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United States v. Gale

United States District Court, E.D. Virginia, Newport News Division

July 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN GALE, Defendant.

          MEMORANDUM OPINION AND ORDER

          RAYMOND A. JACKSON, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Brian Gale's ("Defendant's") Motion to Dismiss Count 1, Doc. 15, and Defendant's Motion to Dismiss Count 2, Doc. 14. The United States of America (the "Government") opposes both Motions to Dismiss. See Docs, 19, 20. For the reasons stated herein, the Court DENIES both Motions to Dismiss.

         I. BACKGROUND

         On May 10, 2017, a grand jury indicted Defendant on two (2) Counts: (1) interference with commerce by robbery, in violation of 18 U.S.C. § 1951 (hereinafter "Hobbs Act robbery, " as it is commonly known); and (2) discharging a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (hereinafter "§ 924(c)"). Doc. 1. Both charges relate to the Defendant's alleged actions at Ricco's Pizza, located at 55 West Mercury Boulevard in Hampton, Virginia. See Id.

         Defendant filed the instant Motions to Dismiss both Counts of the indictment on June 12, 2017. Docs. 14, 15. The Government responded in opposition on June 29, 2017, Docs. 19, 20. Defendant did not reply.

         II. LEGAL STANDARD

         Federal Rule of Criminal Procedure 12(b)(1) states that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." One motion that a defendant may make before trial is a motion to dismiss an indictment or counts in an indictment alleging "a defect in the indictment or information." Fed. R. Crim. P. 12(b)(3). A court should only grant a motion to dismiss if a defendant "demonstrate[s] that the allegations, even if true, would not state an offense." United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004) (citing United States v. Hooker, 841 F.2d 1225, 1227-28 (4th Cir. 1988) (en banc)).

         III. ANALYSIS

         A. Motion to Dismiss Count One

         Defendant seeks dismissal of Count One of the indictment, which charges him with Hobbs Act robbery, because he argues that the statute violates the Tenth Amendment to the U.S. Constitution both facially and as applied to him. Doc. 15 at 1.

         The Tenth Amendment states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." U.S. Const, amend. X. A court must consider two issues to determine whether a statute violates the Tenth Amendment: "First, whether the regulation it embodies is within Congress' power as being within those enumerated in the Constitution[;] [s]econd, whether, even if so, the means of regulation employed yet impermissibly infringe upon state sovereignty." United States v. Bostic, 168 F.3d 718, 723 (4th Cir. 1999) (quoting United States v. Johnson, 114 F.3d 476, 480 (4th Cir. 1997) (citing New York v. United States, 505 U.S. 144 (1992))).

         i. Facial Challenge

         On the first inquiry of the Tenth Amendment test, Defendant argues that the Hobbs Act impermissibly grants the federal government a general police power. Doc. 15 at 2. He observes that Congress cannot punish a criminal act wholly within a state unless the offense has some relation to an enumerated power of Congress. Id. (citing Bond v. United States, 134 S.Ct. 2077, 2086 (2014) (quoting United States v. Fox, 95 U.S. 670, 672 (1878))). He concedes that the Fourth Circuit finds that Hobbs Act robbery satisfies the Commerce Clause of the U.S. Constitution "where the instant offense has a 'minimal effect' on interstate commerce." Id. at 3-4 (citing United States v. Tillery, . 702 F.3d 170, 174 (4th Cir. 2012)). To counter that authority, he insists that most cases do not adequately consider the conflict between the "federalism and individual liberty interests protect by the Tenth Amendment" and the expansive reading of the Commerce Clause. Id. at 4. He also argues that Hobbs Act robbery exceeds even the current expansive understanding of the Commerce Clause because it criminalizes conspiracy and attempt, which have no tangible or calculable impact in interstate commerce. Id. at 3-4.

         On the second inquiry of the Tenth Amendment test, Defendant argues that the Hobbs Act "undermines the States' ability to regulate and punish criminal conduct." Id. at 2-3. He insists that it impermissibly allows the federal government to ...


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