17-786-cr
United States v. Harris

                            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
28th day of February, two thousand eighteen.

PRESENT:          BARRINGTON D. PARKER,
                  PETER W. HALL,
                  RAYMOND J. LOHIER, JR.,
                                    Circuit Judges.
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UNITED STATES OF AMERICA,

                           Plaintiff-Appellee,

                           v.                                                  No. 17-786-cr

JEREMY W. HARRIS,

                           Defendant-Appellant.


For Appellant:                                           John A. Kuchera, Waco, Texas.

For Appellee:                                            Monica J. Richards, Assistant United States
                                                         Attorney, for James P. Kennedy, Jr., United States
                                                         Attorney for the Western District of New York,
                                                         Buffalo, New York.
        Appeal from a judgment of the United States District Court for the Western District of New

York (Wolford, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Defendant Jeremy W. Harris (“Harris”) appeals from the judgment of the district court

convicting him, after pleading guilty pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C)

plea agreement, of one count of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).          On

appeal Harris argues that the district court lacked subject matter jurisdiction in his case because

the Information charging him with a violation of 18 U.S.C. § 1951 does not allege that his conduct

had a substantial effect on interstate commerce.          Likewise, Harris claims that there are

insufficient facts to support his guilty plea because the theft of a can of beer and a package of

cigarettes from a 7-Eleven convenience store does not have a substantial effect on interstate

commerce.

        We review the sufficiency of a charging instrument de novo.     United States v. Geibel, 369

F.3d 682, 698 (2d Cir. 2004).     When, as in this case, the defendant fails to object to a purported

Rule 11 violation before the district court, we review for plain error. United States v. Youngs,

687 F.3d 56, 59 (2d Cir. 2012). In so doing, we assume the parties’ familiarity with the facts and

record of the prior proceedings, which we reference only as necessary to explain our decision to

affirm the district court’s decision.

        I.      The Sufficiency of the Information

        “In order to sustain a challenge to the district court’s jurisdiction, the defendant who has

pleaded guilty must establish that the face of the [charging instrument] discloses that the count or



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counts to which he pleaded guilty failed to charge a federal offense.” Hayle v. United States, 815

F.2d 879, 881 (2d Cir. 1987).    Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires

that an information contain a “plain, concise, and definite written statement of the essential facts

constituting the offense charged.”     In a Hobbs Act prosecution, we do not require that an

information “specify the precise nature of the effect upon interstate commerce that the government

intends to prove at trial.” United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998).    Rather, a

charging instrument is sufficient so long as it (1) “contains the elements of the offense charged

and fairly informs a defendant of the charge against which he must defend” and (2) “enables him

to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling

v. United States, 418 U.S. 87, 117 (1974).

       Here, the Information specifies that Harris robbed a 7-Eleven on August 19, 2015.        The

Information alleges that Harris “did unlawfully obstruct, delay and affect, and attempt to obstruct,

delay and affect, commerce” by robbery, in violation of 18 U.S.C. § 1951.          The Information

further specifies that Harris’s crime involved theft of commercial goods from a commercial

establishment.    The Information, therefore, was sufficient to provide the district court subject

matter jurisdiction because it contains the essential elements of a Hobbs Act robbery and contains

enough detail to enable Harris to prepare for his defense and to bar future prosecutions for the

same conduct.

       II.       Rule 11 Violation

       Harris claims that there were insufficient facts to support his guilty plea because the theft

of a beer and a package of cigarettes from a 7-Eleven does not have a substantial effect on




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interstate commerce.1    In his view, if his crime “comes within the ambit of the Hobbs Act, then

the Hobbs Act has completely swallowed every local robbery in America.”        Appellant’s Br. at

17.

         The Hobbs Act makes it unlawful “in any way or degree” to obstruct, delay, or affect

“commerce or the movement of any article or commodity in commerce, by robbery or extortion .

. . .”   18 U.S.C. § 1951(a).   In a Hobbs Act prosecution, the requirement that the robbery affect

interstate commerce is an element of the offense charged and jurisdictionally “critical” because

federal jurisdiction rests on interference with interstate commerce. Stirone v. United States, 361

U.S. 212, 218 (1960). Importantly, however, the government’s burden in proving a nexus to

interstate commerce is minimal.     United States v. Shareef, 190 F.3d 71, 75 (2d Cir. 1999). The

Hobbs Act “regulates activities which, in the aggregate, have a substantial effect on interstate

commerce; hence, the ‘de minimis character of individual instances arising under [the] statute is

of no consequence.’” United States v. Elias, 285 F.3d 183, 188 (2d Cir. 2002) (quoting United

States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997)).   Indeed, the government may establish an

interstate nexus by introducing evidence that the robbery was of a business that purchases

commodities that travel “in interstate commerce.” United States v. Jones, 30 F.3d 276, 285 (2d

Cir. 1994). Likewise, we have held that the robbery of a local enterprise may affect interstate

commerce “if the robbery impairs the ability of the local enterprise to acquire—whether from out-

of-state or in-state suppliers—goods originating out-of-state.” Elias, 285 F.3d at 189.




1
  In entering into the Rule 11(c)(1)(C) plea agreement, Harris agreed to waive his right to appeal
or collaterally attack his sentence. This waiver does not affect our Rule 11 analysis because we
do not strictly enforce appeal waivers where the defendant alleges an insufficient factual basis for
the plea. United States v. Adams, 448 F.3d 492, 497 (2d Cir. 2006).

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         In this case, the factual basis supporting Harris’s plea demonstrates that his crime affected

interstate commerce.     In pleading guilty, Harris accepted that he stole a can of beer and a package

of cigarettes from a 7-Eleven convenience store. He agreed that 7-Eleven operates stores all over

the country and that 7-Eleven purchases goods to stock its shelves from vendors located both

within and outside of New York. On these facts, the government established a sufficient nexus

between Harris’s crime and interstate commerce.

         We have considered Harris’s remaining arguments on appeal and find them to be without

merit.   We AFFIRM the judgment of the district court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk of Court




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