we'll hear argument first this morning case fourteen six one six six taylor versus united states mr jones the second is and that the consequence of either the extortion of the robbery or creates an interference with commerce the effect on commerce is a jurisdictional element of the crime and like all elements must be proven beyond a reasonable doubt through the introduction of particularized evidence necessary to establish this element in the case in this case the government was not required to prove the effect on commerce element which exclusively in homegrown marijuana if you if you had that opportunity how would you have shown it is that marijuana in question was well retired local police officer who had years of experience in that field qualifying that person virginia is is a state like all the other states that has the ability to grow marijuana and state has been going on for years and years and years there's not necessarily we sided in our brief not only the a couple of local news articles and events where in both the tort county i think the most current one was two thousand and thirteen about the time we were before for start and that could show that interstate commerce as you said in your opening statement the hobs that only requires an effect on commerce and then commerce is defined commerce means or commerce over which the united states has jurisdiction now for jurisdiction over interstate commerce but under raich it also has jurisdiction over interest state 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 in trust state or interstate because in either case it was commerce over which the n ited states has  has jurisdiction over interest states drug traffic and it does so why isn't that enough because this statute again does not require that there be an effect on interstate commerce it effects it requires that there be an effect on commerce as defined in the statute and as defined in the statute all it says is that the commerce has to be one of a kind over which the united states has jurisdiction and reach says the united states and even if if you buy the regulation of commerce does not in an obvious way off have an effect on the calmer well then you could make the same argument if it was conceded that  economic expert to show that there's an effect on interstate commerce when there's been a robbery that's your position no you are not not all right well then lever that but then how do you explain your answer that effect is the key word here well just the crude concluded that it isn't i ability of that business to purchase its coathangers for example they came from china that came from mexico that was also cleaning solvents that that was purchased and used by that business  manufactured and transported from georgia to virginia the evidence in in those cases shown that want ever the subject of the of the commodity that was being so used by that particular enterprise had had travel and interstate commerce and in some instances the individual himself a drabble to an interstate commerce so you had evidence to that f of a controlled substance just as it has put enacted statutes prohibiting the growing of marijuana or the production of other controlled substances excuse me could i could  from air view however you would still have to show that effect that impact that influence only marijuana only order or drug trafficking on a case by case basis then why can it prohibit the growing of marijuana across the board without proving anything about the particular marijuana in question but according to you it cannot prohibit the sale of but because there's there's not made for it but that would require evidence as to that effect or that interference or that even the influence of commerce piece of it why is that needed why is that not needed in a situation in which the person is growing marijuana for personal use from our view the twenty one from what the effect on interstate commerce is itself it's their stand alone elements from our view and since it's a criminal element that must be proven beyond a reasonable doubt if you stop just at the robbery and so that as a result of the subject of that robbery being a drug dealer in toto with without looking at the specific piece with what the drug dealers doing business and whether it's travel in interstate commerce or whether it's for example methamphetamine when you manufacture methamphetamine which you clearly grow controlled on the but why is that because that's what i was saying at the beginning that it seems clear to me that under the terms of the hobbs act the hobbs act does hit robberies that affect commerce rate says commerce includes both use the word regulate rather than well understood very easily have done that well but i said i use the word effects i didn't use the word regulate i said the hobbs act for him it's robberies that affect commerce commerce is either interstate marijuana trafficking or intrastate marijuana trafficking under the definition in this statute so you have the government has to regulated by congress in that situation if it if the commodity itself is a standalone if that's interpretation of the statute then commerc affected by by the taking of the commodity so you just because it's regulated nothing more well i guess this goes back to justice kennedy's question i mean it seems to me pretty self evident that a robbery of a business affects a business wouldn't you think that that's right and i don't thing that the word affects is doing a whole lot of work here because of course a robbery of a business affects a business right y so so it's not really affects that's the problem here the problem seems to be that you are resisting the notion that the business could be entirely intrastate but when i'm suggesting is that the terms of the itself given rage make clear that the business can be intrastate because the definition of commerce here doesn't say interstate commerce it says commerce over which the united states has jurisdiction and because of rage we know that the united states has jurisdiction over even interest state drug dealing that what is this the standard of proof that you hold congress to when it exercises jurisdiction over intrastate businesses with an effect on interstate commerce or interstate co somebody challenges congress exercise of jurisdiction because it doesn't fit within the interstate commerce or effect on interstate commerce and the statutes evaluative according to what standard i'm not sure that i understand the question the style somebody says you know challenges as we've had challenges in cases like lopez and others the congress you don't have authority to regulate this matter because it doesn't involve interstate commerce doesn't have an effect on interstate what we're saying if it is the plane reading of it is if in their wisdom the element is to establish this element then it becomes an element of the criminal offense and congress has has not provided for that element and they are then we believe that this court is the place to have that adrenaline think there's any question that this is  jurisdictional element in the jurisdictional element has to be proven that's not the issue the issue is the meaning of the jurisdictional element and if the jurisdictional element means as interpreted in  in a controversial area of constitutional law but it's a precedent and you're not challenging it so the jurisdictional element as interpreted in that case is anything that has an effect on anything any state any purely any local activity that is of a type which if taken in the aggregate would have a substantial effect on interstate commerce that falls within the commerce cla but the jury is instructed in that way and that's basically the way i think it was instructed here all they have to find is that there was a fast and it was a robbery of drugs and had some effect on the supply of  in this case i think they were instructed that our our view that instruction was that it was like per or strict liability instruction that if it's because in a destruct recollection a judge conference that tale that if this happened this is said yeah well that's that's the that's what rice that's the interpretation of the commerce clause do you want the jury to decide what being interesting i mean there are those who think that juries once upon a time had the authority to decide legal issues and you want them to decide whether the majority of the dissent was correct and  there was no showing that the that they had actually been engaged in a drug dealing enterprise it was rumored that a person had been robbed not mr lynch but a person had that mr worley had acknowledged selling marijuana one time about three or four years prior to this incident there was simply no showing in the evidence of this case that you even had a commercial enterprise going being conducted at either one of these residences it's that it was an inference of phone an inference that seems to me a different kind of argument that you're making now now you're not saying that the question is whether the marijuana that was being dealt was interested or interstate now you're suggesting that what you really wanted to prove with this that that this person wasn't a d n r at all is that correct that's that's that's where we got here on this case was was the absence of particularized evidence as to what was what was taking part figure and we weren't able to present to the ruins we simply were not able to address i evidence that that they were in in the business of trying to run drug dealers because they thought they'd find either the grounds o clear it up because when you start reviewing the evidence concerning the word was robbery oh there's no evidence that he was a drug dealer but that's not the question presented your question presented assumes that he's a drug dealer so no argue that i'm i was trying that there was a we know that there's a drug dealer here we have to take the case on that basis all right so we're talking with the interstate in mobile so it's seems to me that you you just have not raised the point there was no evidence that he was a drug dealer what an air point in our petition was is is that there was a failure to present particularized evidence of the impact or the effect on only interstate commerce as a result of the activities of these people and we were precluded from addressing that the whole  of the case and when it was presented in the district court was was to follow number one that this interstate that the interstate commerce element commodity to that in between belong to a commercial participant and third it was a commercial participant in an established interstate market in marijuana that is a federally controlled substance over which congress has exercise so if it were commercial aspect then you wouldn't you wouldn't you would have to demonstrate jurisdiction beyond a reasonable doubt no i think there it was when you get out of the commercials fear the courts of appeals have drawn a distinction between robberies of businesses that are engaged in commerce says the victims were here and true individuals who just get robbed and i think the courts have fairly uniformly recognized that the while the robbery of a business is kind economic in nature and directed more directly implicates commerce clause concerns when there's a robbery of an individual the links are much more attenuated and there's a longer chain of causation to get kong colors and so in those contexts even within  sure congress regulates the trade in marijuana it's in the marijuana trade it's difficult to i think come to any other conclusion that the robbery of such marijuana from marijuana dealers engage in trade over congress doesn't have to prove beyond a reasonable doubt before exercising its jurisdiction that there's an effect on interstate commerce that's what if you're prosecuting somebody you do have to show beyond a reasonable doubt that the elements of the crime and satisfied well what you do need to show is that the robbery affected commerce over which the united states had jurisdiction and you know reasonable doubt would be unreasonable but we do know that congress has that from race that congress does jurisdiction over the entire marijuana trade now the reason jurisdiction as race explained explained was a now analyzed under the rational basis review that often occurs in this type of context but the fact of the matter is at the end of the day there is no doubt it is a certainty that congress has over the marijuana trade and so when you and i suppose i suppose it's maybe an academic question but your conclusion that congress has jurisdiction over the marijuana trade is based on a different standard of proof and the criminal one so yes you can sa course congress has jurisdiction here but that has been established only and i guess a rational basis standard but now you have to show congress has jurisdiction pursuant to a much more daunting standard of proof we're not shying away from the standard of proof but what as we explained the question of whether a robbery affects interstate commerce has both legal elements as well as factual elements the factual elements as we explained in our brief in this case involved did the robbery occur or they were robbing and targeting the marijuana of marijuana dealers but the legal question which judges every day in structure is under what the law is and go down teaches us that juries must follow those instructions the legal conclusion is that the united states has jurisdiction over the entire marijuana trade now there would be strange anomalies if juries were allowed to relive a gate ration every case is there in effect you know just congress have jurisdiction over intrastate commerce juries would be coming up with divergent results over the question whether congress has jurisdiction over intrastate marijuana trade contrary to congress's own decision in the decision of this court that is a purely legal question it is you can prove beyond a jury you heard evidence that there was a robbery of a drug dealer and you were instructed as a matter of law you were in on that that the marijuana tracked the marijuana trade is a sufficiency of the evidence not the jury instructions and what wasn't but during structures are are basically on page eight of our brief we've replicated the most relevant portions of the charge and you know that there united states has jurisdiction and then said that that can be satisfied by reducing them having a showing in effect that effect can be you know i think this in here is quite  any kind of effect would be sufficient and then there was an explanation that you know that the reduction of articles are coming commodities in interstate commerce in this case illegal drugs and drug proceeds so when we did it seems to me that this i think the judge could have done it had a much more government friendly instruction in this case and in fact given the race the judge has as i was just explaining could have instructed the jury that the mere all the marijuana trade that is both the actual trade within and interstate trade commerce of which the united states years dick has drifted but if if if if i can make sure i understand the jury is told that you have to find beyond a reasonable doubt that this defendant affected commerce over which  the jury that makes the relevant historical facts to the case and applies that legal instruction to the facts in order to find the relevant jurisdictional element beyond reasonable doubt is the defendant allowed to present any evidence to the contrary well  decide they've got to prove something beyond a reasonable doubt all the united states has to do is this and then it's and the judge instructs the jury that they've satisfied that the defendant is entitled to present evidence that contradict all the relevant facts but the i think what you're asking about is whether the fact that this particular marijuana might have been grown in state right i think that what you're saying would somehow undermine the jurisdictional and as a matter of law it does not what it in any merit in a marijuana case what evidence could a defendant put on that would prevent the establishment of the jurisdictional element the defendant could show that there was not an attempt to rob a drug dealer of marijuana you know that goes to the first question of whether there was a robbery was there a robbery did it have an effect on commerce within the jurisdiction of the united states is there any evidence that a defendant could be allowed introduced go into the second element well if they were targeting marijuana in that robbery as was the case here from marijuana dealers who were trading but that's the question mr yan from marijuana dealers i mean it seems to me the defendant could say no i was targeting the home you know the kind of person from rage i just i was growing this marijuana for myself i had no intention of ever selling it at that point you wouldn't be robbing somebody who was engaged in commerce right or i was just robbing a house and i happened to stumble upon i mean they were thinking about those or to get very different things  robbing the house and stumbled upon is one thing but if you have somebody who's robbing marijuana is grown for home consumption remember in the defendant say the jurisdictional element is not satisfied because of that well i think home consumption raises different issues and i'll tell you why the h act governs robberies that have an effect on commerce over which the united states has jurisdiction there's some question whether just growing marijuana for your own use by itself is commerce or whether it's an activity that affects commerce that would be bring it in within let's say that it is a mess let's say that this court had a decision that homegrown marijuana has an effect on interstate commerce let's say that and then there's a trial one instruction can any evidence being a do well if the court had said that just a power part of the indictment i think if you're quite if you're asking whether the court has decided the growing marijuana is itself commerce over which the united states and its let's assume the court has decided well instructed on the law they determine any of the relevant facts that would be relevant to the elements of the offense but they have to do that within the framework of the law as instructed by the judge well in maine that may be familiar in the law but i'm not aware 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 way that the defend no evidence the defendant could introduce could rebut the government's showing in any case don't what's your best authority for that proposition i guess it depends on what you consider to be the element of the offense and how you define it as a legal matter what works what we're saying is the jury does have to find beyond a reasonable doubt that the jurisdictional element was met but just as if congress for instance as it is it could could directly prohibit if congress directly for him to did robberies of marijuana for marijuana dealers statute eighteen c ten thousand something it prohibits that and it says the jurisdictional element of this case is that the robbery the robbery has to target marijuana of a marijuana dealer the jury would be deciding precisely a affects commerce provision so you don't go through and have congress burden of it's you know they need to drug dealers and we have to do you know robberies at this business and that congress except for size the full scope of its power and so within the definition of robbery but here in order to the additional proof which is relevant to the jurisdictional element is that the robbery targeted the marijuana of marijuana dealers and by nate the nature of the targeting o southwest which was a gang it was engaged in particularly violent and dangerous robberies in roanoke the d e a tractor about thirty home invasions to this gang there were other prosecutions this particular defendant was a bit of a ta and he was prosecuted but the main participants in this endeavor which you know the idea he was contacted by local law enforcement was becoming a serious problem in roanoke case it suffices in your view if you say if you find there was a robbery of a drug dealer then the jurisdictional element is satisfied we think it's a little easier than that in this case if you find that there was a robbery target in the image or  marijuana of the drug dealer engage in that trait that you're a wanted and it's there's a very direct and i think undeniable effect on and i'm the only defense evidence that could be introduced in the case is that the he that the drugs were not involved the defense could show that drugs were not involved they could with that would target directly or other defenses out all they can do with reference to the jurisdictional element that i think that's right in this particular case because that's the only  what i do conceded what i said is you'd have to have a different theory and you said it was a very different thing it was a different thing and it would be a much harder thing it would be harder and it would be at least an awfully good argument by the defendant that if the person was not a dealer it's not if that in commerce and the regulator in the relevant way that's correct even though congress can regulate that transaction there's there would be a question i think that there are arguments to be made that would go beyond the arguments that we're making here and we're not pressing those today for various reasons i think as the court has recognized this is an area of some difficulty at times lopez recognizes that commerce power is necessarily want to degree and at the court decisions have not provided precise formulations in the nature of things and and so what we're the court i'm sorry what the courts take an incremental approach and we're doing something similar here i asked mr jones whether the hobbs act exercises the full measure in the search for a limiting principle which you seem to be addressing so congress could prohibit and has prohibited a person from possessing even a very small amount of marijuana right a single cigarette single marijuana that's correct so if one person steals a marijuana cigarette from another person robs that person one marijuana cigarette that's a violation of the hobbs act well there's a different argument there and let me tell you why the pure possession we're not talking about the actual trade in marijuana but just the personal possession that raises different questions that was addressed by race no there is an argument that could be made that that would fall within the the hog's act at the same time even if it falls within the commerce clause doesn't it  falls certainly the possession is something that congress can regulate as race teaches now whether the robbery of one possessing that's an additional an indication a link in to the co inquiry and what i can say is that the courts of appeals have recognized as this court has the cert in a search for the outer limits of the commerce clause the courts have pulled back and they've suggested that when you're driving just a mere individual who's not a business or engaged business in the in the context of the robbery that raises different questions and it's much more difficult to establish the necessary nexus we're not we're not actually taking that on in this case because we don't think we have to the farmer in wickard versus phil brown the week that the farmer was growing for personal consumption would that be a violation of the hobbs wickard is a little bit more complicated because it was personal consumption but in the context of a commercial enterprise right he was growing wheat for his animals and growing wheat he also grew wheat for sale so but the week that we're talking about is the week that he was going for his own use in his business i think there would be a stronger argument there than what you'd have if you just happen to stumble upon someone you rob them and picked up on you know some wheat or a marijuana cigarette out of their house again we don't deny that there are at the fringes  difficult questions of this court may have to address at some point but we're talking what is your understanding what the defendant wanted to enter what next the evidence the defendant want to introduce i think the defendant wanted to introduce evidence that not all marijuana in virginia is coming from out of state and that's not legally relevant to our were there any challenge to the status of were in the drug trade and addict least at a minimum who the defendants but we were in the drug trade and that's really what the relevant question is here because if for instance there's you know two people make an elaborate plan to rob a bank and then they end up showing up at a bill of business that's not a bank it's actually someone's house they can be charged with either a conspiracy war an attempt charge based on the facts as they are under as has or they understood i mean here i don't think there's much of an argument that the evidence was sufficient to show that these individuals had the understanding that the two victims here were drug dealers that were engaging in marijuana mr yeah i'd like to for you to explain to me with the difference in charges are between this robbery and a regular robbery let's say of a business because as you've noted there are many circu just rob a person individually that's not a hobbs act robbery but if you rob a business it is so how does a judge charge in any regular homme sack case and this kind of case well it will depend i think in part on the government's theory of the case the government makes charging decisions and presents its theory and the judge would have to charge with respect to enter charges so in the normal case and this is the this is kind of the  cases that all the courts of appeals have accepted or is kind of a depletion of assets very case now in those types of cases when you're involving the robbery of a business the government puts on evidence this could be any type of business pretty much the business in gauges and some kind of interstate commerce but that's kind of showing something some particular laws just like you're showing the marijuana deal in gauges how either by buying goods in commerce buying goods from out of state selling to out of state customers and buying equipment from out this is been established in all the courts of appeals for quite some time is that even if you're robbing not something that has not moved and conversely money right what you're doing is you're depleting the assets of an enterprise that is engaging in interstate commerce and or the commerce and some war has the potential to they don't is that different than his argument your adversaries are and i think that is his argument i think he accepts the in his brief the depletion of assets theory and says that the government has to show that this marijuana moved in interstate commerce or that the dealers sold people out of state which i will no parent that equally as a little difficult when we're talking about an attempt and we're talking about people who trade in marijuana they don't always  always forthcoming in their admissions to law enforcement but that's his theory our position is that is not necessary because we know already although that's one means of showing an effect on interstate commerce there are other means in the theory here is that the proving the same jurisdictional element that under our theory here the evidence was sufficient because there was sufficient evidence to show that he's the southwest including petitioners were targeting these two victims because they expected to gain marijuana from the individuals who they thought were drug dealers to controlled substances of controlled substance act if it has no limits on this element of interstate commerce then the answer to that is if a person comes up and