2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-30-2012

USA v. Clarence Powell

Precedential or Non-Precedential: Precedential

Docket No. 11-2432

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2432

___________

UNITED STATES OF AMERICA

v.

CLARENCE POWELL,

 Appellant

_______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Criminal No. 09-cr-00574-003

(Honorable J. Curtis Joyner)

______________

Argued June 4, 2012

Before: SCIRICA, GREENAWAY, JR.

and NYGAARD, Circuit Judges.

(Filed: August 30, 2012)
2

THEODORE C. FORRENCE, JR., ESQUIRE (ARGUED)

Two Penn Center Plaza, Suite 200

1500 John F. Kennedy Boulevard

Philadelphia, Pennsylvania 19102

KENNETH C. EDELIN, JR., ESQUIRE

Two Penn Center Plaza, Suite 1410

1500 John F. Kennedy Boulevard

Philadelphia, Pennsylvania 19102

Attorneys for Appellant

ROBERT A. ZAUZMER, ESQUIRE (ARGUED)

ARLENE D. FISK, ESQUIRE

THOMAS M. ZALESKI, ESQUIRE

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, Pennsylvania 19106

Attorneys for Appellee

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

Clarence Powell was convicted under the Hobbs Act, 

18 U.S.C. § 1951, for two robberies of business owners in 

their homes. He challenges the sufficiency of the evidence to 

establish that the robberies affected interstate commerce and 
3

the jury charge. At issue is whether a different standard 

governs the Act’s jurisdictional requirements when the 

robbery of business proceeds occurs in the business owner’s

home rather than on business premises.

I.

In the summer of 2008, according to the testimony of 

Powell’s cousin and codefendant Michael Lassiter, he and 

Powell engaged in a series of home robberies of college 

students and drug dealers in North Philadelphia. Powell and 

Lassiter decided their crimes were attracting too much 

attention from law enforcement. They determined instead to 

rob business owners by following them from their retail stores 

to their homes, reasoning that there would be less security, 

fewer witnesses, and more money from the business in 

owners’ houses than in their stores. They specifically 

targeted immigrant business owners in the belief that those

they termed “Chinese people” would keep business proceeds 

at home because they did not use banks.

In November 2008, Powell, Lassiter, and codefendant 

Troy Hill cased Star Wigs, a store on 52nd Street in West 

Philadelphia, and decided to rob the owner when they saw the 

store’s brisk business. Star Wigs was owned by Y.B., a 

female immigrant from Korea who would take home cash 

from the business each evening to later deposit in the bank. 

The store sold merchandise, principally wigs and hair care 

products, from multiple out-of-state suppliers, including 

suppliers in New York, New Jersey, and Illinois. On 

December 1, Powell, Lassiter, and Hill followed Y.B. as she 
4

drove from Star Wigs to her home in Broomall, Pennsylvania. 

The three men, wearing bandanas over their faces and 

brandishing two handguns, invaded the home, beat and tied 

up Y.B. and her husband, and demanded money. The robbers 

seized $250-$300 in cash from the store’s daily sales from 

Y.B.’s sock, and approximately $2000 in cash from store 

sales in a jar on the refrigerator, which Y.B. intended to 

deposit in the bank to cover backdated checks for store 

merchandise.1

Also in November 2008, Powell, Lassiter, and Hill 

cased Dollar Plus Discount, a store located across 52nd Street

from Star Wigs, similarly observing a large volume of 

business. Dollar Plus was owned by B.S. and his wife, 

immigrants from Bangladesh, and purchased merchandise 

from out-of-state suppliers, including electronics and other 

items from Baltimore, Maryland. B.S. transported cash and 

credit card receipts from the store to his home each night in a 

clear plastic box, where he kept them overnight. In late 

November, Powell, Lassiter, and Hill followed B.S. and his 

wife from Dollar Plus to their home in Upper Darby, 

Pennsylvania. Several weeks later, on December 18, the 

three men, along with Alexis Byrd-Arroyo, Lassiter’s 

 They also took credit cards, a handgun, 

jewelry, handbags, family heirlooms, and $1200 in cash that 

belonged to Y.B.’s husband.

 1 The amount of cash in the jar is disputed. Y.B. testified that 

it was approximately $2,000 but submitted an insurance claim 

for $1,060. When questioned about the discrepancy, Y.B. 

explained that she did not know at the time she submitted the 

claim how much money was in the jar.
5

girlfriend, returned to B.S.’s house armed with two handguns 

and a sawed-off shotgun. Powell, Lassiter, and Hill hid at 

the back of the house and assaulted two of B.S.’s adult 

daughters when they came home, pushing them inside at 

gunpoint and demanding their parents’ money.

2

 One of the 

daughters led Lassiter upstairs to the plastic box with receipts 

and petty cash from the business.3

B.S.’s daughters then called the police, who put out a 

radio alert for a robbery in progress. Within thirty seconds of 

the dispatch, Upper Darby police on patrol a few blocks from 

B.S.’s house spotted a Ford Crown Victoria driving rapidly 

toward Philadelphia. They tailed the car into the city and 

recorded its license plate, but lost the car in traffic. Upper 

Darby police relayed this information to the Philadelphia 

police, who later located and set up surveillance on the parked 

vehicle. Philadelphia police arrested Byrd-Arroyo when she 

returned to the car, and Upper Darby police obtained a search 

warrant for the vehicle. Inside they discovered a handgun, a 

sawed-off shotgun, a plastic container with Dollar Plus 

receipts and petty cash, and other valuables. The victims of 

the December 18 robbery identified the items recovered as 

 The robbers took this box

along with personal electronics and additional cash, pushed 

the women into a room, threatening to shoot them if they 

came out, and left.

 2 A third adult daughter was already present in the home.

3 At the time of the robbery, neither the robbers nor B.S. 

knew how much money the box contained. The police 

subsequently determined the box contained $140 in small 

bills.
6

proceeds of the robbery. Based on information from ByrdArroyo, police subsequently arrested Powell, Lassiter, and 

Hill.

In March 2010, a grand jury in the Eastern District of 

Pennsylvania returned a five-count indictment against 

Clarence Powell: one count of conspiracy to interfere with 

interstate commerce by robbery in violation of 18 U.S.C. § 

1951(a), two counts of interference with interstate commerce 

by robbery in violation of 18 U.S.C. § 1951(a), and two 

counts of using a firearm during a crime of violence in 

violation of 18 U.S.C. § 924(c). Powell proceeded to trial. 

At the close of the evidence, the District Court held a 

charging conference with trial counsel. Powell moved to 

dismiss the indictment under Fed. R. Crim. P. 29 for 

insufficient evidence to establish the effect on interstate 

commerce. The District Court denied the motion. Over the 

defendant’s objection, the court charged the jury with a 

modified version of the Third Circuit model jury instruction

on the element of “affecting interstate commerce” required 

for a Hobbs Act conviction. The jury convicted Powell on all 

five counts. The District Court sentenced Powell to 697 

months’ imprisonment,4

 4 The District Court sentenced Powell to ninety-seven months 

of imprisonment for the Hobbs Act convictions, Counts One, 

Two, and Four of Powell’s indictment. This sentence was the 

bottom of the recommended range of the Sentencing 

Guidelines. The District Court sentenced Powell to 600 

months’ imprisonment for the convictions under 18 U.S.C. § 

924(c), Counts Three and Five. Because Powell had a 

with five years’ supervised release, 
7

restitution of $20,762.55, and a special assessment of $500. 

Powell timely appealed.5

II.

On appeal, Powell challenges the sufficiency of the 

evidence to satisfy the effect on interstate commerce element 

required for conviction under the Hobbs Act, as well as the 

jury instructions on this element. These challenges raise a 

similar issue: namely, whether the robbery of an individual in 

her home requires proof of a more substantial connection to 

interstate commerce than a robbery committed at a place of

business.

A.

The Hobbs Act provides “[w]hoever in any way or 

degree obstructs, delays, or affects commerce or the 

movement of any article or commodity in commerce, by 

robbery or extortion or attempts or conspires so to do . . . 

 

previous conviction under 18 U.S.C. § 924(c), the mandatory 

minimum sentence for each count was 300 months. 18 

U.S.C. § 924(c)(1)(C)(i). Moreover, the statute specifies that 

all terms of imprisonment under § 924 must run 

consecutively, including the term of imprisonment imposed 

for the underlying crime of violence. Id. § 924(c)(1)(D)(ii). 

Powell does not challenge the District Court’s sentence in this 

appeal.

5 The District Court exercised jurisdiction under 18 U.S.C. § 

3231. We exercise jurisdiction under 28 U.S.C. § 1291. 
8

shall be fined under this title or imprisoned not more than 

twenty years, or both.” 18 U.S.C. § 1951(a). The statute 

defines commerce as “all commerce between any point in a 

State, Territory, Possession, or the District of Columbia and 

any point outside thereof; all commerce between points 

within the same State through any place outside such State; 

and all other commerce over which the United States has 

jurisdiction.” Id. § 1951(b)(3). We have held that a 

conviction under the Hobbs Act requires proof beyond a 

reasonable doubt that (1) the defendant knowingly or 

willfully committed, or attempted or conspired to commit, 

robbery or extortion, and (2) the defendant’s conduct affected 

interstate commerce. United States v. Walker, 657 F.3d 160, 

178-79 (3d Cir. 2011); United States v. Driggs, 823 F.2d 52, 

54 (3d Cir. 1987). Powell challenges the sufficiency of the 

evidence with respect to the effect on interstate commerce 

element.

6

The Hobbs Act was passed as an amendment to the 

Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979. The 

original Act was targeted at extortion by organized crime

against store owners and truck drivers. S. Rep. No. 75-1189, 

 

 6 We apply a “particularly deferential standard of review” to 

challenges to the sufficiency of the evidence supporting 

conviction. United States v. Dent, 149 F.3d 180, 187 (3d Cir. 

1998). We view all evidence in the light most favorable to 

the government, and sustain conviction as long as “any 

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.” Id. (quoting United 

States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)).
9

at 23-24 (1937). But in a later prosecution under the Act 

against a labor union and twenty-six of its members who 

coerced tribute from out-of-state truck drivers entering New 

York City, the Supreme Court held that the Act did not 

encompass payments for work, even if obtained by threats or 

violence, and reversed the defendants’ convictions. United 

States v. Local 807 of Int’l Bhd. of Teamsters, 315 U.S. 521 

(1942). Congress then amended the law to correct the 

“technical defect in the antiracketeering statute,” 91 Cong. 

Rec. 11,913 (1945) (statement of Rep. Whittington), and 

“protect interstate commerce and free the highways and 

streets of this country of robbers,” id. at 11,912 (statement of 

Rep. Hobbs); Hobbs Act, ch. 537, 60 Stat. 420 (1946), 

codified at 18 U.S.C. § 1951.

Although the Hobbs Act was framed in the context of 

racketeering, the Supreme Court has concluded that Congress 

intended the law to sweep broadly and “prevent anyone from 

obstructing, delaying, or affecting commerce, or the

movement of any article or commodity in commerce by 

robbery or extortion as defined in the bill.” United States v. 

Culbert, 435 U.S. 371, 377 (1978) (emphasis removed) 

(quoting H.R. Rep. No. 79-238, at 9 (1945)). Based on this 

legislative history, the Court has declined to read a 

racketeering requirement into the statute, holding that the 

statute’s words “do not lend themselves to restrictive 

interpretation” and instead “manifest . . . a purpose to use all 

the constitutional power Congress has to punish interference 

with interstate commerce by extortion, robbery, or physical 

violence.” Id. at 373 (alteration in original) (quoting Stirone 

v. United States, 361 U.S. 212, 215 (1960)).
10

Consistent with the Court’s interpretation of the Hobbs 

Act’s “broad language,” Stirone, 361 U.S. at 215, we have 

stressed that “proof of a de minimis effect on interstate 

commerce is all that is required” for conviction under the 

Hobbs Act. Walker, 657 F.3d at 180 (quoting United States v. 

Urban, 404 F.3d 754, 766 (3d Cir. 2005)) (internal quotation 

marks omitted). Moreover, the effect may be potential, not 

actual. United States v. Shavers, No. 10-2790, slip op. at 11

(3d Cir. Aug. 27, 2012); United States v. Haywood, 363 F.3d 

200, 209-10 (3d Cir. 2004); see also Urban, 404 F.3d at 766-

67. We have noted this standard is in accord with the 

overwhelming weight of authority of our sister circuits. 

Urban, 404 F.3d at 765 n.3. We have also rejected challenges 

to this standard under the commerce clause jurisprudence 

outlined in United States v. Lopez, 514 U.S. 549 (1995), and 

United States v. Morrison, 529 U.S. 598 (2000), holding that, 

because the Hobbs Act contains a jurisdictional element and 

criminalizes the “fundamentally economic” crimes of robbery 

and extortion, violations of the Act have a substantial effect 

on interstate commerce in the aggregate, and the government 

need not prove a substantial effect in each individual case. 

Shavers, No. 10-2790, slip op. at 11-12, Walker, 657 F.3d at 

179-80; Urban, 404 F.3d at 766; United States v. Clausen, 

328 F.3d 708, 710-11 (3d Cir. 2003).

 Powell challenges the application of the de minimis

standard in this case. He argues it properly applies only to

robberies at business establishments, and that a higher 

jurisdictional burden applies when, as here, the robbery in 

question is of an individual in his or her home. For support, 

he cites cases from our sister circuits finding that the robbery 
11

of a private individual’s property away from a place of 

business did not satisfy the Hobbs Act’s jurisdictional 

element. See, e.g., United States v. Perrotta, 313 F.3d 33, 36 

(2d Cir. 2002) (extortion of personal funds from a private 

individual); United States v. Quigley, 53 F.3d 909, 910 (8th 

Cir. 1995) (robbery of personal funds of two individuals en 

route to a liquor store); United States v. Collins, 40 F.3d 95, 

100 (5th Cir. 1994) (home robbery of personal property and 

car). Most notable among this line of cases is United States v. 

Wang, 222 F.3d 234 (6th Cir. 2000), which reversed a 

conviction under the Hobbs Act for the defendant’s robbery 

of a restaurant owner in her home that secured $4200 in cash, 

including $1200 from the restaurant’s cash register, $900 of 

which was to be deposited in the restaurant’s bank account 

the next day. The court held the standard for the effect on 

interstate commerce of the robbery of an individual “is of a 

different order than in cases in which the victim is a business 

entity,” and ruled that, when the prosecution “seeks to satisfy 

the Act’s jurisdictional nexus by showing a connection 

between an individual victim and a business engaged in 

interstate commerce, that connection must be a substantial 

one—not one that is fortuitous or speculative.” Wang, 222

F.3d at 238-40. The robbery in question did not satisfy this 

standard because the robbery was of a private individual in a 

private home, and there was no evidence of a substantial 

connection between the robbery and the restaurant’s business. 

Id. at 240.

We have addressed this line of cases before. In 

Walker, we noted that, “[e]ven if these decisions are correct,” 

a question we declined to decide, they were distinguishable 
12

from the Walker facts, which involved the robbery of a drug 

dealer. 657 F.3d at 181. We interpreted the Wang line of

cases to stand for the proposition that 

the mere facts that (1) an individual was robbed 

of personal property, (2) the individual happens 

to work for a company engaged in interstate 

commerce, and (3) there was some incidental 

effect on that person’s job performance are 

insufficient, standing alone, to establish Hobbs 

Act jurisdiction, because the connection 

between the robbery and interstate commerce is 

too attenuated.

Id.

Here, as in Walker, the link between the robbery and 

interstate commerce is more direct than in the cases Powell 

cites. The testimony at trial, viewed in the light most 

favorable to the government, established that Powell and his 

accomplices deliberately selected store owners as their 

victims, seeking to steal the stores’ earnings and assets. The 

robbers decided not to commit the robberies at the stores only 

because they believed it was too risky. Although we have yet 

to decide the issue,7

 7 In Walker, we suggested in a footnote that because the 

defendants were “motivated by [the victim’s] connection to 

interstate commerce,” the Hobbs Act’s jurisdictional nexus 

was satisfied. 657 F.3d at 182 n.16.

our sister circuits have held that such 

targeting satisfies the Hobbs Act’s jurisdictional nexus. See, 
13

e.g., United States v. Le, 256 F.3d 1229, 1237 n.8 (11th Cir.

2001) (“Our conclusion that Le’s actions implicated interstate 

commerce to a degree sufficient to create jurisdiction under 

the Hobbs Act is based on the fact that Le specifically 

targeted business assets that were temporarily kept at a 

private residence which, if stolen, had the potential to delay 

or obstruct the purchase of products from another state.”);

United States v. Diaz, 248 F.3d 1065, 1088-89 (11th Cir. 

2001) (“What sets this case apart is the fact that the role of the 

Martins with regard to their business, which was directly 

engaged in interstate commerce, was not coincidental. Rather, 

the Court is convinced by the evidence presented at trial that 

appellants targeted the Martins because of their interest in 

Rosa Medical Center.” (emphasis removed)); United States v. 

Nguyen, 246 F.3d 52, 54 (1st Cir. 2001) (jurisdictional nexus 

met in home robbery because “the evidence clearly shows 

that the conspirators planned to steal the earnings of a 

business in interstate commerce.”). Such targeting also likely 

satisfies the standards outlined in Wang and similar cases as 

an instance when the robbery of an individual nonetheless 

affects interstate commerce. See Perrotta, 313 F.3d at 37-38 

(“The [Hobbs Act’s] jurisdictional nexus could be satisfied by 

showing that the victim directly participated in interstate 

commerce; that the victim was targeted because of her status 

as an employee at a company participating in interstate 

commerce; that the harm or potential harm to the individual 

would deplete the assets of a company engaged in interstate 

commerce; [or] that the crime targeted the assets of a business 

rather than an individual.”) (citations omitted); Wang, 222 

F.3d at 240 (“[T]he Government might make such a showing 
14

[of a robbery’s substantial connection to interstate commerce] 

by demonstrating that the defendant knew of or was 

motivated by the individual victim’s connection to interstate 

commerce.”); Collins, 40 F.3d at 100 (“Criminal acts directed 

toward individuals may violate section 1951(a) only if: (1) the 

acts deplete the assets of an individual who is directly and 

customarily engaged in interstate commerce; (2) if the acts 

cause or create the likelihood that the individual will deplete 

the assets of an entity engaged in interstate commerce; or (3) 

if the number of individuals victimized or the sum at stake is 

so large that there will be some ‘cumulative effect on 

interstate commerce.’” (citations omitted)).

Despite this line of cases, Powell argues that what he 

terms the “targeting theory” is inapposite. He asserts that, 

because nearly every robbery targets moneys or goods 

obtained in interstate commerce, the theory collapses any 

jurisdictional limit on the Hobbs Act’s reach. Next, in a 

contention advanced primarily at oral argument, he suggests 

that the targeting theory’s focus on intent may be appropriate 

for a Hobbs Act conspiracy or attempt charge, where the 

effect on commerce may only be potential, but is misapplied 

to the substantive charge, which purportedly requires an 

actual effect on interstate commerce for conviction.

We find these arguments unconvincing. As to the first 

contention, Powell’s description of a robbery targeted at 

money and goods coincidentally obtained in interstate 

commerce is not the sort of targeting at issue here. Powell 

did not rob his victims merely because he believed they had 

money or valuables, and these items happened to come from
15

interstate commerce, as Powell’s hypotheticals posit. The

link to commerce was more direct: Powell specifically

targeted the proceeds of businesses engaged in interstate 

commerce. Accordingly, although they took place outside the 

confines of the victims’ stores, the robberies here were 

nonetheless “directed at a business establishment,” which 

Powell concedes lies within Hobbs Act jurisdiction. Br. for 

Appellant at 17. Targeting of this sort satisfies the Hobbs 

Act’s jurisdictional nexus. 

The second argument misstates circuit law. As noted, 

we have held that the effect on interstate commerce required

for a Hobbs Act conviction need only be “potential,” and

have never limited this standard solely to convictions for 

Hobbs Act conspiracy. See Urban, 404 F.3d at 765-66 & n.3

(endorsing, after a lengthy discussion, the use of the 

“potential” effect on commerce standard in “the context of 

substantive Hobbs Act cases”); Haywood, 363 F.3d at 209-10 

(citing precedent that the effect on commerce need only be 

potential in upholding a conviction for a substantive Hobbs 

Act violation). We have also observed that, although some 

circuits have adopted a requirement of an actual effect in 

substantive cases, see, e.g., United States v. Williams, 308 

F.3d 833, 838 (8th Cir. 2002); United States v. Carcione, 272 

F.3d 1297, 1300-01 n.5 (11th Cir. 2001), the weight of 

authority endorses the position we have adopted, see Urban, 

404 F.3d at 766 n.3 (collecting cases). 

Conviction under the Hobbs Act does not require proof 

that the defendant intended to affect interstate commerce. See 

Third Circuit Model Criminal Jury Instructions § 6.18.1951-7 
16

(2010). But the defendant’s intent is nonetheless relevant, 

because the government may establish the jurisdictional 

nexus by demonstrating that the “natural consequences” of 

the robbery would result in an effect on interstate commerce, 

Urban, 404 F.3d at 762, and intent is probative, although not 

dispositive, on this question. Here, Powell deliberately 

sought to rob business owners to obtain proceeds of

businesses engaged in interstate commerce. This targeting 

and the resultant robberies of those owners were sufficient for 

a rational jury to conclude beyond a reasonable doubt that the 

“natural consequences” of Powell’s actions were an actual or 

potential effect on interstate commerce.

There was also sufficient evidence to sustain Powell’s

conviction under what we have termed “the depletion of the 

assets” theory, “whereby proof that a Hobbs Act violation 

depletes the assets of a business engaged in interstate 

commerce conclusively establishes the effect on commerce 

requirement.” Urban, 404 F.3d at 762. In Urban, we 

comprehensively surveyed our precedent, as well as that of 

our sister circuits, and found repeated and unequivocal 

endorsement of the application of this standard to Hobbs Act 

violations. Id. at 763-66 & n.3; see also Haywood, 363 F.3d 

at 210; United States v. Cerilli, 603 F.2d 415, 423-24 (3d Cir. 

1979); United States v. Mazzei, 521 F.2d 639, 642-43 (3d Cir. 

1975) (en banc). Our sister circuits have specifically applied 

the theory to uphold Hobbs Act convictions for home 

robberies that seized business assets. See United States v. 

Jimenez-Torres, 435 F.3d 3, 9 (1st Cir. 2006) (“Depletion of 

the assets of a business engaged in interstate commerce is a 

common method for demonstrating that a robbery had an 
17

effect on interstate commerce. This is so even if the 

business’s assets were stolen from a home.” (citation 

omitted)).

The undisputed evidence at trial established that 

Powell and his accomplices stole business assets in both 

robberies: approximately $2300 from Star Wigs,8

In sum, the circumstances of this case—where the 

and $140 

and credit card receipts from Dollar Plus. Although the 

amount taken in the Dollar Plus robbery was comparatively 

small, we have never suggested that a robbery can affect 

commerce only if a substantial amount of a business’s assets 

are stolen. See Walker, 657 F.3d at 180 (rejecting argument 

that robbery of drug dealer of $60 in cocaine and $40-$50 in 

cash did not affect interstate commerce because “we have 

found the de minimis standard satisfied in similarly lowstakes robberies”); Haywood, 363 F.3d at 211 & n.7

(upholding a Hobbs Act conviction based on depletion of 

assets because of theft of $50-$70 in cash from a bar). 

Viewing the evidence in the light most favorable to the 

government, there was sufficient evidence to find beyond a 

reasonable doubt that the theft of business assets in the two 

robberies had an actual or potential de minimis effect on 

interstate commerce.

 8 Consistent with our standard of review, we construe the 

dispute over the amount taken in the Y.B. robbery in the light 

most favorable to the government. But our conclusion would 

be the same if the robbery had only netted $1060 in business 

proceeds.
18

evidence established that Powell and his accomplices targeted

interstate businesses and stole business proceeds—support a 

rational jury’s conclusion that the Hobbs Act’s jurisdictional 

nexus was satisfied beyond a reasonable doubt. The fact that 

the robbers believed it would be easier and more profitable to 

commit their crimes at business owners’ homes, rather than in 

the stores they owned, cannot be read to negate the robberies’ 

effect on interstate commerce and defeat otherwise available 

federal jurisdiction.

B.

Powell also challenges the District Court’s jury 

instructions with respect to the interstate commerce prong of 

a Hobbs Act violation.9

The third element that the government 

must prove beyond a reasonable doubt is that 

(name)’s conduct affected or could have 

affected interstate commerce. Conduct affects 

interstate commerce if it in any way interferes 

 At trial, the government proposed the 

Third Circuit model jury instruction for the required Hobbs 

Act element of effect on interstate commerce that read:

 9 We review a district court’s refusal to give a certain 

instruction for abuse of discretion, but exercise plenary 

review to determine whether the jury instructions stated the 

proper legal standard. United States v. Leahy, 445 F.3d 634, 

642 (3d Cir. 2006). We consider the jury instructions as a 

totality and do not evaluate particular sentences or paragraphs 

in isolation. Id.
19

with, changes, or alters the movement or 

transportation or flow of goods, merchandise, 

money, or other property in commerce between 

or among the states. The effect can be minimal.

It is not necessary to prove that (name) 

intended to obstruct, delay or interfere with 

interstate commerce or that the purpose of the 

alleged crime was to affect interstate commerce. 

Further, you do not have to decide whether the 

effect on interstate commerce was to be harmful 

or beneficial to a particular business or to 

commerce in general. You do not even have to 

find that there was an actual effect on 

commerce. All that is necessary to prove is that 

the natural consequences of the offense 

potentially caused an effect on interstate 

commerce to any degree, however minimal or 

slight.

Third Circuit Model Criminal Jury Instructions § 6.18.1951-7 

(2009). The government also proposed an additional 

paragraph describing the depletion of the assets theory 

endorsed in Urban, 404 F.3d at 763-67.10

 10 That paragraph read:

 Powell objected

You can, but are not required to, find an effect 

on interstate commerce if the defendant’s 

actions reduced the assets of a business engaged 

or purchasing goods or services in interstate 

commerce, which assets would otherwise have 
20

and proposed an alternate instruction that would require the 

jury to find a substantial connection between the individual 

robbed and a business engaged in interstate commerce for 

conviction.

11

The District Court did not abuse its discretion in 

rejecting Powell’s proposed instruction. The instruction 

given reflected circuit precedent by requiring the government 

to prove beyond a reasonable doubt an actual or potential de 

minimis effect on interstate commerce for conviction. We 

interpret the addition of the “depletion of the assets” 

paragraph not to supplant or expand the standard outlined in 

the model instruction, but to exemplify one way the required 

nexus can be established. See Walker, 657 F.3d at 183

(“[W]hile the government can and often will rely upon the 

 The District Court charged the jury with the 

instruction as proposed by the government.

 

been available for conducting the purchase of 

such goods or services in interstate commerce.

App. for Appellant at 561a.

11 Powell’s proposed instruction read, in relevant part:

Where the robbery is of an individual in his or 

her home, and the Government seeks to prove 

an effect on interstate commerce by showing a 

connection between an individual victim and a 

business engaged in interstate commerce, that 

connection must be a substantial one – not one 

that is fortuitous or speculative.

App. for Appellant at 562a.
21

depletion of assets theory, it is only required to present 

evidence proving that the ‘defendants’ conduct produces any 

interference with or effect upon interstate commerce, whether 

slight, subtle, or even potential.’” (quoting Haywood, 363

F.3d at 209-10)). Here, as in Urban and Haywood, the 

application of the theory is unproblematic.

In declining to explicitly require a substantial 

connection between the robbery of an individual and 

interstate commerce for conviction under the Hobbs Act, we 

do not suggest that Hobbs Act jurisdiction is limitless. Our 

precedent has underscored the concern that the prevalence of 

interstate commerce in our modern society could elevate 

garden-variety street crime to federal Hobbs Act offenses, 

thereby “supplanting the state criminal systems that quite ably 

address classic state-law crimes.” Walker, 657 F.3d at 184; 

see also Jimenez-Torres, 435 F.3d at 7-8 (“Where . . . the 

crime concerns the robbery of a home rather than of a 

business, we approach the task of applying the de minimis 

standard with some caution, lest every robbery (which by 

definition has some economic component) become a federal 

crime.”). Like the Wang line of cases, we would likely find 

problematic Hobbs Act prosecutions for robberies that 

“cause[] only a speculative indirect effect on a business 

engaged in interstate commerce,” 222 F.3d at 238; cf. United 

States v. McGuire, 178 F.3d 203, 209-12 (3d Cir. 1999) 

(finding insufficient evidence of effect of interstate commerce 

under 18 U.S.C. § 844, the federal arson statute, where 

defendant blew up a car containing a bottle of orange juice 

that had traveled in interstate commerce and was intended for

a local catering business).
22

But this case demonstrates the contrary hazard in 

adopting a bright-line rule that sharply differentiates a home 

from business premises for the purposes of Hobbs Act 

jurisdiction. As discussed, the facts of this case, where 

robbers targeted two businesses engaged in interstate 

commerce to obtain their proceeds, place it within Hobbs Act 

jurisdiction. This case differs from the typical Hobbs Act 

prosecution of a business holdup only because the robbers 

elected to rob business owners at their homes, not in their 

stores. The critical question under the Hobbs Act is the

robbery’s effect on interstate commerce; where the robbery 

occurs is but one factor in assessing this issue. See Carcione, 

272 F.3d at 1301 n.6 (“[I]n determining whether there is a 

minimal effect on commerce [under the Hobbs Act], each 

case must be decided on its own facts.” (quoting United 

States v. Rodriguez, 218 F.3d 1243, 1245 (11th Cir. 2000))).

In short, the District Court’s instruction accurately 

stated circuit law on the Hobbs Act’s jurisdictional nexus.

III.

For the foregoing reasons, we will affirm the judgment 

of conviction and sentence.