United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, UNITED STATES DISTRICT JUDGE
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
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
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.
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)).
Motion to Dismiss Count One
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.
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))).
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
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 ...