devil in U.S. v. Jones: Church burnings, federalism, and a new look at the Hobbs Act, The

Washington and Lee Law Review, Fall 2002 by Carter, Thomas Heyward III

I. Introduction

[In the wake of Lopez,] [t]his is not the first occasion on which this Court has agonized over the propriety of the gambit of prosecuting criminal conduct which has historically and traditionally been prosecuted under the state system as a federal crime in order to maximize punishment.1

The "agon[y]" of the Fifth Circuit played itself out in United States v. Hickman.2 After Hickman admitted to participating in a series of robberies in the Beaumont, Texas area, a federal jury convicted him of six separate violations of 18 U.S.C. [sec] 1951, also known as the Hobbs Act.3 In March 1997, the district court sentenced Hickman to 3,180 months imprisonment, or about 265 years.4 On appeal, Hickman claimed that the amounts he stole from the businesses "were fairly trivial or that the businesses themselves only had a minor role in interstate commerce."5 Hickman cited United States, v. Lopez6 for the proposition that the government must show that each robbery had a "substantial" effect on interstate commerce.7

Before Lopez, a federal district court would have considered such an argument a non-starter. And even after Lopez, very few district courts engaged in serious discussion of re-examining the standard of review for interstate commerce claims.8 So when the Court of Appeals for the Fifth Circuit stated that a "review of Supreme Court authority raises serious questions regarding whether aggregation principles can be used as the Commerce Clause jurisdiction hook under the Hobbs Act when the underlying crimes arise from a purely local crime spree,"9 the court signaled a new level of concern with interstate commerce issues as applied in federal criminal statutes. Unfortunately for Hickman, the Fifth Circuit declared itself bound by circuit precedent holding that the Government need only prove aggregation to establish the jurisdictional hook in a case involving such local conduct.10

The Fifth Circuit found the facts in Hickman sufficiently disturbing to order an en banc rehearing, which is the only method for overturning such precedent in that circuit.11 A full sixteen-judge panel considered arguments during the rehearing, and on June 21, 1999, the Fifth Circuit issued its decision.12 The vote was a tie. Precedent stood. In his dissenting opinion, Judge Higginbotham bemoaned the "ad hoc and random use of the Hobbs Act" and the "dramatic reach of federal power."13 But without further guidance from the Supreme Court, such an argument could make little headway. Then came Jones v. United States .14 This Note addresses whether the circuit courts have used Jones correctly as a means to end judicial agonizing in cases like that of Masontae Hickman.

In the years immediately following Lopez, there was an abundance of judicial teeth-gnashing in some circuits, but little actual change. In 2000, the Supreme Court's decision in United States v. Morrison15 helped dispel the notion that Lopez was simply a flash in the pan.16 However, it was not until the Court took up the case of Dewey J. Jones, accused of lobbing a Molotov cocktail into his cousin's home, that the circuit courts received guidance in the application of existing and regularly used federal criminal statutes.17 Given the strong language of Jones v. United States, the judicial ambivalence should have abated. Unfortunately, through stubborn adherence to traditional modes of jurisprudence, many circuit courts still refuse to heed the Supreme Court's call. This refusal to read the writing on the wall has left the circuits split over the proper scope and reach of several federal criminal statutes. As a result, the justice courts dispense through these laws remains uneven and possibly unconstitutional.

This Note examines the effect of recent Supreme Court decisions on the application of federal criminal statutes to traditionally state-prosecuted crimes. Although this Note discusses the post-Lopez, pre-Jones wanderings of the circuit courts, the primary focus is an analysis of the current application of these federal criminal statutes. After a careful dissection of the Court's unanimous decision in Jones, this Note considers the proper application of the Court's teachings. This Note uses circuit court opinions regarding church burnings as a method of exploring issues directly related to the holding in Jones, but with a more expansive reach. This Note also employs the Hobbs Act to illustrate the divergent opinions of the circuit courts, as well as to demonstrate the potentially enormous impact of Jones on the daily conduct of federal prosecutors.18 In conclusion, this Note proposes combining the Supreme Court's two-part test in Jones with a rationality-in-aggregation standard to reform the operation of the Hobbs Act.19 Such a test would leave the Hobbs Act intact and, hopefully, would allay the concerns of those who feel the cold shadow of the federal government falling across plains traditionally occupied by the states.

II. United States v. Lopez

The 1995 decision in Lopez marked a turning point in Commerce Clause jurisprudence. For the first time since 1936, the Supreme Court struck down a statute on the grounds that Congress exceeded its power to regulate interstate commerce.20 Stating that there were "three broad categories of activity that Congress may regulate under its commerce power,"21 the Court focused its decision on the aggregation principle of the third category, the ability of Congress to regulate "those activities having a substantial relation to interstate commerce."22 The Court went onto find that the Gun-Free School Zones Act, 18 U.S.C. [sec] 922(q)(1)(A),23 exceeded congressional power because the nexus between the prohibited acts and interstate commerce as a whole was too attenuated.24 Even in the aggregate, the Court found that the harmful effects of guns in schools did not have a sufficiently substantial effect on interstate commerce.25 While the Court limited its holding to one specific statute, the implications resonated throughout vast areas of federal law.