and 15 validated congressional findings (in the CSA) that all drug 16 dealing--even if purely intrastate--affects interstate 17 commerce. 18 to regulate such purely local activities that are part of 19 an economic class of activities that have a substantial 20 effect on interstate commerce, id. at 17 (internal 1 2 Id. at 22. Raich upheld the The Court affirmed Congress s power 21 U.S.C. § 801. 19 1 quotation marks omitted); it ha[d] no difficulty concluding 2 that Congress had a rational basis for believing that 3 failure to regulate the intrastate manufacture and 4 possession of marijuana would leave a gaping hole in the 5 CSA, id. at 22. 6 We now reject the proposition--urged by the government 7 here and previously accepted in Fabian--that findings 8 recited by Congress in the CSA, dispense with the need for a 9 jury finding that each element of the Hobbs Act has been 10 proven beyond a reasonable doubt. 11 conflates distinct inquiries. 12 interstate commerce is not an element; so the inquiry for 13 the Court was the sufficiency of findings by Congress to 14 support that legislative act. 15 effect on interstate commerce is an element of the offense; 16 so the inquiry for this Court is the sufficiency of evidence 17 to support a jury finding on that point. 18 This proposition Under the CSA, an effect on Under the Hobbs Act, an Subsequent to Fabian, the Supreme Court has sharpened 19 our focus on the separate consideration of each element that 20 composes an offense. 21 543 U.S. 220, 230 (2005). 22 substitute for proof beyond a reasonable doubt. See, e.g., United States v. Booker, Congressional findings cannot 20 See United 1 States v. Chance, 306 F.3d 356, 377-78 (6th Cir. 2002) 2 (rejecting the proposition that the prosecution is relieved 3 from proving an essential element of [a Hobbs Act] offense 4 by proof beyond a reasonable doubt where Congress has made 5 findings of fact concerning the area regulated ); United 6 States v. Peterson, 236 F.3d 848, 855 (7th Cir. 2001) 7 (observing that the government is conflating its burden of 8 proof under two distinct statutory schemes--the Controlled 9 Substances Act . . . and the Hobbs Act, and holding that 10 the specific findings in the CSA cannot excuse proof of an 11 effect on interstate commerce in a Hobbs Act prosecution 12 (internal citations omitted)); United States v. Gomez, No. 13 99 Cr. 740, 2005 WL 1529701, at *9 14 (McKenna, J.) ( Nothing in [Second Circuit case law] 15 supports the view that the 21 U.S.C. § 801 findings have 16 replaced the traditional Hobbs Act requirement that an 17 effect [on interstate commerce] (however minimal or even 18 potential) be proved. ); see also United States v. Balsam, 19 203 F.3d 72, 89 (1st Cir. 2000) (citing Gaudin for the 20 proposition that the jury instruction that, as a matter of 21 law[,] the businesses at issue in this case were engaged in 22 interstate commerce was erroneous because it violated the 21 (S.D.N.Y. June 28, 2005) 1 defendant s constitutional right to have a jury determine, 2 beyond a reasonable doubt, his guilt of every element of the 3 crime with which he is charged (internal quotation marks 4 omitted)). 5 holding, it is no longer good law.7 6 To the extent that Fabian conflicts with this The parties contest the propriety of the jury 7 instructions given here. In light of the discussion above, 8 we conclude that the district court properly refused the 9 government s request to instruct the jury that if the 10 object of the robbery is to obtain illegal drugs or money 11 earned from the sale of drugs, the requirement of an effect 12 on interstate commerce is satisfied. Trial Tr. at 382 (Oct. 13 25, 2004). 14 violated Parkes s right to have a jury determine, beyond a 15 reasonable doubt, his guilt of every element of the crime 16 with which he is charged. 17 instruction which the district court delivered properly 18 respected that right, because it allowed the jury to pass 1 2 3 4 5 6 7 That instruction would have impermissibly Gaudin, 515 U.S. at 522-23. 7 The Prior to filing, we have circulated this opinion to all active members of this court, and received no objection. See, e.g., United States v. Crosby, 397 F.3d 103, 105 n.1 (2d Cir. 2005); Jacobson v. Fireman s Fund Ins. Co., 111 F.3d 261, 268 n.9 (2d Cir. 1997). We refer to this process as a mini-en banc. See Michel v. I.N.S., 206 F.3d 253, 268 (2d Cir. 2000) (Cabranes, J., concurring). 22 1 upon the Hobbs Act s interstate commerce element: for a 2 robbery to be punishable under federal law, the government 3 must show that if the robbery occurred, interstate commerce 4 would have been affected in some way[,] even if the effect 5 would have been slight. 6 Trial Tr. at 479 (Oct. 26, 2004). Since we conclude that the Hobbs Act requires the jury 7 to determine, beyond a reasonable doubt, whether the conduct 8 affected, or would have affected, interstate commerce, we 9 must consider whether the evidence adduced here was 10 sufficient to support that finding. 11 B 12 13 The Hobbs Act prohibits robberies that affect 14 interstate commerce in any way or degree, 18 U.S.C. § 15 1951(a); so the required showing of an effect on interstate 16 commerce is de minimis. 17 F.3d 380, 389 (2d Cir. 1999); United States v. Silverio, 335 18 F.3d 183, 186 (2d Cir. 2003) (per curiam); United States v. 19 Augello, 451 F.2d 1167, 1169-70 (2d Cir. 1971). 20 jurisdictional requirement of the Hobbs Act may be satisfied 21 by a showing of a very slight effect on interstate commerce. 22 Even a potential or subtle effect on commerce will suffice. See United States v. Arena, 180 23 The 1 United States v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981) 2 (internal citation omitted); see also United States v. 3 Jones, 30 F.3d 276, 284-85 (2d Cir. 1994) ( Sufficient proof 4 to support a violation of the [Hobbs] Act has been presented 5 if the robbery . . . in any way or degree, affects 6 commerce, even though the effect is not immediate or direct 7 or significant, but instead is postponed, indirect and 8 slight. (quoting 18 U.S.C. § 1951(a))).8 9 The limited evidence adduced at Parkes s trial 10 sufficiently supported the jury s conclusion that the 11 attempted robbery of Medina (described by Parkes as a 12 local, part-time marijuana dealer, ) would have affected 13 interstate commerce.9 14 others intended to enter the dealer s place of business, a 1 2 3 4 5 6 7 8 9 1 2 3 4 5 As Beaty testified, Parkes and the 8 We have observed that the reach of the Hobbs Act is coextensive with that of the Commerce Clause of the United States Constitution. United States v. Elias, 285 F.3d 183, 188 (2d Cir. 2002) (citing Stirone v. United States, 361 U.S. 212, 215 (1960); United States v. Leslie, 103 F.3d 1093, 1101 (2d Cir. 1997)). As discussed in text, this means only that a de minimis showing of an effect on interstate commerce is sufficient to satisfy this element; it does not obviate the need for some showing. 9 Because we conclude that the evidence concerning Medina s marijuana dealing was sufficient to support Parkes s Hobbs Act conviction, we need not address his arguments regarding Delilah Lugo s testimony that Medina also sold cocaine. 24 1 little room, and rob the inventory and proceeds spread out 2 on the table --a small but going enterprise. 3 265 (Oct. 25, 2004). 4 yielded one large bag containing marijuana, 58 smaller 5 nickel bags, and $4,000 in cash. 6 narcotics investigator testified that marijuana is almost 7 exclusively trucked into the United States, predominantly 8 through Mexico and that [v]ery little marijuana is grown 9 in New York.10 Trial Tr. at The police search of Medina s room Moreover, an experienced Trial Tr. at 408-16 (Oct. 26, 2004) . (As 10 discussed in Part I.C, infra, reopening to admit this 11 evidence was within the district court s discretion.) 12 sum, a reasonable juror, hearing this evidence, could have 13 found that the attempted robbery of Medina s marijuana or 14 proceeds would have affected interstate commerce in any way 15 or degree. 11 In 18 U.S.C. § 1951(a). 16 1 2 3 4 5 1 2 3 4 10 It may well be that a rational jury could conclude that the interstate commerce element is satisfied by proof that a robbery targeted drugs or proceeds of a drug business that is purely intrastate; but we need not decide that today. 11 The required evidence of an effect need not take any particular form or be offered in any particular quantum-direct, indirect, or circumstantial evidence could suffice. It is a case-by-case inquiry. 25 C 1 2 Parkes claims that the district court abused its 3 discretion by granting the government s motion to reopen its 4 case to present the testimony of an investigator regarding 5 the general nature of the drug trade. 6 defendant moves under Federal Rule of Criminal Procedure 29 7 for acquittal, a district judge retains wide discretion to 8 allow the government to re-open its case to correct errors 9 or [if] some other compelling circumstance justifies a [E]ven after a 10 reopening and no substantial prejudice will occur. 11 States v. Leslie, 103 F.3d 1093, 1104 (2d Cir. 1997) 12 (internal quotation marks omitted); cf. United States v. 13 Suarez-Rosario, 237 F.3d 1164, 1167 (9th Cir. 2001) ( One 14 purpose of Rule 29 motions is to alert the court to omitted 15 proof so that, if it so chooses, it can allow the government 16 to submit additional evidence. ). 17 United In Leslie, we validated the district court s decision 18 to allow the government to reopen its case in order to 19 establish a nexus with interstate commerce. 20 1104-05. 21 of a criminal statute is . . . a jurisdictional 22 prerequisite, and held that a district court may allow the 103 F.3d at We observed that the interstate commerce element 26 1 government to reopen its case to establish this 2 jurisdictional predicate. 3 Id. at 1104. Here, the district court s decision to change the jury 4 charge, which (according to the government) necessitated 5 additional proof to establish the jurisdictional predicate, 6 was a sufficiently compelling circumstance. 7 Parkes was not prejudiced by the presentation of this 8 evidence upon reopening, rather than at some earlier point. Moreover, 9 II 10 11 Parkes asserts that there was insufficient evidence to 12 support Pinkerton liability. 13 review of Parkes s sufficiency challenge to his Hobbs Act 14 convictions apply here--Parkes bears the heavy burden of 15 demonstrating that no rational trier of fact could have 16 concluded that Parkes bore responsibility for Medina s death 17 under a Pinkerton theory of liability. 18 Schwarz, 283 F.3d 76, 105 (2d Cir. 2002). 19 The principles that guided our See United States v. Under Pinkerton v. United States, 328 U.S. 640 (1946), 20 a defendant who does not directly commit a substantive 21 offense may nevertheless be liable if the commission of the 22 offense by a co-conspirator in furtherance of the conspiracy 27 1 was reasonably foreseeable to the defendant as a consequence 2 of their criminal agreement. 3 101 n.3 (2d Cir. 2003) (citing Pinkerton, 328 U.S. at 646- 4 48). 5 in furtherance of the conspiracy, so we need consider only 6 whether sufficient evidence supports the jury s conclusion 7 that it was reasonably foreseeable. Cephas v. Nash, 328 F.3d 98, Parkes does not dispute that the murder was committed 8 An offense by a co-conspirator is deemed to be 9 reasonably foreseeable if it is a necessary or natural 10 consequence of the unlawful agreement. 11 at 648. 12 necessary or natural consequence of the conspiracy to rob 13 Medina, because the conspirators supposed it to be an easy 14 robbery. Trial Tr. at 265 (Oct. 25, 2004). 15 Pinkerton, 328 U.S. Parkes claims that Medina s murder was not a We disagree. Parkes and the others entered Medina s apartment before 16 dawn, with pistols drawn, and (variously) kicked in doors, 17 rounded up and physically assaulted residents (including 18 placing a plastic bag over the head of one), and bound them 19 with duct tape. 20 consequence of a robbery which is premised on the use of 21 overmastering force and violent armed confrontation. 22 district court observed at sentencing: The death of a victim is a natural 28 As the 1 2 3 4 5 6 7 8 9 10 [This is] not a situation where a couple of kids run into a store to run out with a toaster or something . . . and then someone loses his temper, picks up something and kills somebody. This is just not what happened here. You guys went there armed and ready for trouble, and it happened, and somebody got killed . . . . Sent g. Tr. at 32 (Feb. 25, 2005). Viewing the evidence in the light most favorable to the 11 government and drawing all inferences in the government s 12 favor, we conclude that the evidence was sufficient to 13 support the jury s conclusion that Medina s murder was a 14 natural consequence of the conspiracy to rob him. 15 III 16 17 Parkes argues that the district court abused its 18 discretion by refusing to grant a new trial based on newly 19 discovered evidence that cooperating witness Duane Beaty 20 took steps to kill another witness before he was enlisted by 21 the government. 22 Procedure permits the district court to vacate any judgment 23 and grant a new trial if the interest of justice so 24 requires. 25 concern that an innocent person may have been convicted. 26 United States v. Ferguson, 246 F.3d 129, 134 (2d. Cir. 2001) Rule 33(a) of the Federal Rules of Criminal The grant of a Rule 33 motion requires a real 29 1 (internal quotation marks omitted). 2 district court s denial of a Rule 33 motion only for abuse 3 of discretion. 4 (2d Cir. 2006). 5 This Court reviews a United States v. Snype, 441 F.3d 119, 140 Although Parkes contends that Beaty perjured himself by 6 not admitting his plot to kill a witness, Parkes does not 7 point to any perjurious testimony. 8 Gambino, 59 F.3d 353, 364-65 (2d Cir. 1995) (finding that 9 omissions and inconsistencies did not necessarily constitute Cf. United States v. 10 perjury). 11 told you almost proudly, it seemed, that in the course of 12 his lifetime he has committed hundreds of crimes. Trial Tr. 13 at 447 (Oct. 26, 2004); Beaty was not asked to enumerate 14 each one, and his failure to do so sua sponte does not 15 constitute perjury. 16 As defense counsel stated in summation: [Beaty] Parkes argues alternatively that the district court 17 should have granted a new trial on the ground of newly 18 discovered evidence. 19 of newly discovered evidence is granted only in the most 20 extraordinary circumstances. 21 F.3d 115, 118 (2d Cir. 1993) (emphasis in original). 22 discovered evidence supports the grant of a new trial only A motion for a new trial on the ground United States v. Spencer, 4 30 Newly 1 if the defendant demonstrates that the evidence could not 2 have been discovered through the exercise of due diligence 3 before or during trial, and that the evidence is so 4 material and noncumulative that its admission would 5 probably lead to an acquittal. 6 111 F.3d 307, 322 (2d Cir. 1997) (quoting United States v. 7 Alessi, 638 F.2d 466, 479 (2d Cir. 1980)). 8 impeachment evidence is not material, and thus a new trial 9 is not required when the suppressed impeachment evidence 10 merely furnishes an additional basis on which to impeach a 11 witness whose credibility has already been shown to be 12 questionable. 13 Cir. 1996) (emphasis in original) (quoting United States v. 14 Payne, 63 F.3d 1200, 1210 (2d Cir. 1995)). 15 United States v. Zagari, [N]ew United States v. Wong, 78 F.3d 73, 79 (2d Parkes cannot satisfy this exacting standard: (i) the 16 evidence regarding Beaty s plotting is additional 17 impeachment; (ii) according to Parkes, Beaty s 18 unreliability was the central thrust of the defense 19 summation ; (iii) the new evidence does not concern the 20 central question of Parkes s involvement in the attempted 21 robbery and murder; and (iv) there was ample corroborating 22 evidence of Parkes s involvement independent of Beaty s 31 1 testimony. In short, Parkes is unable to demonstrate that 2 the jury s consideration of evidence of Beaty s plotting 3 would probably [have led] to an acquittal. 4 F.2d at 479. Alessi, 638 5 IV 6 7 Parkes impugns the prosecutor s statements in summation 8 that [d]rug dealing affects interstate commerce and that 9 robberies that seek drugs and drug money do so as well. 10 Trial Tr. at 439-40 (Oct. 25, 2004). 11 these arguments constituted an improper attempt to misstate 12 the law to the jury. 13 According to Parkes, As the district court observed, these statements were 14 (at the very least) arguably not inappropriate. The cold 15 record doesn t permit an assessment as to whether the 16 statements were intended as a misstatement of law (as Parkes 17 argues), or a permissible argument of fact (as the district 18 court found). 19 Parkes s motion for a mistrial based on the prosecutor s 20 statements and observing I only heard a factual 21 assertion ). 22 statements would not warrant reversal. See Trial Tr. at 443 (Oct. 26, 2004) (denying But even if they were inappropriate, the 32 1 To warrant reversal, the prosecutorial misconduct must 2 cause the defendant substantial prejudice by so infecting 3 the trial with unfairness as to make the resulting 4 conviction a denial of due process. 5 Elias, 285 F.3d 183, 190 (2d Cir. 2002) (internal quotation 6 marks omitted). 7 consider the severity of the misconduct, the measures 8 adopted to cure it, and the certainty of conviction in the 9 absence of the misconduct. 10 11 United States v. In assessing the alleged misconduct, we United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995). These challenged statements were isolated. [I]solated 12 remarks are ordinarily insufficient [to warrant reversal]. 13 Elias, 285 F.3d at 191. 14 opportunity in his summation to dispute the government s 15 assertions, and took it, arguing that the prosecutor flatly 16 misstated the law to you, and that [t]here has to be 17 pro[of] that the drug dealing in this case affects 18 interstate commerce. 19 Tr. at 454-56 (Oct. 26, 2004). 20 instructions to the jury--that it was for the jury to 21 determine whether the attempted robbery affected interstate 22 commerce--cured any possible prejudice. Defense counsel had adequate And there was no such proof. 33 Trial In any event, the judge s And even further 1 assuming, arguendo, that the prosecutor s remarks were both 2 improper and uncured, they would not have so infect[ed] the 3 trial with unfairness as to make the resulting conviction a 4 denial of due process. 5 quotation marks omitted). Elias, 285 F.3d at 190 (internal 6 V 7 8 9 The government has brought to our attention two errors in the district court s calculation of Parkes s sentence. 10 First, the statutory maximum term of imprisonment for 11 conviction of 18 U.S.C. § 922(g) (felon-in-possession of a 12 firearm) is ten years, not the twenty years to which the 13 district court sentenced Parkes. 14 United States v. Riley, 452 F.3d 160, 164 (2d Cir. 2006) 15 (observing that the statutory maximum prison term for 16 violation of § 922(g)(1) was 120 months ). 17 18 U.S.C. § 924(c) is a lesser included offense of 18 U.S.C. 18 § 924(i)(1), the district court erred by imposing sentences 19 on both. 20 292, 306-07 (1996). 21 and remand for re-sentencing. 22 See 18 U.S.C. § 924(a)(2); Second, because See, e.g., Rutledge v. United States, 517 U.S. Consequentially, we vacate the sentence * * 34 * 1 2 In light of the foregoing, we affirm the conviction but remand for re-sentencing. 35

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