Writ of Fido

Anyone with an AM radio knows that 21st-century America has become a nightmare dystopia of senseless centralized regulation and ferocious federal overreach.

If you doubt it, just consider (as the U.S. Supreme Court did Tuesday) that an enterprising criminal gang cannot even rob their own local weed dealers without ending up in federal court. It’s really enough to make one give up the gangster life altogether. On Tuesday, David Anthony Taylor asked the Supreme Court to remedy this unsatisfactory state of affairs. Mercifully, he seems unlikely to succeed.

I reach that conclusion on the basis of a desultory and sparsely attended oral argument, which will be remembered, if at all, largely because it surely is one of only a very few arguments in Supreme Court history in which a lawyer addressed one of the justices as “ma’am.”

Taylor was a member of a resourceful outfit called the “Southwest Goonz,” whose campaign of home invasions spread terror through Roanoke, Virginia, during the first decade of this century. The Goonz particularly liked to target drug dealers—as they tend to have, well, drugs, and money lying around, and they are also oddly reluctant to call the police after being robbed. On two occasions in 2009, Taylor and his fellow Goonz busted into the homes of individuals they thought to be drug dealers. The first time, they got only one joint and $40 and, the second time, nothing but a cell phone. Nonetheless, when the Drug Enforcement Administration busted the Goonz, the unforgiving feds charged Taylor with violating the Hobbs Act, which makes it a federal crime to obstruct, delay, or affect commerce by robbery or extortion.

Taylor’s lawyer asked to introduce evidence that all the pot Taylor targeted came from inside Virginia. The trial judge refused, telling jurors instead that the government had to prove beyond a reasonable doubt only that “the defendant reduced the movement of articles and commodities in interstate commerce, in this case, illegal drugs and drug proceeds.” The jury convicted, and Taylor was sent to prison. The Fourth Circuit rather briskly affirmed his conviction, holding that “to focus exclusively on an individual act would wholly undermine Congress’ purpose in adopting the Hobbs Act: to protect commercial, interstate activity from criminal disruption.”

Any discussion of Congress’s power over “commerce among the several states” brings out the persistent myth that if you’re just really, really careful to only use in-state materials, you can somehow completely escape federal regulation. I am not sure what an entirely in-state activity would look like, but it doesn’t matter, because, under the case law, the Commerce Power can reach any “commercial activity” anywhere that “substantially affects” interstate commerce. So the question, first-year students, would be: (1) Is dealing weed a “commercial activity”? (Hint: Yes.) (2) Does the weed market “substantially affect” interstate commerce? (Hint one: Duh. Hint two: In 2005, Gonzalez v. Raich upheld the criminal prohibitions of the Controlled Substances Act, a regulation of “interstate commerce,” even as applied to citizens with California marijuana cards who grew their own pot or got it free from the neighbors.)

On Tuesday, Dennis Jones, Taylor’s hapless but courtly lawyer (it was he who addressed Justice Elena Kagan as “ma’am”) haltingly tried to convince the Court that Taylor should have been allowed to call “a retired DEA agent or an ATF agent or a retired local police officer who had years of experience in that field” to testify that the drugs he was after were local. Virginia, Jones pointed out needlessly, has “the ability to grow marijuana in-state.”

“What difference would that have made under the terms of the Hobbs Act?” Kagan asked. “[T]he Hobbs Act only requires an effect on commerce, and then commerce is defined: Commerce means all commerce over which the United States has jurisdiction. Now, for sure the United States has jurisdiction over interstate commerce, but under Raich, it also has jurisdiction over intrastate drug trafficking. And so, if you just sort of put the pieces of the statutes together, it seems to make it completely irrelevant whether the drug trafficking was intrastate or interstate, because, in either case, it was commerce over which the United States has jurisdiction.”

Jones struggled for the rest of his time to get past that question—and he didn’t get much help from any of the conservative justices, who have, in other cases, worried about federal overreach in the criminal area. Justice Samuel Alito, whose lock-’em-up instincts often seem stronger than his passion for “state sovereignty,” pointed out the paradox of Jones’s argument: Congress can outlaw all growing of marijuana, “but according to you, it cannot prohibit ... the theft of marijuana?” Jones had no real answer for that one; he wandered vaguely into a new argument—that the government hadn’t proved that Taylor’s victims were actual drug dealers at all. Justice Anthony Kennedy, with uncharacteristic sharpness, cut him off: “[T]hat’s not the question presented” in Taylor’s petition for cert, Kennedy said. “Your question presented assumed that he’s a drug dealer, so don’t argue that.”

Four justices, for reasons I cannot fathom, voted to take this case. They may have seen it as part of the ongoing crusade of the late Justice Antonin Scalia to require the government to prove all elements of a crime beyond a reasonable doubt. That concern surfaced when Assistant Solicitor General Anthony Yang rose to argue for the government. Yang led the justices through the Con Law 101 exercise: Drug dealers are merchants involved in commercial activity; robbing them reduces their inventory; ergo, the effect on commerce is clear. Justice John Roberts, who is no fan of federal criminal jurisdiction, pushed back: “What evidence could a defendant put on that would prevent the establishment of the jurisdictional element?” Kagan helpfully suggested that a defendant might get off by proving that the robbery targeted a “home grower” rather than a dealer. Yang, like any good government lawyer, was not willing to concede that the Hobbs Act does not already extend to the robbery of a home grower as well.

“I’m not aware,” Roberts said, “of any case, where the burden is on the government to prove something beyond a reasonable doubt, an element of the crime, and you’re saying there’s no … evidence that [a] defendant could introduce [that] could rebut the government’s showing in any case.”

Justice Ruth Bader Ginsburg asked if the government was reaching down in this case to arbitrarily grab hold of a minor local crime: “It’s very odd that this is a federal case. I mean, they—in fact, they took, what, a couple of cell phones, $40?” Yang responded that Taylor was just one Goonz defendant in a large federal operation—requested by local law enforcement—that broke up a dangerous gang.

“The DEA tracked about 30 home invasions to this gang,” he said. “This particular defendant was a bit of a tagalong.”

“The ‘tagalong,’” Roberts said, “he got 20 years.”

“[H]e was involved in some very serious crimes,” Yang responded.

Perhaps, when the justices get into conference, they can torture this sketchy record until it presents some significant issue of over-criminalization, but I can’t see it. (If the Court splits 4-4, Taylor’s conviction will be upheld without an opinion, but I doubt that Taylor will get even that many votes.) Supreme Court insiders call bad cases “dogs.” The argument in Taylor v. United States was a splendid way to pass a rainy morning; the case itself may qualify for a writ of Fido.