18-198-cr
United States v. Lowery


                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT


                                       SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 9th day of April, two thousand nineteen.

PRESENT:            JOHN M. WALKER, JR.,
                    JOSÉ A. CABRANES,
                    SUSAN L. CARNEY,
                                 Circuit Judges.



UNITED STATES OF AMERICA,

                           Appellee,                            18-198-cr

                           v.

DARIUS LOWERY,

                           Defendant-Appellant.*




     *
         The Clerk of Court is directed to amend the caption as shown above.

                                                    1
FOR APPELLEE:                                              Susan Corkery, Andrew D. Grubin,
                                                           Assistant United States Attorneys, for
                                                           Richard P. Donoghue, United States
                                                           Attorney, Eastern District of New York,
                                                           Brooklyn, NY.

FOR DEFENDANT-APPELLANT:                                   Anthony M. LaPinta, Reynolds, Caronia,
                                                           Gianelli & LaPinta, P.C., Hauppauge, NY.



       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Arthur D. Spatt, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the January 12, 2018 judgment of the District Court be and
hereby is AFFIRMED.

        Defendant-Appellant Darius Lowery (“Lowery”) appeals from his January 12, 2018
judgment of conviction following a jury trial in which he was convicted of interference with
commerce by robbery, conspiracy to interfere with commerce by robbery, (both in violation of 18
U.S.C. § 1951(a), i.e., “the Hobbs Act,”) and brandishing a firearm during a crime of violence (in
violation of 18 U.S.C. § 924(c)(1)(A)). On appeal, Lowery argues that the evidence was insufficient
to establish that the robbery affected interstate commerce, and thus challenges the validity of all
three convictions. We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.

         We review de novo a district court’s denial of a Federal Rule of Criminal Procedure 29(a)
motion based on claim of insufficient evidence. United States v. Celaj, 649 F.3d 162, 167 (2d Cir.
2011). Like the district court, we “credit every inference that could have been drawn in the
government’s favor, and we must view the evidence as a whole,” and uphold a conviction if
“any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. Here, Lowery argues that the evidence of an effect on interstate commerce was
insufficient.1 In particular, he argues that the victim’s testimony established only a “present tense”
interstate commerce effect, and that the two-year timeline between the crime and the testimony was
“too attenuated” for the jury to infer interstate effects based on that testimony. Br. Appellant 13-14.




   1
     There is no dispute that the jury was properly instructed concerning the interstate commerce
requirement.

                                                   2
         We reject Lowery’s argument. Although the Government bears the burden of establishing a
nexus to interstate commerce as an element of Hobbs Act robbery, that nexus requirement “is
minimal.” United States v. Elias, 285 F.3d 183, 188 (2d Cir. 2002). In fact, we will uphold a Hobbs Act
conviction if the defendant’s conduct “produces any interference with or effect upon interstate
commerce, whether slight, subtle or even potential.” United States v. Perrotta, 313 F.3d 33, 36 (2d Cir.
2002); see also United States v. Parkes, 497 F.3d 220, 230 (2d Cir. 2007) (“[T]he required showing of an
effect on interstate commerce is de minimis.”). Moreover, we have explained that “[t]he required
evidence of an effect need not take any particular form or be offered in any particular quantum—
direct, indirect, or circumstantial evidence could suffice. It is a case-by-case inquiry.” Id. at 231 n.11.

         Here, the Government has met this low bar. The victim testified that some of the jewelry
sold in his jewelry store is purchased in California, that some of his gold comes from Italy, and that
two bags of gold were among the items stolen. App’x 83. Based on this testimony as well as
common knowledge about the basic facts of the gold market, the jury could infer that some of the
stolen items traveled in interstate commerce. See e.g., United States v. Gomez, 580 F.3d 94, 102 (2d Cir.
2009) (holding that a “juror is surely capable of drawing the conclusion that a robbery undertaken
with the object of stealing from a drug dealer three kilos of cocaine . . . would have had at least the
required de minimus [sic] effect on interstate commerce”).

          Moreover, the victim also testified that he suffered $100,000 in losses and that these losses
impaired his ability to purchase additional items for sale. App’x 83. A rational trier of fact could thus
conclude that the robbery affected the victim’s subsequent interstate commercial activity. This too is
sufficient. Indeed, we have previously upheld a Hobbs Act conviction on the basis that “the victim .
. . [c]ustomarily obtains supplies through interstate commerce,” because “the diminution of the
victim’s resources impairs his purchasing power and may therefore be found to affect interstate
commerce for the purpose of the Hobbs Act.” United States v. Merolla, 523 F.2d 51, 54 (2d Cir. 1975).
Such are precisely the circumstances here.

                                            CONCLUSION

       We have reviewed all of the arguments raised by Lowery on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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