United States of America v. Osvaldo Rodríguez-Casiano

Of the United States Court of Appeals for the Federal *
Court, sitting by designation.
United States Court of Appeals
For the First Circuit
No. 04-1037
UNITED STATES OF AMERICA,
Appellee,
v.
OSVALDO RODRÍGUEZ-CASIANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Dyk, and Howard, Circuit Judges. *
Raymond Sanchez Maceira, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, was on brief, for
appellee.
October 4, 2005

-- 1 of 6 --

-2-
HOWARD, Circuit Judge. In October 2001, a federal grand
jury sitting in Puerto Rico returned a six-count indictment against
Osvaldo Rodríguez-Casiano for his involvement in a pair of
robberies of the homes of two local businessmen. Three counts
charged Casiano with violating the Hobbs Act, 18 U.S.C. § 1951(a),
and three counts charged him with the unlawful possession of a
firearm in relation to a federal crime of violence (i.e.,
violating the Hobbs Act), 18 U.S.C. § 924(c). In October 2002, a
jury convicted Casiano on all counts. For each conviction, the
government was required to prove beyond a reasonable doubt that the
robberies affected interstate commerce. On appeal, Casiano
contends that the government failed to do so. We affirm.
We present the facts in the light most favorable to the
verdict. See United States v. Capozzi, 347 F.3d 327, 328 (1st Cir.
2003). Casiano was a member of a six-person conspiracy to rob the
homes of two local businessmen. One of the homes belonged to
Orlando Ortiz-Bonilla, the owner of Ferretería Ouayabal, a hardware
store located in Villalba, Puerto Rico. The other belonged to
Antonio Rivera-Lopez, the owner of a gas company called Rivera Gas,
which also was located in Villalba. There was evidence that both
businesses engaged in interstate commerce as much of their
inventory was procured from mainland United States suppliers.
On the morning of March 15, 2001, Casiano and his co-
conspirators broke into Bonilla's home. Bonilla was at the

-- 2 of 6 --

-3-
hardware store at the time of the robbery, but his wife was at
home. The conspirators tied her up and stole $30,000 from the
house. The stolen money was part of the hardware store's assets
and was earmarked to pay the store's bills.
On the morning of June 1, 2001, Casiano and the other
conspirators broke into Rivera-Lopez's house. Rivera-Lopez was
home at the time of the robbery. The conspirators held a gun to
his head and asked him where the money was located. He directed
them to a briefcase which he used for his business. The
conspirators took the briefcase and some jewelry.
The briefcase contained almost $6,000 in Rivera Gas
receipts. Rivera-Lopez testified that he planned to use the money
to provide a service for certain clients whereby he would cash
their social security checks and then use the proceeds from these
checks to pay his suppliers.
At the conclusion of the all of the testimony, Casiano
filed a motion for a judgment of acquittal on the ground that the
government failed to prove beyond a reasonable doubt that the
robberies affected interstate commerce. See Fed R. Crim P. 29. He
asserted that merely showing that business proceeds were stolen
from a private home is insufficient to establish the requisite
nexus with interstate commerce. The district court denied the
motion.

-- 3 of 6 --

A de minimis effect on interstate commerce is also an element 1
of the firearm counts because the Hobbs Act is the predicate crime
of violence for these offenses. See United States v. Wang, 222
F.3d 234, 240-41 (6th Cir. 2000).
-4-
Having filed a Rule 29 motion at the close of the
evidence, Casiano has preserved his sufficiency challenge. See
United States v. Van Horn, 277 F.3d 48, 54 (1st Cir. 2002). We
consider his claim de novo, surveying the evidence in the light
most favorable to the verdict. See United States v. Sebaggala, 256
F.3d 59, 63 (1st Cir. 2001). "The test is whether the evidence,
construed favorably to the government, permitted rational jurors to
conclude, beyond a reasonable doubt, that [Casiano] was guilty as
charged." Id.
The Hobbs Act prohibits, inter alia, participating in a
robbery that "in any way or degree obstructs, delays or affects
commerce." 18 U.S.C. § 1951(a). The scope of the Hobbs Act
extends as far as Congress's power to regulate conduct under the
Commerce Clause. See Stirone v. United States, 361 U.S. 212, 215
(1960). The commerce element of the offense is met if the conduct
in question creates "a realistic probability of a de minimis effect
on interstate commerce." Capozzi, 347 F.3d at 335 (quoting United 1
States v. Butt, 955 F.2d 77, 80 (1st Cir. 1992)).
Casiano contends that a de minimis effect cannot be shown
where the robbery is of an individual instead of a business. There
is no merit to this contention. See United States v. McCormack,

-- 4 of 6 --

-5-
371 F.3d 22, 28-29 (1st Cir. 2004); United States v. Nguyen, 246
F.3d 52, 54-55 (1st Cir. 2001). Nevertheless, because "criminal
acts that are directed at individuals rather than businesses" often
have a less obvious effect on interstate commerce, we are more
cautious in our application of the de minimis standard where the
robbery was of a person or residence. See McCormack, 371 F.3d at
28.
The government sought to prove the effect on interstate
commerce by demonstrating that the robberies depleted the assets of
the hardware store and the gas company, thereby reducing the funds
available to these businesses to participate in interstate
commerce. This is a common method for proving the commerce element
of a Hobbs Act offense. See, e.g., Capozzi, 347 F.3d at 337;
Nguyen, 246 F.3d at 54.
The proof presented by the government was adequate for
the jury to find beyond a reasonable doubt that the robberies
depleted each business's assets. Bonilla provided uncontradicted
testimony that the $30,000 stolen from his house was the property
of the hardware store and was to be used to pay the company's
invoices. Rivera-Lopez provided similar testimony that the $6,000
taken from the briefcase belonged to his company and was to be used
to provide a check cashing service to clients, with the proceeds of
the checks being used to pay the bills of Rivera Gas. This is all
that is required to show a de minimis effect on interstate commerce

-- 5 of 6 --

At oral argument, Casiano suggested that the amount of monies 2
stolen was not sufficiently large to establish a de minimis effect
on commerce. But we recently affirmed a Hobbs Act conviction based
on the theft of a far smaller sum. See United States v. Brennick,
405 F.3d 96, 100 (1st Cir. 2005) (stating that stealing $522 from
a large retail store was sufficient to support a Hobbs Act
conviction).
-6-
under a depletion-of-assets theory. See Capozzi, 347 F.3d at 337.
That the money was located at private residences when stolen does
not remove the robberies from the ambit of the Hobbs Act. See
United States v. Jamison, 299 F.3d 114, 121 (2d Cir. 2002)
(upholding a Hobbs Act conviction under a depletion-of-assets
theory based on the attempted robbery of an individual because the
money that was the subject of the robbery attempt belonged to two
businesses engaged in interstate commerce); Nguyen, 246 F.3d at 55
(upholding a Hobbs Act conviction where the defendant attempted to
rob an apartment to steal the assets of a business engaged in
interstate commerce).2
Affirmed.

-- 6 of 6 --