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05-1486-cr United States v. Parkes UNITED STATES COURT OF APPEA LS FOR THE SECONDCIRCUIT August Term, 2 006 1 2 (Argued: Novem ber 13, 2006 Decided: August 15, 20 07) 3 4 Docket No. 05- 1486-cr 5 6

- - - - - - - - - - - - - - - - - - - -x 7 8 UNITED STATES OF AMERICA, 9 10 Appellee , 11 12 -v.- 13 14 OTIS PARKES, 15 16 Defendant-Appe llant . 17 18

- - - - - - - - - - - - - - - - - - - -x 19 20 Before: JACOBS, Chief Judge , McLAUGHLIN a nd 21 CALABRESI, Circuit Judges . 22 23 Appeal from a judgment of co nviction enter ed by the 24 United States District Courtfor the South ern District o f 25 New York (Kapl an, J. ). The princi pal question r egards the 26 nature of the evidence requi red to satisfy the interstat e 27 commerce eleme nt of the Hobb s Act, 18 U.S. C. § 1951. 28 The convictionis affirmed a nd the case is remanded for 29 re-sentencing. 302 JAMES M. BRANDEN , Law Office of 1 James M. Branden, New York, New 2 York, for Defendant-Appellant . 3 4 RICHARD C. DADDARIO, Assistant 5 United States Attorney (Celeste 6 L. Koeleveld, Assistant United 7 States Attorney, on the brief ), 8 for Michael J. Garcia, United 9 States Attorney for the Southern 10 District of New York, New York, 11 New York, for Appellee . 12 13 14 DENNIS JACOBS, Chief Judge : 15 Defendant-appellant Otis Parkes appeals from ajudgment 16 entered in theUnited States District Cour t for the Sout hern 17 District of Ne w York (Kaplan , J. ), convicting him on 18 multiple counts arising out of his participation in a 19 botched robber y targeting dr ugs and drug p roceeds, durin g 20 which the vict im was shot an d killed by on e of Parkes’s two 21 coconspirators . 22 Parkes argues (I) that the e vidence adduce d to prove a 23 nexus with int erstate commer ce under the H obbs Act, 18 24 U.S.C. § 1951( a), was insuff icient, and th at in any even t 25 the district c ourt abused it s discretion b y allowing the 26 government to reopen its cas e to adduce (s ome of) that 27 evidence; (II) that the evidence was in sufficient to support 28 Pinkertonliability forthe murder; ( III) that the district 291 On a challeng e to the suffi ciency of the evidence, 1 “we view the e vidence in thelight most favorable to the 2 government, dr awing all infe rences in the government’s f avor 3 and deferring to the jury’s assessments ofthe witnesses ’ 4 credibility.” United States v. Arena , 180 F.3d 380 , 391 (2d 5 Cir. 1999) (in ternal quotati on marks omitt ed). 6 3 court abused i ts discretion by refusing togrant a new t rial 1 based on newly discovered ev idence that a cooperating 2 witness had pl otted to kill another witnes s; and (IV) th at 3 the prosecutormade prejudic ial statements in summation. 4 We hold (contr ary to the pos ition argued b y the 5 government) th at the Hobbs A ct requires th e jury to find 6 that a robbery of drugs and drug proceeds affects inters tate 7 commerce; but we conclude th at sufficient evidence was 8 introduced as to the attempt ed robbery in this case. We 9 reject defenda nt-appellant’s remaining cha llenges, but 10 vacate and remand in order t o allow the di strict court t o 11 correct certai n specified er rors in the se ntence 12 calculation. 13 14 Background 15 The Robbery . Viewed in t he light most favorable to t he 16 government, 1 the evidence adduced at tri al (the substa nce of 17 which stands u nchallenged by Parkes) was a s follows. 184

In June 2003, Steven Young p roposed to Par kes and Duane 1 Beaty that the y rob a drug dealer, Ruben Medina. Beaty (who 2 became a coope rating witness ) testified th at Young 3 “explain[ed] t o us how he kn ew a drug deal er [Medina] th at 4 had money and drugs on the t able selling o ut of a little 5 room, and he j ust had the st uff spread outon the table, and 6 it would be ea sy to go in an d rob him and leave with the 7 proceeds.” Tr ial Tr. at 265 (Oct. 25, 200 4). In the ea rly 8 morning hours of June 17, 20 03, Parkes, Be aty and Young met 9 in Parkes’s Je ep; Young conf irmed that theother two wer e 10 “packing” guns . Trial Tr. a t 272 (Oct. 25 , 2004). Parkes 11 drove to Medin a’s building, waited until s omeone came ou t, 12 and the three slipped in. 13 The door to Me dina’s apartme nt was unlocke d; the 14 robbers entere d with guns dr awn, and beganbinding the 15 people who had been sleepingin the variou s rooms. Whil e 16 this was goingon, Medina en tered the apar tment with his 17 girlfriend, De lilah Lugo. Y oung ordered L ugo into Medin a’s 18 room with Park es (where a cl ear plastic ba g was put overher 19 head and a gunstuck in her face), but kep t Medina in th e 20 hallway with h imself and Bea ty. 21 While Beaty qu estioned Medin a in the hall about the 225

drugs and mone y, Young struc k one of the r esidents, caus ing 1 his head to bl eed, and then brought him toMedina’s room 2 where Parkes r estrained him with duct tape . Beaty testi fied 3 that he feared Young was get ting “out of h and,” so he ca lled 4 Young to stay with Medina wh ile Beaty retu rned to Medina ’s 5 room and brokethe lock to t he closet in which he suspec ted 6 the drugs and proceeds were hidden. TrialTr. at 281, 2 82 7 (Oct. 25, 2004 ) 8 As Beaty was s earching the c loset, he hear d Young 9 threatening toshoot Medina, followed by agun shot. Beaty 10 ran to the hal l, saw Medina shot and lyingon his side, and 11 watched Young shoot Medina t wo more times in his back. 12 The robbers fl ed to the Jeep , and headed t oward Beaty’s 13 apartment. Yo ung, who was g oing elsewhere , got out to t ake 14 a cab. The po lice confronte d Parkes and B eaty soon afte r 15 they arrived a t Beaty’s plac e. One office r searched the 16 Jeep and alert ed his partnerthat he found a gun; Parkes ran 17 off and Beaty was arrested. The police se arch of Parkes ’s 18 Jeep yielded: (1) a loaded h andgun; (2) a pair of gloves 19 with Parkes’s DNA on the ins ide and, on th e outside, the 20 blood of the man Young had a ssaulted and P arkes had boun d; 21 (3) a wallet c ontaining Parkes’s identific ation; (4) a r oll 226

of duct tape o f the type use d to bind the people in the 1 apartment; and (5) a cell ph one which Medi na had been 2 carrying on th e night he was shot. 3 The Trial . The events of the robbery were recounte d at 4 trial by Beaty , Medina’s gir lfriend Lugo, police officer s, 5 and residents of the apartme nt. Additiona lly, a friend of 6 Parkes testifi ed he came to her place earl y in the morni ng 7 of June 17 and made a series of phone call s; in one call , 8 Parkes told someone to repor t the Jeep sto len. She also 9 testified that , weeks later, Parkes told h er that he had 10 been involved in a shooting, had his Jeep searched by 11 police, and ra n away when th e police found a gun. A 12 detective test ified that his search of Med ina’s room yie lded 13 $4,000 in a ja cket pocket ha nging in Medin a’s closet, on e 14 large bag of marijuana, and 58 smaller “ni ckel bags.” 15 After the gove rnment rested, Parkes moved for acquittal 16 under Federal Rule of Crimin al Procedure 2 9 on the groun ds 17 that the gover nment had fail ed to satisfy the Hobbs Act’ s 18 interstate com merce element, and had not, for the purpos e of 19 Pinkertonliability, adduced evidencethat Medina’s murder 20 was reasonably foreseeable. The district court denied 21 Parkes’s motio n. 227

The issue of i nterstate commerce arose aga in during the 1 charge confere nce. Initiall y, the court’s proposed Hobb s 2 Act charge required the jury to find that the attempted 3 robbery “poten tially affecte d interstate c ommerce.” Tri al 4 Tr. at 480 (Oc t. 26, 2004). But during th e charge 5 conference, th e district judge briefly cha nged course: h e 6 said that he i ntended to remove that langu age from the 7 charge and sub stitute langua ge instructingthat “if the 8 object of the robbery is to obtain illegaldrugs or mone y 9 earned from th e sale of drug s, the requirement of an eff ect 10 on interstate commerce is sa tisfied.” Tri al Tr. at 392 11 (Oct. 26, 2004 ). Such an in struction, if delivered, wou ld 12 have obviated proof that therobbery affec ted interstate 13 commerce, and instead requir ed only a find ing that the 14 object of the robbery was dr ugs or their p roceeds, on th e 15 theory that su ch a robbery a ffects interst ate commerce ipso 16 facto . But on the next morning, the court dist ributed a 17 redlined charg e which retain ed the origina l language 18 requiring the jury to find t hat the robber y affected 19 interstate com merce, and not simply that t he object of t he 20 robbery was dr ugs or drug pr oceeds. The government, 21 objecting, argued that its p resentation ofevidence was 228

premised on th e assumption t hat the jury w ould not need to 1 affirmatively find that the robbery affect ed interstate 2 commerce, but rather would o nly have to fi nd that the ta rget 3 of the robbery was drugs or proceeds. Thejudge overrul ed 4 the objection, but allowed t he government to reopen its case 5 (over defense objection) to supplement therecord. 6 The governmentcalled an exp erienced gover nment 7 investigator who testified ( inter alia ) that: mariju ana “is 8 almost exclusi vely trucked i nto the United States, 9 predominantly through Mexico ”; “[v]ery lit tle” marijuanais 10 grown in New Y ork; and appro ximately five percent of the 11 arrests the investigator made in the Bronxwere of out-o f12 state purchase rs of marijuan a. Trial Tr. at 408-16 (Oct . 13 26, 2004). Oncross examina tion, the inve stigator conce ded 14 that he did no t know the ori gin of the mar ijuana in Medi na’s 15 room, and thatmarijuana canbe grown indo ors and outdoo rs 16 in New York St ate. 17 Consistent wit h the court’s final ruling, the jury was 18 instructed tha t it had to fi nd that the ro bbery affected 19 interstate com merce. Parkes was convicted on all counts . 20 The district c ourt denied Pa rkes’s post-ve rdict Rule 29 21 motion for acquittal on the ground that th e evidence was 229

insufficient t o satisfy the interstate com merce element of 1 the Hobbs Act. The court al so denied Parkes’s Rule 33 2 motion for a n ew trial, whic h was premised on his assert ion 3 that the prose cutor had miss tated the law to the jury in 4 summation by s tating that “[ d]rug dealing affects inters tate 5 commerce” and “robberies tha t seek drugs a nd drug money do 6 so as well.” Trial Tr. at 4 39-40 (Oct. 25 , 2004). On 7 February 25, 2 005, the distr ict court sent enced Parkes t o 8 life imprisonment. 9 Nearly seven months later, t he government notified 10 Parkes that ithad recently learned that, before Duane B eaty 11 cooperated wit h the governme nt, he had taken steps to have a 12 witness in thi s case killed. Parkes promp tly filed a se cond 13 Rule 33 motion , which was al so denied by t he district co urt. 14 15 I 16 Parkes challen ges the suffic iency of the e vidence to 17 prove the Hobb s Act’s inters tate commerce element. “A 18 defendant chal lenging the su fficiency of t he evidence be ars 19 a heavy burden. . . .” United States v. Pipola , 83 F.3d 20 556, 564 (2d C ir. 1996) (cit ing Glasser v. Uni ted States , 21 315 U.S. 60, 8 0 (1942)); see also United States v. 222 There was onelimited excep tion--one of Medina’s 1 roommates test ified that he occasionally p urchased marij uana 2 from Medina. 3 10 Giovanelli , 464 F.3d 346 , 349 (2d Cir. 2006) ( per curiam ). 1 On a sufficien cy challenge, “we view the e vidence in the 2 light most fav orable to the government, dr awing all 3 inferences in the government ’s favor and deferring to th e 4 jury’s assessments of the wi tnesses’ credi bility.” United 5 States v. Aren a , 180 F.3d 380 , 391 (2d Cir. 1999) (intern al 6 quotation mark s omitted). We will sustainthe jury’s 7 verdict so lon g as “ anyrational trie r of fact coul d have 8 found the esse ntial elements of the crime beyond a 9 reasonable doubt.” Jackson v. Vir ginia , 443 U.S. 307 , 319 10 (1979) (emphas is in original ); see also United States v. 11 Schwarz , 283 F.3d 76, 105 (2d Cir. 2002). 12 As Parkes demo nstrates, ther e was no parti cularized 13 evidence as tothe interstat e nature ( vel non ) of Medina’s 14 drug-dealing b usiness: i.e. the origin ofhis marijuana , his 15 suppliers, theroute and ins trumentality o f delivery to 16 Medina, his bu yers, 2 or his use ofthe proceeds from drug 17 sales. In tes timony introdu ced by the gov ernment to pro ve 18 the interstatenature of dru g dealing gene rally, the wit ness 19 (a law enforcement officer) acknowledged t hat marijuana is 2011

grown within N ew York State, and that nine ty-five percen t of 1 the drug arres ts he made in the Bronx wereof New York S tate 2 residents. Pa rkes argues th erefore that e vidence that 3 Medina was “a local, part-ti me marijuana dealer” is 4 insufficient t o support Hobb s Act liabilit y. 5 Accordingly, t his sufficienc y challenge un der the Hobbs 6 Act squarely p resents a pred icate question : whether evidence 7 that the targe t of a robbery was drugs or their proceeds is 8 sufficient as a matter of law to prove therequisite nex us 9 with interstat e commerce. I f (as the gove rnment asserts ) a 10 robbery target ing drugs or t heir proceeds affects inters tate 11

commerce as a matter of law, then no evidence of a n effect 12 on interstate commerce would have been nec essary: eviden ce 13 that the targe t of the robbe ry was drugs o r proceeds wou ld 14 be enough. Be cause it is un contested on appeal that the 15 object was to rob marijuana and proceeds, Parks’s challe nge 16 would plainly fail under suc h a per se rule, and we would 17 have no need t o consider therecord eviden ce of an 18 interstate eff ect. But if t he Hobbs Act does require pr oof 19 of an effect o n interstate c ommerce--that is, if a robbe ry 20 does not affec t interstate c ommerce as a matter of law 21 merely becausedrugs or proc eeds were its target--then we 2212

must consider whether the li mited evidenceadduced here was 1 sufficient to support Parkes ’s Hobbs Act c onviction. 2 3 A 4 The Constituti on “require[s] criminal conv ictions to 5 rest upon a ju ry determinati on that the de fendant is gui lty 6 of every eleme nt of the crime with which h e is charged, 7 beyond a reaso nable doubt.” United States v. Gaudin , 515 8 U.S. 506, 509- 10 (1995); see also id. at 518-19 (de scribing 9 the “uniform g eneral underst anding . . . t hat the Fifth and 10 Sixth Amendmen ts require conviction by a j ury of all 11 elements of th e crime” (emph asis in origin al)); Sullivan v. 12 Louisiana , 508 U.S. 275 , 277-78 (1993 ) (“The prosec ution 13 bears the burden of proving all elements o f the offense 14 charged, and must persuade t he factfinder beyond a 15 reasonable doubt of the fact s necessary toestablish eac h of 16 those elements .” (citations and internal quotation marks 17 omitted)). 18 In pertinent p art, the Hobbs Act provides for criminal 19 penalties for anyone who “inany way or de gree obstructs , 203 The Hobbs Actdefines “commerce” as: “allcommerce 1 between any po int in a State , Territory, P ossession, or the 2 District of Co lumbia and any point outsidethereof; all 3 commerce betwe en points with in the same St ate through an y 4 place outside such State; an d all other commerce over wh ich 5 the United Sta tes has jurisd iction.” 18 U .S.C. § 1951(b ). 6

4 For simplicit y’s sake, we r efer to this e lement as 1 requiring an e ffect on inter state commerce , because conduct 2 that “obstruct s” or “delays”commerce nece ssarily “affec ts” 3 it. 4 13 delays, or aff ects commerce 3 or the moveme nt of any arti cle 1 or commodity i n commerce, by robbery . . . or attempts o r 2 conspires so t o do.” 4 18 U.S.C. § 1951(a). Prov ing an 3 effect on inte rstate commerc e is thus an e lement of a Ho bbs 4 Act offense, which must be p roven beyond areasonable do ubt 5 to a jury. See United States v. Wilkerson , 361 F.3d 717 , 6 726 (2d Cir. 2 004). “In a H obbs Act prose cution, proof that 7

commerce was a ffected is cri tical since th e Federal 8 Government’s j urisdiction ofthis crime re sts only on th at 9 interference.” United States v. Elias , 285 F.3d 183 , 188 10 (2d Cir. 2002) (internal quo tation marks a nd emendations 11 omitted). “Th ere is nothingmore crucial, yet so striki ngly 12 obvious, as th e need to prov e the jurisdic tional elementof 13 a crime.” United States v. Leslie , 103 F.3d 109 3, 1103 (2d 14 Cir. 1997). 15 Whether a robb ery affects in terstate comme rce is a 1614

mixed questionof fact and l aw: fact insof ar as the jury 1 must determinewhat the robb ery targeted, law insofar as it 2 must determinewhether the t heft of the ta rgeted items 3 affected (or w ould have affe cted) intersta te commerce. 4 In United States v. Gaudin , the Supreme Court held tha t 5 all elements o f a crime, inc luding those i nvolving mixed 6 questions of l aw and fact, must be decided by a jury. See 7 515 U.S. at 51 3. Gaudin was charged with making materially 8 false statemen ts on federal loan documents submitted to the 9 U.S. Departmen t of Housing a nd Urban Devel opment (“HUD”) . 10 Id. at 508. At t rial, the dist rict court ins tructed the 11 jury that, as a matter of law, the stateme nts at issue were 12 material. Id. The Supreme Court conclude d that materia lity 13 was a mixed qu estion of law and fact becau se (factually) the 14 jury had to de termine what w as said and wh at bearing it had 15 on HUD’s loan decision, and then (legally) whether that 16 statement was “material” ins ofar as it had a tendency to 17 influence thatdecision. See id. at 512. The Court held 18 that “the jury ’s constitutio nal responsibi lity is not me rely 19 to determine t he facts, but to apply the l aw to those fa cts 20 and draw the u ltimate conclu sion of guilt or innocence.” 21 Id. at 514. Acco rdingly, the C ourt ruled tha t the district 2215

court infringe d Gaudin’s con stitutional “r ight to have a 1 jury determine , beyond a rea sonable doubt, his guilt of 2 every element of the crime w ith which he i s charged.” Id. 3 at 522-23. 4 Gaudinundid Second Circuit precedent that treat ed the 5 interstate com merce element of the Hobbs Act as a matterof 6 law for the ju dge, as we rec ognized in United States v. 7 Vasquez , 267 F.3d 79, 8 9 (2d Cir. 200 1). Vasquez reviewed 8 (for plain err or) a jury cha rge regarding a Violent Crimes 9 in Aid of Rack eteering (“VCAR”) offense, 1 8 U.S.C. § 195 9. 10 267 F.3d at 86 -87. Like theHobbs Act, th e VCAR statute 11 contains a jur isdictional el ement requirin g proof that t he 12 prohibited con duct “affect[] interstate . . . commerce.”18 13 U.S.C. § 1959( b)(2). The di strict court h ad instructed the 14 jury that drugtrafficking a ffects interst ate commerce a s a 15 matter of law. 267 F.3d at 86. On appeal , we observed that 16 this instructi on “removed fr om the jury atleast a porti on 17 of the jurisdi ctional elemen t of the VCAR offenses,” id. at 18 88, so that un der Gaudin(even on plai n error review ) the 19 instruction th at drug dealin g affects inte rstate commerc e as 20 a matter of law might “not p ass muster.” Id. at 89. (The 21 Constitutional ity of the ins truction was n ot categorical ly 225 After recitin g, at length, other portions in the 1 charge, we con cluded that “[ w]hen examined in its entire ty, 2 the jury charg e stated sever al times that it was for the 3 jury to find whether the int erstate/foreign commerce element 4 had been prove n by the gover nment.” Vasquez , 267 F.3d at 5 89. As to theparticular in struction disc ussed in text, the 6 Court stated t hat while it may have had “c oncerns” with the 7 propriety of t hat charge, “Vasquez’s claim fails becausehe 8 cannot satisfy the fourth pr ong of the pla in error test, 9 that the erroraffected the fairness, inte grity, or publ ic 10 reputation of the judicial p roceedings.” Id. at 89-90 11 (internal quot ation marks an d emendations omitted). 12 16 decided becaus e Vasquez’s co nviction was upheld on other 1 grounds. 5 ) Vasquez observed that Gaudindirectly conf licted 2 with Circuit c ase law, citin g as one examp le United States 3 v. Calder , 641 F.2d 76 (2d Cir. 1981), which Vasquez 4 described as having held that “in a Hobbs Act case, ‘[i]t 5 was for the court to determine as a matter of law the 6 jurisdictional question of whether the alleged conduct 7 affected interstate commerce.’” Vasquez , 267 F.3d at 89 8 (quoting Calder , 641 F.2d at 78). Vasquez thus consider ed 9 that this aspe ct of Calder ’s holding was abrogated by 10 Gaudin . Id. 11 After Gaudinand Vasquez , it appeared settled that i t 12 was for the ju ry alone to we igh the inters tate commerce 13 element of theHobbs Act. B ut in United States v. Fabian , 14 this Court hel d, as a matterof law, that “loan sharkingand 1517

drug proceeds affect interst ate commerce.”312 F.3d 550 , 1 555 (2d Cir. 2 002). Fabian was convicted under the Hobb s 2 Act for his pa rticipation intwo robberies : the first 3 targeted an as sumed loan sha rk; the second , $300,000 in drug 4 proceeds belie ved to have be en stolen from Miami drug 5 dealers. Id. at 553. Fabi an argued on appeal that the 6 district courterroneously i nstructed the jury that 7 interstate com merce was affe cted as a matt er of law by s uch 8 offenses, and that evidence on the point w as insufficien t. 9 Id. at 553-58. I n affirming, we rejected bot h arguments on 10 the ground tha t the intersta te commerce el ement of the H obbs 11 Act was satisf ied as a matte r of law by pr oof that the 12 target was theproceeds of d rug or loan sh arking activit ies, 13 id. at 557; for t hat propositio n, we cited to United States 14 v. Genao , 79 F.3d 1333 , 1336 (2d Cir . 1996). 312 F.3d at 15 555. 16 Genao had rejected a challenge tothe constitut ionality 17 of the Control led Substances Act (“CSA”), 21 U.S.C. § 80 1 et 18 seq. , concluding tha t “specific [c ongressional] findings 19 that local nar cotics activit y has a substa ntial effect o n 20 interstate com merce” rendere d the CSA cons titutional eve n as 216 In the CSA, a t 21 U.S.C. § 801, Congress set forth 1 its findings t hat both inter - and intrasta te drug dealin g 2 affect interst ate commerce: 3 4 (3) A major po rtion of the t raffic in cont rolled 5 substances flo ws through int erstate and fo reign 6 commerce. Inci dents of the t raffic which a re not 7 an integral pa rt of the inte rstate or fore ign 8 flow, such as manufacture, l ocal distribut ion, and 9 possession, no netheless havea substantialand 10 direct effect upon interstat e commerce bec ause-- 11 12 (A) after manu facture, many controlled 13 substances aretransported i n interstate 14 commerce, 15 (B) controlled substances di stributed loca lly 16 usually have b een transporte d in interstat e 17 commerce immed iately before their 18 distribution, and 19 (C) controlled substances po ssessed common ly 20 flow through i nterstate commerce immediate ly 21 prior to such possession. 22 (4) Local dist ribution and p ossession of 23 controlled sub stances contri bute to swelli ng 24 the interstatetraffic in su ch substances. 25 (5) Controlled substances ma nufactured and 26 distributed in trastate canno t be 27 differentiated from controll ed substances 28 manufactured a nd distributed interstate. T hus, 29 it is not feas ible to distin guish, in term s of 30 controls, between controlled substances 31 manufactured a nd distributed interstate an d 32 controlled sub stances manufa ctured and 33 distributed in trastate. 34 (6) Federal co ntrol of the i ntrastate 35 incidents of t he traffic in controlled 36 substances is essential to t he effective 37 control of theinterstate in cidents of suc h 38 traffic. 39 18 applied to pur ely intrastatedrug crimes. 6 Genao , 79 F.3d 11 21 U.S.C. § 80 1. 2 19 at 1337. The FabianCourt incorpo rated the CSA findings 1 into our Hobbs Act jurisprudence and held that these 2 congressional findings rende red robberies that target dr ugs 3 or proceeds in herently “with in the jurisdi ction of the H obbs 4 Act.” 312 F.3 d at 555. From the premise that “drug 5 proceeds affec t interstate c ommerce,” Fabiandeduced that 6 when the inten ded target of a robbery is d rug proceeds, the 7 Hobbs Act’s in terstate comme rce element is satisfied as a 8 matter of law. Id. at 555-56. 9 The governmentnow urges us to follow Fabian , which it 10 argues has bee n reinforced b y the Supreme Court’s decisi on 11 in Gonzales v. Ra ich , 545 U.S. 1 ( 2005). Raichupheld the 12 CSA against anas-applied at tack to the cr iminalization of 13 the intrastatecultivation a nd use of mari juana, and 14 validated cong ressional find ings (in the C SA) that all d rug 15 dealing--even if purely intr astate--affect s interstate 16

commerce. Id. at 22. The C ourt affirmed Congress’s power 17 to regulate su ch “purely loc al activities that are part of 18 an economic cl ass of activit ies that have a substantial 19 effect on inte rstate commerc e,” id. at 17 (intern al 2020

quotation mark s omitted); it“ha[d] no dif ficulty conclu ding 1 that Congress had a rationalbasis for bel ieving that 2 failure to regulate the intr astate manufac ture and 3 possession of marijuana woul d leave a gapi ng hole in the 4 CSA,” id. at 22. 5 We now reject the propositio n--urged by th e government 6 here and previ ously accepted in Fabian --that finding s 7 recited by Con gress in the C SA, dispense w ith the need f or a 8 jury finding t hat each eleme nt of the Hobb s Act has been 9 proven beyond a reasonable doubt. This pr oposition 10 conflates dist inct inquiries . Under the C SA, an effect on 11 interstate com merce is not an element; s o the inquiry for 12 the Court was the sufficienc y of findings by Congress to 13 support that l egislative act . Under the H obbs Act, an 14 effect on inte rstate commerc e is an element ofthe offense; 15 so the inquiry for this Cour t is the suffi ciency of evidence 16 to support a j ury finding onthat point. 17 Subsequent to Fabian , the Supreme Court has sharpened 18 our focus on t he separate co nsideration ofeach element that 19 composes an of fense. See, e.g. , United States v. Booker , 20 543 U.S. 220, 230 (2005). C ongressional f indings cannot 21 substitute forproof beyond a reasonable doubt. See United 2221

States v. Chan ce , 306 F.3d 356 , 377-78 (6th Cir. 2002) 1 (rejecting theproposition t hat “the prose cution is reli eved 2 from proving a n essential el ement of [a Ho bbs Act] offen se 3 by proof beyon d a reasonabledoubt where C ongress has ma de 4 findings of fa ct concerning the area regul ated”); United 5 States v. Pete rson , 236 F.3d 848 , 855 (7th Cir . 2001) 6 (observing tha t “the government is conflat ing its burdenof 7 proof under tw o distinct sta tutory schemes --the Controll ed 8 Substances Act. . . and theHobbs Act,” a nd holding tha t 9 the “specific findings” in t he CSA cannot excuse proof o f an 10 effect on inte rstate commerc e in a Hobbs Act prosecution 11 (internal cita tions omitted) ); United States v. Gomez , No. 12 99 Cr. 740, 20 05 WL 1529701, at *9 (S.D.N .Y. June 28, 2 005) 13 (McKenna, J. ) (“Nothing in[Second Circu it case law] 14 supports the v iew that the 2 1 U.S.C. § 801 findings have 15 replaced the t raditional Hobbs Act requirement that an 16 effect [on int erstate commer ce] (however m inimal or even 17 potential) be proved.”); see also United States v. Balsam , 18 203 F.3d 72, 8 9 (1st Cir. 20 00) (citing Gaudinfor the 19 proposition th at the jury in struction that , “as a matterof 20 law[,] the bus inesses at iss ue in this cas e were engaged in 21 interstate com merce” was err oneous becauseit violated t he 227 Prior to fili ng, we have ci rculated this opinion to 1 all active mem bers of this c ourt, and rece ived no object ion. 2 See, e.g. , United States v. Crosby , 397 F.3d 103 , 105 n.1 3 (2d Cir. 2005) ; Jacobson v. Fi reman’s Fund I ns. Co. , 111 4 F.3d 261, 268 n.9 (2d Cir. 1 997). We refe r to this proc ess 5 as a “mini-en banc.” See Michel v. I.N. S. , 206 F.3d 253 , 6 268 (2d Cir. 2 000) (Cabranes , J. , concurring). 7 22 defendant’s co nstitutional “ right to have a jury determi ne, 1 beyond a reaso nable doubt, h is guilt of ev ery element ofthe 2 crime with whi ch he is charg ed” (internal quotation mark s 3 omitted)). Tothe extent th at Fabianconflicts wit h this 4 holding, it is no longer goo d law. 7 5 The parties co ntest the prop riety of the j ury 6 instructions g iven here. Inlight of the discussion abo ve, 7 we conclude th at the distric t court proper ly refused the 8 government’s r equest to inst ruct the jury that “if the 9 object of the robbery is to obtain illegaldrugs or mone y 10 earned from th e sale of drug s, the requirement of an eff ect 11 on interstate commerce is sa tisfied.” Tria l Tr. at 382 ( Oct. 12 25, 2004). Th at instructionwould have im permissibly 13 violated Parke s’s “right to have a jury de termine, beyon d a 14 reasonable doubt, his guilt of every eleme nt of the crime 15 with which he is charged.” Gaudin , 515 U.S. at 522-23. The 16 instruction wh ich the distri ct court deliv ered properly 17 respected thatright, becaus e it allowed t he jury to pas s 1823

upon the Hobbs Act’s interst ate commerce e lement: “for a 1 robbery to be punishable under federal law , the governme nt 2 must show thatif the robber y occurred, in terstate comme rce 3 would have bee n affected in some way[,] ev en if the effe ct 4 would have bee n slight.” Tr ial Tr. at 479(Oct. 26, 200 4). 5 Since we concl ude that the H obbs Act requi res the jury 6 to determine, beyond a reaso nable doubt, whether the con duct 7 affected, or w ould have affe cted, intersta te commerce, we 8 must consider whether the ev idence adduced here was 9 sufficient to support that f inding. 10 11 B 12 The Hobbs Act prohibits robb eries that aff ect 13 interstate com merce “in any way or degree, ” 18 U.S.C. § 14 1951(a); so th e required sho wing of an eff ect on interst ate 15 commerce is de minimis . See United States v. Arena , 180 16 F.3d 380, 389 (2d Cir. 1999) ; United States v. Silverio , 335 17 F.3d 183, 186 (2d Cir. 2003) ( per curiam ); United States v. 18 Augello , 451 F.2d 116 7, 1169-70 (2d Cir. 1971). “The 19 jurisdictionalrequirement o f the Hobbs Ac t may be satis fied 20 by a showing o f a very sligh t effect on in terstate comme rce. 21 Even a potenti al or subtle e ffect on comme rce will suffi ce.” 228 We have observed that the r each of the Ho bbs Act is 1 “coextensive w ith that of th e Commerce Cla use of the Uni ted 2 States Constit ution.” United States v. Elias , 285 F.3d 183 , 3 188 (2d Cir. 2 002) (citing Stirone v. Uni ted States , 361 4 U.S. 212, 215 (1960); United States v. Leslie , 103 F.3d 5 1093, 1101 (2d Cir. 1997)). As discussed in text, this 6 means only tha t a de minimis showing of aneffect on 7 interstate com merce is suffi cient to satis fy this elemen t; 8 it does not obviate the need for some show ing. 9

9 Because we co nclude that th e evidence con cerning 1 Medina’s marij uana dealing w as sufficient to support 2 Parkes’s Hobbs Act convictio n, we need notaddress his 3 arguments rega rding Delilah Lugo’s testimo ny that Medina 4 also sold coca ine. 5 24 United States v. Angelilli , 660 F.2d 23, 35 (2d Cir. 1 981) 1 (internal cita tion omitted); see also United States v. 2 Jones , 30 F.3d 276, 284-85 (2d Ci r. 1994) (“Sufficient p roof 3 to support a v iolation of th e [Hobbs] Act has been prese nted 4 if the robbery . . . ‘in any

way or degree ,’ affects 5 commerce, eventhough the ef fect is not im mediate or dir ect 6 or significant , but instead is postponed, indirect and 7 slight.” (quot ing 18 U.S.C. § 1951(a))). 8 8 The limited ev idence adduced at Parkes’s t rial 9 sufficiently s upported the j ury’s conclusi on that the 10 attempted robb ery of Medina (described by Parkes as “a 11 local, part-ti me marijuana dealer,”) would have affected 12 interstate com merce. 9 As Beaty tes tified, Parkes and the 13 others intende d to enter thedealer’s plac e of business, “a 1410 It may well b e that a ratio nal jury couldconclude 1 that the inter state commerceelement is sa tisfied by pro of 2 that a robbery targeted drug s or proceeds of a drug busi ness 3 that is purely intrast ate ; but we need not decide tha t 4 today. 5

11 The required evidence of aneffect need n ot take any 1 particular form or be offere d in any parti cular quantum-

- 2 direct, indire ct, or circums tantial eviden ce could suffi ce. 3 It is a case-b y-case inquiry . 4 25 little room,” and rob the inventory and pr oceeds “spread out 1 on the table”- -a small but g oing enterpris e. Trial Tr. at 2 265 (Oct. 25, 2004). The po lice search ofMedina’s room 3 yielded one la rge bag contai ning marijuana , 58 smaller 4 “nickel bags,”and $4,000 incash. Moreov er, an experie nced 5 narcotics inve stigator testi fied that mari juana “is almo st 6 exclusively tr ucked into theUnited States , predominantl y 7 through Mexico ” and that “[v ]ery little” marijuana is gr own 8 in New York. 10 Trial Tr. at 408-16 (Oct. 26, 2004) . (As 9 discussed in P art I.C, infra , reopening toadmit this 10 evidence was w ithin the dist rict court’s d iscretion.) I n 11 sum, a reasonable juror, hea ring this evidence, could have 12 found that theattempted robbery of Medina ’s marijuana o r 13 proceeds would have affected

interstate commerce “in any way 14 or degree.” 11 18 U.S.C. § 1951(a). 15 1626 C 1 Parkes claims that the distr ict court abus ed its 2 discretion by granting the g overnment’s mo tion to reopenits 3 case to presen t the testimon y of an invest igator regardi ng 4 the general na ture of the dr ug trade. “[E ]ven after a 5 defendant move s under Federa l Rule of Crim inal Procedure29 6 for acquittal, a district ju dge retains wi de discretion to 7 allow the gove rnment to re-o pen its case t o correct erro rs 8 or [if] some o ther compellin g circumstancejustifies a 9 reopening and no substantialprejudice wil l occur.” United 10 States v. Lesl ie , 103 F.3d 109 3, 1104 (2d Ci r. 1997) 11 (internal quot ation marks om itted); cf. United States v. 12 Suarez-Rosario , 237 F.3d 116 4, 1167 (9th C ir. 2001) (“On e 13 purpose of Rul e 29 motions i s to alert thecourt to omit ted 14 proof so that, if it so choo ses, it can al low the government 15 to submit addi tional evidenc e.”). 16 In Leslie , we validated the district court’s decisi on 17 to allow the g overnment to r eopen its casein order to 18 establish a ne xus with inter state commerce . 103 F.3d at 19 1104-05. We o bserved that “ the interstatecommerce element 20 of a criminal statute is . . . a jurisdict ional 21 prerequisite,”and held that“a district c ourt may allow the 2227

government to reopen its cas e to establishthis 1 jurisdictionalpredicate.” Id. at 1104. 2 Here, the dist rict court’s decision to cha nge the jury 3 charge, which (according to the government ) necessitated 4 additional pro of to establis h the jurisdic tional predica te, 5 was a sufficie ntly compellin g circumstance . Moreover, 6 Parkes was notprejudiced by the presentat ion of this 7 evidence upon reopening, rat her than at some earlier poi nt. 8 9 II 10 Parkes asserts that there wa s insufficientevidence to 11 support Pinkertonliability. T he principles that guided ou r 12 review of Park es’s sufficien cy challenge to his Hobbs Act 13 convictions apply here--Parkes bears the heav y burden of 14 demonstrating that no ration al trier of fa ct could have 15 concluded thatParkes bore r esponsibility for Medina’s death 16 under a Pinkertontheory of liability. See United States v. 17 Schwarz , 283 F.3d 76, 105 (2d Cir. 2002). 18 Under Pinkerton v. U nited States , 328 U.S. 640 (1946), 19 “a defendant who does not di rectly commit a substantive 20 offense may ne vertheless be liable if the commission of the 21 offense by a c o-conspirator in furtheranceof the conspi racy 2228

was reasonably

foreseeable t o the defendan t as a consequ ence 1 of their crimi nal agreement. ” Cephas v. Nash , 328 F.3d 98, 2 101 n.3 (2d Ci r. 2003) (citi ng Pinkerton , 328 U.S. at 646- 3 48) . Parkes does not dispute t hat the murderwas committed 4 in furtheranceof the conspi racy, so we ne ed consider on ly 5 whether suffic ient evidence supports the j ury’s conclusi on 6 that it was re asonably fores eeable. 7 An offense by a co-conspirat or is deemed t o be 8 reasonably for eseeable if itis “a necessa ry or natural 9 consequence ofthe unlawful agreement.” Pinkerton , 328 U.S. 10 at 648. Parkes claims that Medina’s murder was not a 11 necessary or natural consequence of the conspiracy to rob 12 Medina, because the conspirators supposed it to be an “easy” 13 robbery. Trial Tr. at 265 (Oct. 25, 2004) . We disagree. 14 Parkes and theothers entere d Medina’s apa rtment before 15 dawn, with pis tols drawn, an d (variously) kicked in door s, 16 rounded up and physically as saulted reside nts (including 17 placing a plas tic bag over t he head of one ), and bound t hem 18 with duct tape . The death o f a victim is a natural 19 consequence ofa robbery whi ch is premised on the use of 20 overmastering force and viol ent armed conf rontation. As the 21 district courtobserved at s entencing: 2229 [This is] not a situation wh ere a couple o f kids 1 run into a sto re to run out with a toasteror 2 something . . . and then someone loses his temper, 3 picks up somet hing and kills somebody. Th is is 4 just not what happened here. You guys wen t there 5 armed and ready for trouble, and it happen ed, and 6 somebody got k illed . . . . 7 8 Sent’g. Tr. at32 (Feb. 25, 2005). 9 Viewing the evidence in th e light most f avorable to th e 10 government and drawing all i nferences in t he government’ s 11 favor, we conc lude that the evidence was s ufficient to 12 support the ju ry’s conclusio n that Medina’ s murder was a 13 natural consequence of the c onspiracy to r ob him. 14 15 III 16 Parkes argues that the distr ict court abus ed its 17 discretion by refusing to gr ant a new tria l based on new ly 18 discovered evi dence that coo perating witne ss Duane Beaty 19 took steps to kill another w itness before he was enliste d by 20 the government . Rule 33(a) of the FederalRules of Crim inal 21 Procedure perm its the distri ct court to “v acate any judgment 22 and grant a ne w trial if theinterest of j ustice so 23 requires.” Th e grant of a Rule 33 motion requires “a re al 24 concern that a n innocent per son may have b een convicted. ” 25 United States v. Ferguson , 246 F.3d 129 , 134 (2d. Cir . 2001) 2630

(internal quot ation marks om itted). This Court reviews a 1 district court ’s denial of aRule 33 motio n only for abu se 2 of discretion. United States v. Snype , 441 F.3d 119 , 140 3 (2d Cir. 2006) . 4 Although Parke s contends tha t Beaty perjur ed himself by 5 not admitting his plot to ki ll a witness, Parkes does no t 6 point to any p erjurious test imony. Cf. United States v. 7 Gambino , 59 F.3d 353, 364-65 (2d Ci r. 1995) (finding that 8 omissions and inconsistencie s did not nece ssarily consti tute 9 perjury). As defense counse l stated in summation: “[Bea ty] 10 told you almos t proudly, it seemed, that i n the course o f 11 his lifetime h e has committe d hundreds of crimes.” TrialTr. 12 at 447 (Oct. 2 6, 2004); Beat y was not aske d to enumerate 13 each one, and his failure todo so sua spontedoes not 14 constitute per jury. 15 Parkes argues alternatively that the distr ict court 16 should have gr anted a new tr ial on the gro und of newly 17 discovered evi dence. A moti on for a new t rial on the gr ound 18 of newly disco vered evidenceis granted “o nly in the most 19 extraordinary circumstances . ” United States v. Spencer , 4 20 F.3d 115, 118 (2d Cir. 1993) (emphasis in original). Ne wly 21 discovered evi dence supports the grant of a new trial on ly 2231

if the defenda nt demonstrate s that the evi dence could no t 1 have been disc overed throughthe exercise of due diligen ce 2 before or duri ng trial, and that the evide nce is “so 3 material and n oncumulative t hat its admiss ion ‘would 4 probably lead to an acquitta l.’” United States v. Zagari , 5 111 F.3d 307, 322 (2d Cir. 1 997) (quoting United States v. 6 Alessi , 638 F.2d 466 , 479 (2d Cir. 1980)). “[N] ew 7 impeachment ev idence is not material, and thus a new tr ial 8 is not required ‘whe n the suppress ed impeachmentevidence 9 merely furnish es an addition al basis on wh ich to impeacha 10 witness whose credibility ha s already beenshown to be 11 questionable.’ ” United States v. Wong , 78 F.3d 73, 79 (2d 12 Cir. 1996) (em phasis in orig inal) (quoting United States v. 13 Payne , 63 F.3d 1200 , 1210 (2d Cir . 1995)). 14 Parkes cannot satisfy this e xacting standa rd: (i) the 15 evidence regar ding Beaty’s p lotting is add itional 16 impeachment; ( ii) according to Parkes, “Be aty’s 17 unreliability was the centra l thrust of th e defense 18 summation”; (i ii) the new ev idence does no t concern the 19 central questi on of Parkes’s involvement i n the attempte d 20 robbery and mu rder; and (iv) there was amp le corroborati ng 21 evidence of Pa rkes’s involvement independe nt of Beaty’s 2232

testimony. Inshort, Parkes is unable to demonstrate th at 1 the jury’s con sideration of evidence of Be aty’s plotting 2 “would probabl y [have led] t o an acquittal .” Alessi , 638 3 F.2d at 479. 4 5 IV 6 Parkes impugns the prosecuto r’s statements in summation 7 that “[d]rug dealing affects interstate commerce” and th at 8 “robberies tha t seek drugs a nd drug money do so as well. ” 9 Trial Tr. at 4 39-40 (Oct. 25 , 2004). Acco rding to Parke s, 10 these argument s constituted an improper at tempt to misst ate 11 the law to thejury. 12 As the distric t court observ ed, these stat ements were 13 (at the very l east) arguably not inappropr iate. The cold 14 record doesn’tpermit an ass essment as to whether the 15 statements wer e intended as a misstatementof law (as Pa rkes 16 argues), or a permissible ar gument of fact(as the distr ict 17 court found). See Trial Tr. at 443 (Oct. 26, 2004) (denying 18 Parkes’s motio n for a mistri al based on th e prosecutor’s 19 statements and observing “I only heard a f actual 20 assertion”). But even if th ey were inappr opriate, the 21 statements wou ld not warrantreversal. 2233

“To warrant re versal, the pr osecutorial mi sconduct must 1 cause the defe ndant substant ial prejudice by so infectin g 2 the trial withunfairness as to make the r esulting 3 conviction a denial of due p rocess.” United States v. 4 Elias , 285 F.3d 183 , 190 (2d Cir. 2002) (intern al quotation 5 marks omitted) . In assessin g the alleged misconduct, we 6 consider “the severity of th e misconduct, the measures 7 adopted to cur e it, and the certainty of c onviction in t he 8 absence of themisconduct.” United States v. Melendez , 57 9 F.3d 238, 241 (2d Cir. 1995) . 10 These challeng ed statements were isolated. “[I]solated 11 remarks are or dinarily insuf ficient [to wa rrant reversal ].” 12 Elias , 285 F.3d at 191. Defense counsel had adequate 13 opportunity inhis summationto dispute th e government’s 14 assertions, an d took it, arguing that the prosecutor “fl atly 15 misstated the law to you,” a nd that “[t]he re has to be 16 pro[of] that t he drug dealin g in this caseaffects 17 interstate com merce. And th ere was no suc h proof.” Tri al 18 Tr. at 454-56 (Oct. 26, 2004 ). In any eve nt, the judge’ s 19 instructions t o the jury--th at it was for the jury to 20 determine whet her the attemp ted robbery af fected interst ate 21

commerce--cure d any possibleprejudice. And even furthe r 2234

assuming, arguendo , that the pro secutor’s rema rks were both 1 improper and u ncured, they w ould not have “so infect[ed] the 2 trial with unf airness as to make the resul ting convictio n a 3 denial of due process.” Elias , 285 F.3d at 190 (internal 4 quotation mark s omitted). 5 6 V 7 The governmenthas brought t o our attentio n two errors 8 in the distric t court’s calc ulation of Par kes’s sentence . 9 First, the sta tutory maximum term of impri sonment for 10 conviction of 18 U.S.C. § 92 2(g) (felon-in -possession ofa 11 firearm) is te n years, not t he twenty year s to which the 12 district courtsentenced Par kes. See 18 U.S.C. § 9 24(a)(2); 13 United States v. Riley , 452 F.3d 160 , 164 (2d Cir. 2006) 14 (observing tha t “the statuto ry maximum pri son term for 15 violation of §922(g)(1) was 120 months”). Second, beca use 16 18 U.S.C. § 92 4(c) is a less er included of fense of 18 U. S.C. 17 § 924(i)(1), t he district co urt erred by i mposing senten ces 18 on both. See, e.g. , Rutledge v. Un ited States , 517 U.S. 19 292, 306-07 (1 996). Consequ entially, we v acate the sent ence 20 and remand forre-sentencing . 21 * * * 2235

In light of th e foregoing, we affirm the c onviction but 1 remand for re- sentencing. 2