Sunday, July 19, 2020

Case o’ The Week: J/x Jinx - Luong and "interstate commerce" proof, Hobbs Act robberies

Ninth denies Perry Mason surprise.



United States v. Luong, 2020 WL 4033847 (9th Cir. July 17, 2020), decision available here.


Players: Decision by visiting District Judge Smith, joined by Judges Rawlinson and Bybee.

  Hard fought appeal by former ND Cal AFPD Ned Smock, and ND Cal AFPDs John Paul Reichmuth and Robin Packel.


Facts: It was effectively conceded at the Hobbs Act trial that Luong had robbed a man at gun point. Id. at *1. Luong, who lived in the Bay Area, had lured the Bay Area victim to a BART station through a car ad placed on a Bay Area Craigslist post. Id. Craigslist is a local internet service, although it does link to sales of similar items in adjacent states. Id

  The defense only contested the interstate commerce element at trial: the jury hung on the Hobbs Act and 924(c) counts. Id. Luong was convicted at retrial.


Issue(s): Was there sufficient evidence of interstate commerce to satisfy the Hobbs Act jurisdictional requirement?


Held: “Even if we view Craigslist as facilitating only local transactions, the interstate-commerce jurisdictional nexus is still met here. The Supreme Court’s opinion in Taylor v. United States, 136 S. Ct. 2074 (2016), guides our analysis. In Taylor, the Supreme Court concluded that, because Congress has the authority to regulate the national marijuana market, including the purely intrastate production, possession, and sale of marijuana, based on its aggregate effect on interstate commerce, so too may Congress regulate intrastate marijuana theft under the Hobbs Act. Id. at 2077. While the Court in Taylor limited its holding ‘to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds[,]’ and declined to ‘resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted[,]’ id. at 2082, the logic employed in Taylor readily applies to the facts of this case. Therefore, the Hobbs Act’s interstate-commerce element is satisfied in cases like this one, where the government demonstrates that a person used a commercial website to advertise a commercial transaction in order to facilitate a robbery.” Id. at *5. 


Of Note: Luong only contested the jurisdictional element at trial, and objected to evidence related to that elementId. at *13. The district court nonetheless denied acceptance of responsibility at sentencing! In a silver lining to this dark cloud of a case, the Ninth reverses and remands for a resentencing. Defense counsel, explains the Ninth, cannot be expected to sit on their hands and tolerate government surprise witnesses “a la Perry Mason.” Id. at *14. 

    Luong is the rare acknowledgement that “acceptance of responsibility” should not be used as a hammer to punish defendants for going to trial on jurisdictional elements: a welcome addition to the law on that guideline. 


How to Use: On appeal, Luong forcibly argued that the Hobbs Act statute has a different and more-demanding interstate commerce requirement than other criminal statutes, that are satisfied by mere “use” of interstate commerce. Id. at *6. 

  The Ninth dodges this issue, holding that Luong’s use of Craigslist was sufficient to satisfy the Hobbs Act requirement, even if it is more stringent. Id.  

  This section of the decision is worth a very close read for Hobbs Act cases: even visiting DJ Smith concedes in Luong that there are cases where a robber’s use of the internet would be so minimal as to fall short of the jurisdictional requirement.


For Further Reading: COVID-19 now rages through Santa Rita Jail. The huge facility houses almost all federal pretrial inmates in the Northern District of California. The jail now has over 100 inmates who have recently tested positive, and over 40 deputy sheriffs. See article here. At least forty of these COVID-positive inmates are feds: a disproportionately high figure, considering the relative population of federal inmates in the jail. 

  Although county inmate populations have been voluntarily reduced in the jail, the federal population has again risen to pre-pandemic high levels. 

  This new crisis cries out for the U.S. Attorney’s Office to reduce the numbers of federal inmates. Time for a NorCal Bail Summit.



Image of Perry Mason from


Steven Kalar, Federal Public Defender, N.D. Cal. Website at




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