UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2

______________________________ 3 August Term, 2002 4 (Argued April 7, 2003 Decided July 3, 2003) 5 6 Docket No. 02-1376 7

______________________________ 8

United States of America, 9 Appellee, 10

v. 11 Christian Silverio, also known 12 as Grimy, 13 Defendant-Appellant. 14
Before WALKER, Chief Judge , OAKES and WINTER, Circuit 15 Judges
. 16 Defendant was convicted by the United States District Court 17 for the Eastern District of New York of attempted robbery under 18 the Hobbs Act. Defendant argues on appeal that there was 19 insufficient evidence to satisfy the interstate nexus requirement 20 for federal jurisdiction. 21 Affirmed. 22
Louis M. Freeman, New York, NY 23 (Freeman, Nooter & Ginsberg, of 24 counsel), for Defendant-Appellant
. 252 Cecil C. Scott, Assistant United 1 States Attorney, Brooklyn, NY 2 (Roslynn R. Mauskopf, United States 3 Attorney, and Peter A. Norling, 4 Assistant United States Attorney, 5 of counsel), for Appellee
. 6

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Per Curiam: 8 This case raises the question whether intent is required to 9 establish the interstate nexus necessary for a robbery conviction 10 under the Hobbs Act. The defendant, Christian Silverio, was 11 convicted of attempted robbery by the United States District 12 Court for the Eastern District of New York, Jack B. Weinstein, 13 Judge , on evidence relating to a robbery of a Manhattan doctor in 14 his home. On appeal, Silverio argues that there is insufficient 15 evidence to confer federal jurisdiction over his crime under the 16 Hobbs Act because he did not know that the robbery affected 17 interstate commerce. We find that the evidence sufficiently 18 establishes that the robbery was directed at money obtained in 19 interstate commerce and that Silverio’s individual intent is not 20 determinative. Accordingly, we affirm. 21 BACKGROUND 223 Viewed in the light most favorable to the government, see 1 United States v. Jamison, 299 F.3d 114, 115 (2d Cir. 2002), the 2 following evidence was presented at Silverio’s trial. 3 On the night of February 26, 1998, Silverio and two other 4 men forced entry into the home of Dr. Scott Kessler, an ear, nose 5 and throat doctor with a celebrity clientele. The men tied and 6 blindfolded Dr. Kessler and his family, threatened them with 7 weapons, and stayed for several hours before leaving with some 8 money and jewelry. 9 The two assailants with Silverio that night, Angel Maldonado 10 and Julio Silverio, who is the defendant’s brother, had learned 11 about Dr. Kessler from Jose Negron, the doorman at Kessler’s 12 residence. Negron had a history of committing violent robberies 13 with Maldonado and Julio Silverio, and, based on Negron’s belief 14 that Dr. Kessler kept a substantial amount of money in his 15 apartment from his medical practice across the street, Negron 16 proposed robbing Dr. Kessler at home. Because Negron could not 17 participate in the actual robbery for fear of being identified by 18 the Kesslers, Julio Silverio recruited his brother, Christian, as 19 the third assailant a few days before the robbery. 20 On February 26, the defendant, his brother, Maldonado, and 21 Negron went to the Kesslers’ apartment building, armed with two 221The Kesslers’ daughter was allowed to continue sleeping in 1 her room, undisturbed. 2

2This evidence came from Maldonado’s testimony at the 1 defendant’s trial. Maldonado testified pursuant to a cooperation 2 agreement with the government. 3 4

guns. After gaining entry to the building through Negron, who 1 stayed downstairs on his doorman shift, the three assailants made 2 their way to the Kesslers’ door, where they announced a flower 3 delivery. When Dr. Kessler opened the door, the three men rushed 4 into the apartment and, after a struggle, brought Dr. Kessler, 5 his wife, and his son to a couch, where they were tied and 6 blindfolded. 1 7 Maldonado then demanded "the money" that he claimed he knew 8 was in the house. 2When Dr. Kessler’s son offered $300 from his 9 piggy bank, Maldonado responded that he wanted the hundreds of 10 thousands of dollars that were supposed to be there. He also 11 stated that they knew Kessler was "a big shot doctor across the 12 street" who traveled in limousines and treated celebrity 13 patients. When the Kesslers denied having such amounts of cash 14 in their home, the men refused to believe them and continued to 15 demand that the money be produced. They also demanded Dr. 16 Kessler’s financial records. Dr. Kessler explained that his 17 business proceeds were in a business account, which he could not 18 deplete without consent from his partner, who was out of town. 195

When the men sought to go to his office across the street to get 1 money, he told them that there was no money there other than 2 petty cash. As time passed, the assailants gradually lowered the 3 amount of money demanded. 4 Negron, with whom Maldonado kept in touch by cell phone, 5 insisted that the money was in the apartment and directed the 6 assailants to kidnap the Kessler children if it was not turned 7 over. After some further threats and searches of the apartment, 8 the assailants took the Kesslers’ ATM cards and Julio Silverio 9 left to withdraw as much cash as he could. Finally, as the end 10 of Negron’s shift approached, the defendant and Maldonado left 11 the apartment, taking the valuables they had found and the $300 12 from the son’s piggy bank. 13 The defendant was arrested in April 2000 and charged with 14 conspiring to obstruct commerce by robbery and with attempt to do 15 so in violation of 18 U.S.C. § 1951. He was also charged with 16 aiding and abetting the use and carrying of a firearm during and 17 in relation to a crime of violence in violation of 18 U.S.C. 18 § 924(c). At trial, the government did not produce evidence that 19 Silverio knew about the Kesslers before the night of the robbery. 20 Instead, Maldonado testified that only he and Julio Silverio 21 participated in the planning of the robbery with Negron. The 226

trial court consequently dismissed the conspiracy charge, and 1 Silverio was convicted by a jury of the remaining two charges. 2 DISCUSSION 3 On appeal, Silverio argues that the evidence at his trial 4 did not establish that he was aware that the object of the 5 Kessler robbery was the proceeds of Dr. Kessler’s business and 6 that, therefore, the interstate nexus required for jurisdiction 7 under the Hobbs Acts was not satisfied. Because Silverio claims 8 that there was insufficient evidence to support his conviction, 9 he faces a substantial burden on appeal. See United States v. 10 Fabian, 312 F.3d 550, 554 (2d Cir. 2002). Although our review is 11 de novo , see United States v. Henry, 325 F.3d 93, 103 (2d Cir. 12 2003), we must view the contested evidence “‘in the light most 13 favorable to the government and construe all possible inferences 14 in its favor.’” Fabian, 312 F.3d at 554 (quoting United States 15 v. Badalamenti , 794 F.2d 821, 828 (2d Cir. 1986)). 16 The Hobbs Act allows for federal prosecution of the 17 typically state law crime of robbery when such a robbery 18 interferes with interstate commerce. Specifically, the Hobbs Act 19 criminalizes conduct which "in any way or degree obstructs, 20 delays, or affects commerce . . . by robbery or extortion or 21 attempts or conspires so to do, or commits or threatens physical 227

violence to any person or property in furtherance of a plan or 1 purpose to do anything in violation of this section." 18 U.S.C. 2 § 1951(a) (2002). We have consistently held that only a de 3 minimusshowing is necessary to establish the interstate nexus 4 required for Hobbs Act jurisdiction
. See Fabian, 312 F.3d at 554 5 (citing cases). Indeed, "it is the law in our circuit that ‘[i]f 6 the defendants’ conduct produces any interference with or effect 7 upon interstate commerce , whether slight, subtle or even 8 potential, it is sufficient to uphold a prosecution under the 9 Hobbs Act.’" United States v. Perrotta, 313 F.3d 33, 36 (2d Cir. 10 2002) (quoting Jund v. Town of Hempstead, 941 F.2d 1271, 1285 (2d 11 Cir. 1991)). 12 In our recent decision in Perrotta, where we held that a 13 robbery victim’s employment at a company engaged in interstate 14 commerce was not adequate, standing alone, to satisfy the 15 interstate nexus requirement, we envisioned several "instances 16 where a robbery or extortion of [such] an employee . . . would 17 likely support Hobbs Act jurisdiction." 313 F.3d at 37. Relying 18 on precedent set forth in numerous cases, we stated that: 19 The jurisdictional nexus could be satisfied by showing 20 that the victim directly participated in interstate 21 commerce; that the victim was targeted because of her 22 status as an employee at a company participating in 23 interstate commerce; that the harm or potential harm to 24 the individual would deplete the assets of a company 258 engaged in interstate commerce; that the crime targeted 1 the assets of a business rather than an individual; or 2 that the individual was extorted of a sum so large, or 3 targeted in connection with so many individuals, that 4 the amount at stake cumulatively had some effect on 5 interstate commerce[.] 6 Id.at 37-38 (internal citations omitted). 7 Applying our reasoning in Perrottato Silverio’s case, we 8 find that the evidence of the Kessler robbery, viewed in the 9 light most favorable to the government, was sufficient to 10 demonstrate an interstate nexus because Dr. Kessler was a direct 11 participant in interstate commerce through his business of 12 treating a worldwide celebrity clientele, because the robbery 13 would have depleted the assets of Dr. Kessler’s business, and 14 because the robbery targeted the assets of his business rather 15 than his personal property. 16 Silverio argues, however, that he did not know that the 17 object of the robbery was Dr. Kessler’s business proceeds. 18 Silverio relies on our decision in Fabian, in which we found that 19 Fabian’s belief that he was robbing first a loan shark and then, 20 in a second incident, the proceeds of an interstate drug deal, 21 was sufficient to establish Hobbs Act jurisdiction even though 22 Fabian’s belief about both robberies turned out to be mistaken. 23 See312 F.3d at 555-56. We held there that "what is relevant is 24 what Fabian believed," and, because he believed that his 259

robberies targeted business proceeds that fell within the scope 1 of the Hobbs Act, the fact that they did not actually do so was 2 not a bar to liability. Id. at 555. Silverio claims that, by 3 this language, Fabiancreated an intent element for the 4 interstate nexus inquiry, requiring the government to prove that 5 Silverio intended to rob Dr. Kessler of the proceeds of his 6 medical practice. 7 We reject Silverio’s argument on the basis that his 8 interpretation of Fabianis incorrect. We did not conclude in 9 that case that intent or knowledge is an element necessary to 10 establish an effect on interstate commerce; rather, we found that 11 when circumstances make such an effect an impossibility, a 12 robber’s belief about the object of the robbery is sufficient to 13 establish the interstate nexus. See312 F.3d at 555-56. In 14 other words, in the absence of an actual effect on interstate 15 commerce, a defendant’s belief about the nature of his crime may 16 be determinative. But when, as here, ample effects on interstate 17 commerce are demonstrated, the state of mind of the defendant is 18 not relevant. 19 We know of no court that has an intent requirement for Hobbs 20 Act prosecutions such as that suggested by Silverio, and we 21 refuse to create one in this circuit. Instead, we reiterate 2210

today what we have held many times over in our prior cases: that 1 in order to establish jurisdiction under the Hobbs Act, the 2 government must demonstrate the effect of a defendant’s conduct 3 on interstate commerce. See , e.g. , Perrotta, 313 F.3d at 36; 4 Jamison, 299 F.3d at 118. When such a showing has been made, as 5 it was in Silverio’s case, the jurisdictional element of a Hobbs 6 Act prosecution is satisfied. 7 We have considered Silverio’s remaining arguments and find 8 them to be without merit. We therefore affirm Silverio’s 9 conviction on both counts. 10 CONCLUSION 11 In light of the foregoing, we affirm the judgment of the 12 district court. 13