1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 ______________________________

4 August Term, 2002

5 (Argued April 7, 2003 Decided July 3, 2003) 

6 

7 Docket No. 02-1376

8 ______________________________

9 United States of America,

10 Appellee,

11 v.

12 Christian Silverio, also known

13 as Grimy,

14 Defendant-Appellant.

15 Before WALKER, Chief Judge, OAKES and WINTER, Circuit

16 Judges.

17 Defendant was convicted by the United States District Court

18 for the Eastern District of New York of attempted robbery under

19 the Hobbs Act. Defendant argues on appeal that there was

20 insufficient evidence to satisfy the interstate nexus requirement

21 for federal jurisdiction.

22 Affirmed.

23 Louis M. Freeman, New York, NY

24 (Freeman, Nooter & Ginsberg, of

25 counsel), for Defendant-Appellant.
2

1 Cecil C. Scott, Assistant United

2 States Attorney, Brooklyn, NY

3 (Roslynn R. Mauskopf, United States

4 Attorney, and Peter A. Norling,

5 Assistant United States Attorney,

6 of counsel), for Appellee.

7 ________________________________

8 Per Curiam:

9 This case raises the question whether intent is required to

10 establish the interstate nexus necessary for a robbery conviction

11 under the Hobbs Act. The defendant, Christian Silverio, was

12 convicted of attempted robbery by the United States District

13 Court for the Eastern District of New York, Jack B. Weinstein,

14 Judge, on evidence relating to a robbery of a Manhattan doctor in

15 his home. On appeal, Silverio argues that there is insufficient

16 evidence to confer federal jurisdiction over his crime under the

17 Hobbs Act because he did not know that the robbery affected

18 interstate commerce. We find that the evidence sufficiently

19 establishes that the robbery was directed at money obtained in

20 interstate commerce and that Silverio’s individual intent is not

21 determinative. Accordingly, we affirm.

22 BACKGROUND
3

1 Viewed in the light most favorable to the government, see

2 United States v. Jamison, 299 F.3d 114, 115 (2d Cir. 2002), the

3 following evidence was presented at Silverio’s trial.

4 On the night of February 26, 1998, Silverio and two other

5 men forced entry into the home of Dr. Scott Kessler, an ear, nose

6 and throat doctor with a celebrity clientele. The men tied and

7 blindfolded Dr. Kessler and his family, threatened them with

8 weapons, and stayed for several hours before leaving with some

9 money and jewelry.

10 The two assailants with Silverio that night, Angel Maldonado

11 and Julio Silverio, who is the defendant’s brother, had learned

12 about Dr. Kessler from Jose Negron, the doorman at Kessler’s

13 residence. Negron had a history of committing violent robberies

14 with Maldonado and Julio Silverio, and, based on Negron’s belief

15 that Dr. Kessler kept a substantial amount of money in his

16 apartment from his medical practice across the street, Negron

17 proposed robbing Dr. Kessler at home. Because Negron could not

18 participate in the actual robbery for fear of being identified by

19 the Kesslers, Julio Silverio recruited his brother, Christian, as

20 the third assailant a few days before the robbery.

21 On February 26, the defendant, his brother, Maldonado, and

22 Negron went to the Kesslers’ apartment building, armed with two
1 1 The Kesslers’ daughter was allowed to continue sleeping in

2 her room, undisturbed.

2 1 This evidence came from Maldonado’s testimony at the

2 defendant’s trial. Maldonado testified pursuant to a cooperation

3 agreement with the government.

4

1 guns. After gaining entry to the building through Negron, who

2 stayed downstairs on his doorman shift, the three assailants made

3 their way to the Kesslers’ door, where they announced a flower

4 delivery. When Dr. Kessler opened the door, the three men rushed

5 into the apartment and, after a struggle, brought Dr. Kessler,

6 his wife, and his son to a couch, where they were tied and

blindfolded.1 7

8 Maldonado then demanded "the money" that he claimed he knew

was in the house.2 9 When Dr. Kessler’s son offered $300 from his

10 piggy bank, Maldonado responded that he wanted the hundreds of

11 thousands of dollars that were supposed to be there. He also

12 stated that they knew Kessler was "a big shot doctor across the

13 street" who traveled in limousines and treated celebrity

14 patients. When the Kesslers denied having such amounts of cash

15 in their home, the men refused to believe them and continued to

16 demand that the money be produced. They also demanded Dr.

17 Kessler’s financial records. Dr. Kessler explained that his

18 business proceeds were in a business account, which he could not

19 deplete without consent from his partner, who was out of town. 
5

1 When the men sought to go to his office across the street to get

2 money, he told them that there was no money there other than

3 petty cash. As time passed, the assailants gradually lowered the

4 amount of money demanded.

5 Negron, with whom Maldonado kept in touch by cell phone,

6 insisted that the money was in the apartment and directed the

7 assailants to kidnap the Kessler children if it was not turned

8 over. After some further threats and searches of the apartment,

9 the assailants took the Kesslers’ ATM cards and Julio Silverio

10 left to withdraw as much cash as he could. Finally, as the end

11 of Negron’s shift approached, the defendant and Maldonado left

12 the apartment, taking the valuables they had found and the $300

13 from the son’s piggy bank.

14 The defendant was arrested in April 2000 and charged with

15 conspiring to obstruct commerce by robbery and with attempt to do

16 so in violation of 18 U.S.C. § 1951. He was also charged with

17 aiding and abetting the use and carrying of a firearm during and 

18 in relation to a crime of violence in violation of 18 U.S.C. 

19 § 924(c). At trial, the government did not produce evidence that

20 Silverio knew about the Kesslers before the night of the robbery. 

21 Instead, Maldonado testified that only he and Julio Silverio

22 participated in the planning of the robbery with Negron. The
6

1 trial court consequently dismissed the conspiracy charge, and

2 Silverio was convicted by a jury of the remaining two charges.

3 DISCUSSION

4 On appeal, Silverio argues that the evidence at his trial

5 did not establish that he was aware that the object of the

6 Kessler robbery was the proceeds of Dr. Kessler’s business and

7 that, therefore, the interstate nexus required for jurisdiction

8 under the Hobbs Acts was not satisfied. Because Silverio claims

9 that there was insufficient evidence to support his conviction,

10 he faces a substantial burden on appeal. See United States v.

11 Fabian, 312 F.3d 550, 554 (2d Cir. 2002). Although our review is

12 de novo, see United States v. Henry, 325 F.3d 93, 103 (2d Cir.

13 2003), we must view the contested evidence “‘in the light most

14 favorable to the government and construe all possible inferences

15 in its favor.’” Fabian, 312 F.3d at 554 (quoting United States

16 v. Badalamenti, 794 F.2d 821, 828 (2d Cir. 1986)).

17 The Hobbs Act allows for federal prosecution of the

18 typically state law crime of robbery when such a robbery

19 interferes with interstate commerce. Specifically, the Hobbs Act

20 criminalizes conduct which "in any way or degree obstructs,

21 delays, or affects commerce . . . by robbery or extortion or

22 attempts or conspires so to do, or commits or threatens physical
7

1 violence to any person or property in furtherance of a plan or

2 purpose to do anything in violation of this section." 18 U.S.C.

3 § 1951(a) (2002). We have consistently held that only a de

4 minimus showing is necessary to establish the interstate nexus

5 required for Hobbs Act jurisdiction. See Fabian, 312 F.3d at 554

6 (citing cases). Indeed, "it is the law in our circuit that ‘[i]f

7 the defendants’ conduct produces any interference with or effect

8 upon interstate commerce, whether slight, subtle or even

9 potential, it is sufficient to uphold a prosecution under the

10 Hobbs Act.’" United States v. Perrotta, 313 F.3d 33, 36 (2d Cir.

11 2002) (quoting Jund v. Town of Hempstead, 941 F.2d 1271, 1285 (2d

12 Cir. 1991)).

13 In our recent decision in Perrotta, where we held that a

14 robbery victim’s employment at a company engaged in interstate

15 commerce was not adequate, standing alone, to satisfy the

16 interstate nexus requirement, we envisioned several "instances

17 where a robbery or extortion of [such] an employee . . . would

18 likely support Hobbs Act jurisdiction." 313 F.3d at 37. Relying

19 on precedent set forth in numerous cases, we stated that:

20 The jurisdictional nexus could be satisfied by showing

21 that the victim directly participated in interstate

22 commerce; that the victim was targeted because of her

23 status as an employee at a company participating in

24 interstate commerce; that the harm or potential harm to

25 the individual would deplete the assets of a company
8

1 engaged in interstate commerce; that the crime targeted

2 the assets of a business rather than an individual; or

3 that the individual was extorted of a sum so large, or

4 targeted in connection with so many individuals, that

5 the amount at stake cumulatively had some effect on

6 interstate commerce[.]

7 Id. at 37-38 (internal citations omitted). 

8 Applying our reasoning in Perrotta to Silverio’s case, we

9 find that the evidence of the Kessler robbery, viewed in the

10 light most favorable to the government, was sufficient to

11 demonstrate an interstate nexus because Dr. Kessler was a direct

12 participant in interstate commerce through his business of

13 treating a worldwide celebrity clientele, because the robbery

14 would have depleted the assets of Dr. Kessler’s business, and

15 because the robbery targeted the assets of his business rather

16 than his personal property. 

17 Silverio argues, however, that he did not know that the

18 object of the robbery was Dr. Kessler’s business proceeds. 

19 Silverio relies on our decision in Fabian, in which we found that 

20 Fabian’s belief that he was robbing first a loan shark and then,

21 in a second incident, the proceeds of an interstate drug deal,

22 was sufficient to establish Hobbs Act jurisdiction even though

23 Fabian’s belief about both robberies turned out to be mistaken. 

24 See 312 F.3d at 555-56. We held there that "what is relevant is

25 what Fabian believed," and, because he believed that his
9

1 robberies targeted business proceeds that fell within the scope

2 of the Hobbs Act, the fact that they did not actually do so was

3 not a bar to liability. Id. at 555. Silverio claims that, by

4 this language, Fabian created an intent element for the

5 interstate nexus inquiry, requiring the government to prove that

6 Silverio intended to rob Dr. Kessler of the proceeds of his

7 medical practice.

8 We reject Silverio’s argument on the basis that his

9 interpretation of Fabian is incorrect. We did not conclude in

10 that case that intent or knowledge is an element necessary to

11 establish an effect on interstate commerce; rather, we found that

12 when circumstances make such an effect an impossibility, a

13 robber’s belief about the object of the robbery is sufficient to

14 establish the interstate nexus. See 312 F.3d at 555-56. In

15 other words, in the absence of an actual effect on interstate

16 commerce, a defendant’s belief about the nature of his crime may

17 be determinative. But when, as here, ample effects on interstate

18 commerce are demonstrated, the state of mind of the defendant is

19 not relevant.

20 We know of no court that has an intent requirement for Hobbs

21 Act prosecutions such as that suggested by Silverio, and we

22 refuse to create one in this circuit. Instead, we reiterate
10

1 today what we have held many times over in our prior cases: that

2 in order to establish jurisdiction under the Hobbs Act, the

3 government must demonstrate the effect of a defendant’s conduct

4 on interstate commerce. See, e.g., Perrotta, 313 F.3d at 36;

5 Jamison, 299 F.3d at 118. When such a showing has been made, as

6 it was in Silverio’s case, the jurisdictional element of a Hobbs

7 Act prosecution is satisfied.

8 We have considered Silverio’s remaining arguments and find

9 them to be without merit. We therefore affirm Silverio’s

10 conviction on both counts.

11 CONCLUSION

12 In light of the foregoing, we affirm the judgment of the

13 district court.