Mimesis Law
19 January 2020

Making a Federal Case Out of Attempted Robbery of Marijuana

Apr. 15, 2016 (Mimesis Law) — When thinking about robbery, most readers probably imagine something like a hold up at the local 7-11. After all, a convenience store robbery is commonplace enough that they have a measuring strip on the door frame.  Or perhaps you imagine something more like this: an otherwise law abiding citizen is going about their day, doing such things as drinking a Starbucks latte, listening to iTunes, and contemplating the 1994 Crime Bill and Black Lives Matters. Then, caught completely unaware, somebody sneaks up on John Q. Public, points a gun at him, demands money, and departs with John’s wallet. Hey, don’t blame me; your imagination is a dangerous place.

Most people probably do not think about rolling drug dealers as robbery. But maybe if you’re among the sufficiently cool, then you’ve seen The Wire and remember stick-up man Omar Little doing that very thing. In fact, there is a certain elegant logic in robbing drug dealers. They have both cash and valuable, relatively easy to sell merchandise on hand. And when you rob drug dealers, they won’t call the police. Well, at least, drug dealers do not usually call the police. Of course, on the flip side, drug dealers are aware of that self-help is the only help and thus are often armed.

Although it might make sense after reflection, it may be initially surprising to learn that robbing drug dealers is just as much of a crime as robbing the 7-11. The drug traffickers may not call the police to report the robbery, but it’s still a robbery. It might be more surprising to learn that robbing drug dealers can lead to a federal prosecution. If you’re not surprised yet, then how about a federal prosecution for the robbery of drugs without any drugs actually being stolen? Perhaps you are not as surprised as when the identity of who shot Mr. Burns was revealed, but you’re probably still at least somewhat surprised.

David Taylor is both an unlucky and a bad stick-up man. Taylor and his Virginia-based crew, confusingly named the Southwest Goonz, broke into two different homes looking for marijuana. In both cases, he and his crew found no drugs. So they settled for taking some cash and jewelry. And for Taylor’s trouble, he was prosecuted, convicted, and sentenced to 28 years. That probably works out to stealing less than a hundred bucks for each year he will spend in prison—not a well calculated decision. Granted he did break into two houses and hold the occupants at gun point, so it’s hard to feel sorry for him.

While you probably are not weeping for Taylor, if you have a familiarity with how our federal system works, then you may be wondering, how did the feds have jurisdiction to prosecute this case? In theory, crime is a local matter, left to however the States decide to define offenses, prosecute cases, and punish offenders. Under this theory, the federal government only has authority to criminalize conduct that relates to one of Congress’ enumerated powers. That is more or less the theory we’ve lived with since McColloch v. Maryland.

In most cases the feds create the jurisdiction hook through our old friend the Commerce Clause. And that is indeed the case with the Hobbs Act, under which Taylor was prosecuted. So, if the robbery affects commerce, particularly interstate commerce, then there is federal jurisdiction.

Returning to Taylor, he robbed two houses looking for marijuana but only stole cash and jewelry. Anybody can plainly see how this affects interstate commerce. Oh, wait. No, you don’t see how that’s the case? Well, we can thank our old and dear friend, legal fiction for creating federal jurisdiction.

You see drugs are different because they always affect interstate commerce. The reason for that is because years ago some farmer grew wheat for his own consumption, in violation of a New Deal policy. Justice Jackson’s majority opinion concluded, quite logically, that if you aggregate enough small intrastate actions, then collectively they will affect interstate commerce.

The essence of the law springing from the facts of that case was that if enough people feed themselves and sell only the remaining excess, then Congress’ plan to raise prices will be thwarted because a number of potential consumers will not enter the marketplace thus depressing wheat prices. At a minimum, that is superficially plausible, and that’s good enough for the Commerce Clause. On the other hand, it appears unlikely that Justice Jackson ever read the Candle Maker’s Petition.

Treating marijuana cultivation as affecting interstate commerce as deleteriously as subsistence farming was endorsed by the Supreme Court in Gonzales v. Raich. Although the facts and law were different, the result was the same, i.e. growing anything can be almost always framed in such a way to permit federal regulation or prohibition. Seeing the obviousness of that fact Justice Thomas wrote the following:

Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States.” Art. I, §8, cl. 3. Ante, at 19. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California–it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

The smug ghost of George Mason is no doubt feeling vindicated.

Taylor’s conduct demonstrates how far down the rabbit hole this reasoning can go. In essence, he attempted to steal marijuana. And the Hobbs Act criminalizes attempts, unlike many other federal crimes. Because of the fiction from Raich that marijuana is always in interstate commerce, the inescapable conclusion that attempting to rob someone’s marijuana stash is a federal crime. Indeed, during oral argument, the Government was asked if the robbery of single marijuana cigarette would permit a federal prosecution. The attorney avoided answering because an affirmative answer is the logical answer. And that result would be just plain silly.

Here, there was no actual impact on interstate commerce because of an attempted robbery. And if the interstate commerce element was considered a factual element and had a mens rea, then it is doubtful that the federal government could be have obtained a conviction.

Even though this particular conduct appeared to be part of an organized criminal enterprise, local law enforcement and prosecutors should be ones handling these particular instances of criminal conduct. As the hypothetical of the robbery of a single marijuana cigarette demonstrates, this was a matter of local concern rather than a federal one.

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  • Chris
    16 April 2016 at 9:28 am - Reply

    The Commerce Clause has become the exception (or enumerated power) that has swallowed up the whole rule. Or swallowed up both the defunct 10th Amendment and the very central idea of our Constitution establishing a national government of limited and enumerated powers.

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