Interpreting the Constitution from Inside theJury Box: Affecting Interstate Commerceas an Element of the Crime

I. Introduction On October 29, 1993, Charles Parker, Jr. entered a Payless Shoe Store in Fort Worth, Texas.2 Curiously, Parker did not browse through the racks of discounted shoes; he had something else on his mind.3 The store's cash register contained $136 - money that Parker found and stuffed into his pocket.4 Over the following two weeks, Parker helped himself to cash in five other store robberies and, including the Payless heist, stole a total of $459.5 Parker's six thefts were less than legendary; they were garden variety robberies that occur each day in every city.6 Unlike other petty criminals, however, Parker was not prosecuted for robbery under state law.' Instead, on January 11,1994,8 a grand jury summoned the resources and power of the federal government and indicted Parker on six counts of violating a federal statute - the Hobbs Act.9 At Parker's two-day trial, federal Judge John McBryde instructed the jury that the Hobbs Act" is a federal criminal statute consisting of two elements: ( 1 ) the commission of a typical robbery or extortion and (2) a resulting effect on interstate commerce." The Government proved the first necessary element to the jury's satisfaction, but its theory of the second element was more attenuated: Parker's targeted stores routinely deposited their proceeds in Texas banks each week; those banks in turn wired the stores' deposits to accounts with banks located in other states.12 By stealing money from Fort Worth stores, the Government argued, Parker prevented the stores from transferring funds to banks outside of Texas; thus, the insignificant robberies "affected interstate commerce."'3 The jury returned a guilty verdict for five counts of federal Hobbs Act violations, and Parker received a sentence of 430 months - almost 36 years in federal prison - for stealing $59.(14) Parker appealed his conviction.15 He claimed that the United States Constitution's Fifth and Sixth Amendments establish that the criminal jury alone may determine whether a defendant is ultimately guilty of a crime.'6 Parker argued that Judge McBryde had impermissibly removed the Hobbs Act's interstate commerce element from the jury by instructing that the jury was merely to decide whether the robbed stores routinely made deposits that were wired to banks in other states." The judge summarily instructed the jury that those facts, if true, would prove the effect on interstate commerce necessary for a Hobbs Act conviction.18 A Fifth Circuit panel, citing the recent Supreme Court opinion in United States v. Gaudin,,19 agreed with Parker that the instructions were improper.20 Although the instructions correctly asked the jury to determine factual questions concerning the interstate bank transfers, the judge erroneously required the jury automatically to find an effect on interstate commerce once those factual allegations were deemed true.2' Sitting en banc, however, the Fifth Circuit reversed and announced without explanation that the jury instructions were not erroneous.zz Thus, Parker's conviction stands on a jury instruction that denied the jury the power to decide whether his robberies did indeed "affect interstate commerce" so as to justify his Hobbs Act conviction.23 Parker's story is not unique. Congress increasingly includes in federal criminal statutes the element that Parker's judge removed from the jury's control - the defendant's effect on interstate commerce;24 moreover, these federal criminal statutes are proliferating.25 As the number of statutes grows and jury instructions on the interstate commerce elements of those crimes continue to remove elements from the jury, courts will undermine the right to jury trial more frequently.26 Parker's story does not raise concerns about only the Constitution's Fifth and Sixth Amendment protections; it also presents an issue about Congress's power to enact federal crimes.2' As a matter of constitutional law, to make simple robbery a federal crime, Congress had to include the affecting interstate commerce element in its definition of the crime. …