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Nos. 05-111 and 05-5412

In the Supreme Court of the United States

JOSEPH LEONE, PETITIONER

v.

UNITED STATES OF AMERICA

THOMAS URBAN, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
KATHLEEN A. FELTON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the district court committed reversible error in instructing the jury on the interstate-commerce element of the Hobbs Anti-Racketeering Act, 18 U.S.C. 1951(a).

In the Supreme Court of the United States

No. 05-111

JOSEPH LEONE, PETITIONER

v.

UNITED STATES OF AMERICA

No. 05-5412

THOMAS URBAN, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-55)1 is reported at 404 F.3d 754.

JURISDICTION

The judgment of the court of appeals was entered on April 20, 2005. The petitions for a writ of certiorari in both Nos. 05-111 and 05-5412 were filed on July 18, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

In an indictment filed in the United States District Court for the Eastern District of Pennsylvania, petition ers (along with six other individuals) were charged with racketeering, in violation of 18 U.S.C. 1962(c) (RICO), and multiple counts of extortion, in violation of the Hobbs Anti-Racketeering Act, 18 U.S.C. 1951(a) (Hobbs Act). Following a jury trial, all petitioners except Wil liam Jackson were convicted on the RICO count. In ad dition, petitioner Joseph Leone was convicted on nine counts of extortion (Counts 6-11, 13-15); petitioner Ger ald Mulderig was convicted on six counts of extortion (Counts 16, 18-22); petitioner Joseph O'Malley was con victed on eight counts of extortion (Counts 23-30); peti tioner James Smith was convicted on eight counts of extortion (Counts 41-48); petitioner Fred Tursi was convicted on seven counts of extortion (Counts 52-58); and petitioner Thomas Urban was convicted on eight counts of extortion (Counts 60-67). Petitioner William Jackson was acquitted on the RICO count and convicted on two counts of extortion (Counts 3 and 5).2

Petitioner O'Malley was sentenced to 30 months of imprisonment, to be followed by two years of supervised release, and was fined $7500. Petitioner Leone was sen tenced to 30 months of imprisonment, to be followed by three years of supervised release, and was fined $6000. Petitioner Mulderig was sentenced to 30 months of im prisonment, to be followed by three years of supervised release, and was fined $6000. Petitioner Tursi was sen tenced to 34 months of imprisonment, to be followed by three years of supervised release, and was fined $6000. Petitioner Urban was sentenced to 30 months of impris onment, to be followed by three years of supervised re lease. Petitioner Smith was sentenced to 30 months of imprisonment, to be followed by three years of super vised release, and was fined $6000. Petitioner Jackson was sentenced to five years of probation and was fined $10,000. The court of appeals affirmed petitioners' con victions but vacated their sentences and remanded for resentencing in accordance with United States v. Booker, 125 S. Ct. 738 (2005). See Pet. App. 1-55.

1. Petitioners were plumbing inspectors employed by the City of Philadelphia. They worked in the Con struction Services Department (CSD), a division of the Department of Licenses and Inspections (L&I Depart ment). Plumbing inspectors were required to be regis tered master plumbers and were expected to enforce the city plumbing code in order to ensure, inter alia, the safety of the city's drinking water. The inspectors cited violations of the plumbing code, issued stop work orders, and were empowered to revoke the license of any plumber who failed to comply with the plumbing code. Pet. App. 5; Gov't C.A. Br. 11.

In the late 1990s, several confidential sources re vealed to law enforcement authorities that plumbing inspectors were accepting monetary payments from plumbers whose work they had inspected or claimed to have inspected. One such source said that he had re ceived a cash "tip" of between $5 and $20 from 70%-80% of the plumbing contractors whose work he had in spected from 1992 to 1997, and that acceptance of such "tips" was commonplace among city plumbing inspec tors. Two other sources were plumbing contractors who said that they or their subcontractors had paid inspec tors on a number of occasions, and who identified "Tursi," "O'Donnell," and "Smith" as being among the inspectors involved. Based on that information, a court order was obtained authorizing the installation of hidden video cameras in two city vehicles used by certain in spectors. Videotapes showed petitioners Jackson, Le one, O'Malley, and Smith taking money from plumbers while conducting inspections, or sometimes taking money without performing any inspection at all. Various plumbers testified at petitioners' trial that they had made numerous payments to petitioners in order to en sure timely and favorable inspections and to prevent unfavorable treatment or harassment by inspectors. Pet. App. 5-7; Gov't C.A. Br. 12-18, 22-30, 25-26, 29-30.

Each plumbing inspector was required, at the time he was hired, "to sign an ethics statement acknowledg ing that he was not permitted to accept 'any offer, any gift, favor or service that might tend to influence' him in the discharge of his duties." Pet. App. 8. Every plumb ing inspector hired between 1980 and 2000 was told that it was against city policy for employees to accept cash in any amount at any time. Ibid. The secretive manner in which the plumbing inspectors accepted the payments supported the government's contention that the inspec tors knew the payments to be improper. Plumbers con cealed the payments in the pages of their work permits or folded the money and transferred it to inspectors in handshakes. Id. at 9.

2. The Hobbs Act provides that any person who "in any way or degree obstructs, delays, or affects com merce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or con spires so to do," shall be guilty of a federal crime. 18 U.S.C. 1951(a). In order to establish the interstate-com merce element of petitioners' offenses, the government introduced evidence that many of the large plumbing companies that made extortionate payments did busi ness in interstate commerce, performing jobs in New Jersey and Delaware as well as in Pennsylvania. Gov't C.A. Br. 96. In addition, plumbers who appeared as wit nesses testified that they purchased supplies from out side Pennsylvania. See Pet. App. 9. Many plumbers testified that they did not reduce their interstate pur chases as a result of the extortion, but some said that was because they passed the costs of the payoffs on to their customers. Ibid.; Gov't C.A. Br. 98 & n.16.

With respect to the interstate-commerce element of the Hobbs Act offense, the district court instructed the jury as follows:

The third element that the government must prove beyond a reasonable doubt is that the defen dant's conduct affected or could have affected inter state commerce. Affecting interstate commerce means any action which in any way interferes with, changes, or alters the movement or transportation or flow of goods, merchandise, money or other property in commerce between or among the states.

It is not necessary to prove that the defendants intended to obstruct, delay or interfere with inter state commerce or that the purpose of the money payment was to affect interstate commerce. Fur ther, you do not have to decide whether the effect on interstate commerce was harmful or beneficial to a particular business or to commerce in general. You do not even have to find that there was an actual ef fect on commerce. All that is necessary to prove this element is that the natural consequence of the ex tortion-of the money payment, potentially caused an effect on interstate commerce to any degree, how ever minimal or slight. Payment from a business engaged in interstate commerce satisfies the re quirement of an effect on interstate commerce. If the resources of a business are expended or dimin ished as a result of the payment of money, then inter state commerce is affected by such payment and may reduce the assets available for purchase of goods, services, or other things originating in other states.

Gov't C.A. Br. 108-109 n.18.

3. The court of appeals affirmed petitioners' convic tions. Pet. App. 1-55. Petitioners contended, inter alia, that the district court had erroneously instructed the jury on the interstate-commerce element of the Hobbs Act by stating that proof of a "potential" effect on com merce was sufficient for conviction. They also argued that the evidence on the interstate-commerce element was insufficient to support their convictions. Id. at 10. Petitioners' challenges to both the jury instructions and the sufficiency of the evidence were based in part on their contention "that the so-called 'depletion of assets' theory-whereby proof that a Hobbs Act violation de pletes the assets of a business engaged in interstate commerce conclusively establishes the effect on com merce requirement-was incorrectly applied here in light of the plumbers' testimony that the payments they made to [petitioners] did not in fact affect their ability to engage in interstate commerce." Id. at 12. The court of appeals rejected petitioners' challenges to both the jury instructions and the sufficiency of the evidence. Id. at 12-22.

The court of appeals first reviewed its decisions over the past 30 years, in which it had repeatedly approved the "depletion of assets" method of proving an effect on commerce under the Hobbs Act. See Pet. App. 13-17. The court noted the intent of Congress, in enacting the Hobbs Act, to exercise its full constitutional authority to penalize interference with interstate commerce. See id. at 15 (citing Stirone v. United States, 361 U.S. 212, 215 (1960)). Based on its review of prior decisions, the court of appeals found "little doubt that [the court's] prece dent supports the District Court's use of 'potential' ef fect and its formulation of the depletion of assets theory in the jury instructions." Id. at 17.

The court of appeals rejected petitioners' contention that this Court's decisions in United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000), required a different result. See Pet. App. 19-20. The court noted that it had "already rejected the argument that Lopez and its progeny require proof of a 'substan tial effect' on commerce in an individual case in order to show a Hobbs Act violation." Ibid. The court further explained that, so long as the cumulative impact on in terstate commerce of many Hobbs Act violations is sub stantial, the statute is a constitutional exercise of Con gress's Commerce Clause power, notwithstanding the de minimis effect on commerce of the defendant's conduct in an individual case. Id. at 20 (citing Lopez, 514 U.S. at 558-559).

The court of appeals also concluded that the evidence in this case was "more than sufficient" to show the re quired impact on commerce. Pet. App. 22. The court noted the "ample evidence that * * * each [petitioner] took payments from plumbers who were engaged in in terstate commerce, i.e., who purchased supplies made out-of-state." Ibid. The court of appeals also rejected numerous other challenges to petitioners' convictions, see id. at 22-54, but it vacated each petitioner's sentence and remanded for resentencing in accordance with this Court's decision in Booker, id. at 54-55.

ARGUMENT

Petitioners contend (05-111 Pet. 6-23; 05-5412 Pet. 7- 22) that the district court incorrectly instructed the jury on the interstate-commerce element of their Hobbs Act extortion offenses by allowing a potential effect on inter state commerce to suffice. They argue that conviction for a substantive Hobbs Act violation requires proof of an actual effect on commerce in the individual case. The court of appeals' decision approving the depletion-of- assets theory as a valid basis of showing that an extor tion affected interstate commerce is correct and consis tent with the holdings of this Court and of other circuits that have addressed the issue. Even if the question pre sented otherwise warranted this Court's review, this case would be an unsuitable vehicle to consider it be cause petitioners' own proposed jury instructions en dorsed the depletion-of-assets theory of Hobbs Act lia bility, and because any error in the instructions on that theory is harmless beyond a reasonable doubt. Further review is therefore not warranted.

1. Petitioners' claim that the jury instruction ap proved by the court of appeals is inconsistent with the text of the Hobbs Act lacks merit.

a. The Hobbs Act makes it a federal crime to com mit an act of extortion (or attempt or conspire to do so) that "in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce." 18 U.S.C. 1951(a). That broad jurisdic tional language demonstrates "a purpose to use all the constitutional power Congress has to punish interfer ence with interstate commerce by extortion, robbery or physical violence." Stirone, 361 U.S. at 215; see Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 408 (2003).

Both before and after this Court's decision in United States v. Lopez, 514 U.S. 549 (1995), the Hobbs Act has been uniformly construed to prohibit the illegal interfer ence in any manner whatever with interstate commerce, even when the effect of such interference or attempted interference is slight. As the Second Circuit has ex plained:

Our cases have long recognized that the jurisdic tional requirement of the Hobbs Act may be satisfied by a showing of a very slight effect on interstate commerce. * * *

* * * We now expressly hold that Lopez did not raise the jurisdictional hurdle for bringing a Hobbs Act prosecution. * * * [O]ur sister Circuits that have addressed this question have all so held.

United States v. Farrish, 122 F.3d 146, 148 (2d Cir. 1997) (brackets and internal quotation marks omitted), cert. denied, 522 U.S. 1118 (1998).

In keeping with that analysis, courts of appeals have consistently upheld Hobbs Act convictions where acts of robbery depleted the assets of commercial enterprises. See, e.g., United States v. Curtis, 344 F.3d 1057, 1070 (10th Cir. 2003) (robberies of stores and restaurants), cert. denied, 540 U.S. 1157 (2004); United States v. Gray, 260 F.3d 1267, 1272-1277 (11th Cir. 2001) (robbery of restaurant), cert. denied, 536 U.S. 963 (2002); United States v. Smith, 182 F.3d 452, 454, 456-457 (6th Cir. 1999) (robberies of grocery and party stores), cert. de nied, 530 U.S. 1206 (2000); United States v. Arena, 180 F.3d 380, 389-391 (2d Cir. 1999) (robbery of medical fa cilities), cert. denied, 531 U.S. 811 (2000); United States v. Vong, 171 F.3d 648, 654 (8th Cir. 1999) (robbery of jewelry stores); United States v. Hebert, 131 F.3d 514, 518, 520-524 (5th Cir. 1997) (robberies of bank, restau rant, and liquor stores), cert. denied, 523 U.S. 1101 (1998); United States v. Harrington, 108 F.3d 1460, 1468-1469 (D.C. Cir. 1997) (robbery of restaurant); United States v. Atcheson, 94 F.3d 1237, 1243 (9th Cir. 1996) (robbery of Automatic Teller Machine (ATM) cards and use of ATMs to withdraw cash), cert. denied, 519 U.S. 1156 (1997).

b. Contrary to petitioners' contention (05-111 Pet. 11-16; 05-5412 Pet. 11-15), the depletion-of-assets theory is fully consistent with the text of the Hobbs Act. This Court has long recognized that the broad language of the Act, which forbids extortion or robbery that "in any way or degree obstructs, delays, or affects commerce," 18 U.S.C. 1951(a), reflects Congress's intent to exercise the full scope of its power under the Commerce Clause. Stirone, 361 U.S. at 215. When robbery or extortion depletes the assets of a business entity, thereby dimin ishing its capacity to purchase goods or services in inter state markets, the criminal conduct is properly charac terized as "affect[ing]" commerce, whether or not the victimized enterprise is shown to have forgone any par ticular purchase. Indeed, even if it were undisputed in a particular case that the victimized business's purchas ing decisions were not altered by the loss of funds, the business would be required to account for that loss in some other manner-e.g., by passing the cost along to its customers through increased prices, or by accepting a diminution of its profits-and any such response would itself qualify as an effect on commerce.3

2. Petitioners' claim of a circuit conflict on the meaning of the Hobbs Act lacks merit and does not war rant review.

a. As the Third Circuit recognized, see Pet. App. 17- 19 n.3 (citing cases), the courts of appeals agree that the depletion-of-assets theory is a valid method of proving the interstate-commerce element of a Hobbs Act charge. The gravamen of that theory is that, if a commercial entity regularly makes purchases in interstate com merce, a jury may properly infer that reduction of the business's funds through robbery or extortion may re duce its capacity to engage in its usual interstate trans actions, thereby establishing the requisite effect on in terstate commerce, whether or not the proof at trial identifies any particular purchase that the business has forgone. See, e.g., United States v. Bailey, 227 F.3d 792, 798 (7th Cir. 2000) (under depletion-of-assets theory, "the government shows that commerce is affected when an enterprise, which either is actively engaged in inter state commerce or customarily purchases items in inter state commerce, has its assets depleted through extor tion, thereby curtailing the victim's potential as a pur chaser of such goods") (citations and internal quotation marks omitted).

Petitioners' claimed circuit conflict (see 05-111 Pet. 7-8; 05-5412 Pet. 8-9) on the sufficiency of a potential effect on commerce under the Hobbs Act is more seman tic than real. Those courts that have made statements suggesting that a potential effect on commerce is not sufficient have nevertheless endorsed the depletion-of- assets theory, and each of them has rendered other deci sions that support the proposition that proof of a poten tial impact on commerce will suffice.

Petitioners rely (05-111 Pet. 7; 05-5412 Pet. 8) on United States v. Williams, 308 F.3d 833, 837-838 (2002), in which the Eighth Circuit held that the district court had erred by instructing the jury that it could find the defendant guilty based on a probable or potential effect on commerce. The court in that case nevertheless af firmed the Hobbs Act conviction, finding the error harmless where uncontroverted evidence supported the conclusion that there were actual effects on commerce from the robbery of a taxicab driver. Id. at 838. In a prior case, moreover, the Eighth Circuit stated that, "[a]lthough a probability of affecting commerce is suffi cient in some cases, like extortion cases involving the depletion-of-assets theory, the probability must be real istic rather than merely speculative." United States v. Quigley, 53 F.3d 909, 910 (8th Cir. 1995). Thus, for cases like this one-extortion cases involving the depletion-of-assets theory-the Eighth Circuit has found a showing of a potential or probable effect on com merce sufficient to satisfy the statute. Any inconsis tency between the views expressed in Williams and Quigley is appropriately resolved by the Eighth Circuit rather than by this Court. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

Petitioners also rely (05-111 Pet. 8; 05-5412 Pet. 9) on the Sixth Circuit's statement in United States v. DiCarlantonio, 870 F.2d 1058, 1061, cert. denied, 493 U.S. 933 (1989), that "a substantive Hobbs Act violation requires an actual effect on interstate commerce." More recently, however, the Sixth Circuit has approved the depletion-of-assets theory, as well as the view that a "realistic probability" of an effect on commerce will suf fice. See United States v. Turner, 272 F.3d 380, 385 n.2 (2001) (government can establish the requisite de minimis effect on commerce by proving depletion of the victim's assets, thereby showing a reduction of the po tential interstate purchasing power of the business); United States v. Wang, 222 F.3d 234, 237 (6th Cir. 2000) (no requirement of actual effect on commerce; realistic probability of effect on commerce will satisfy Hobbs Act). Those more recent statements suggest that the Sixth Circuit would not disagree with the Third Circuit's disposition of this case. Here again, any tension among the Sixth Circuit's Hobbs Act cases is appropriately re solved by the court of appeals itself. Wisniewski, 353 U.S. at 902.

Petitioners also rely (05-111 Pet. 8; 05-5412 Pet. 8-9) on two decisions of the Eleventh Circuit. That court has stated that a potential impact is sufficient in attempt or conspiracy prosecutions, but that a substantive offense requires an "actual, de minimis" effect. United States v. Carcione, 272 F.3d 1297, 1300-1301 n.5 (11th Cir. 2001); see United States v. Le, 256 F.3d 1229, 1232 (11th Cir. 2001), cert. denied, 534 U.S. 1145 (2002). In other deci sions, however, the Eleventh Circuit has repeatedly ap proved the depletion-of-assets theory, and it has stated that the Hobbs Act was intended to protect commerce from effects that are "direct or indirect, actual or poten tial, beneficial or adverse." Gray, 260 F.3d at 1276; see United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000), cert. denied, 531 U.S. 1099 (2001); United States v. Kaplan, 171 F.3d 1351, 1357 (11th Cir.) (en banc), cert. denied, 528 U.S. 928 (1999). It is therefore far from clear that the Eleventh Circuit would disap prove the interstate-commerce instruction given at peti tioners' trial under the circumstances of this case.

b. Even if the nature of the commerce nexus re quired to establish criminal liability under the Hobbs Act otherwise warranted clarification by the Court, this case would provide an unsuitable vehicle for resolution of the interpretive question. In the district court, peti tioners did not request an instruction that the govern ment was required to prove an "actual" effect on inter state commerce, nor did they question the propriety of the depletion-of-assets theory. To the contrary, peti tioner O'Malley specifically requested an instruction stating that "[i]nterstate commerce is affected when an enterprise which purchases goods in interstate com merce has assets depleted by extortion. The govern ment needs to prove the realistic probability of asset depletion in order to prove an effect on interstate com merce." O'Malley C.A. Br. 38. Other petitioners joined in that request. See Jackson C.A. Br. 24, 26; Tursi C.A. Br. 56. Absent a contemporaneous request for the sort of interstate-commerce instruction that petitioners now argue should have been given, the question presented does not warrant this Court's review.

c. Even apart from the theory that the depletion of assets caused by the extortionate payments reduced the victimized plumbers' capacity to make interstate pur chases, the evidence at trial-which the jury necessarily accepted in finding petitioners guilty-establishes an alternative basis for finding the Hobbs Act's commerce element to be satisfied. "There was ample evidence at trial that plumbers paid inspectors in order to ensure timely and favorable inspections, and to prevent unfa vorable treatment or harassment by inspectors." Pet. App. 7-8 (footnote omitted). By making the unimpeded conduct of the plumbers' commercial activities contin gent on the extorted payments, petitioners "ob struct[ed]" and "affect[ed]" commerce within the mean ing of the Hobbs Act, even though the plumbers' submis sion to the extortionate scheme prevented more tangible disruption of their businesses. In Stirone, this Court addressed and approved a similar theory:

Had Rider's business been hindered or destroyed, interstate movements of sand to him would have slackened or stopped. The trial jury was entitled to find that commerce was saved from such a blockage by Rider's compliance with Stirone's coercive and illegal demands. It was to free commerce from such destructive burdens that the Hobbs Act was passed.

361 U.S. at 215.4 Accordingly, even if there were error in the jury instructions with respect to the depletion-of- assets theory, any such error was harmless beyond a reasonable doubt because the jury necessarily found facts supporting an alternative theory. Neder v. United States, 527 U.S. 1 (1999).5

3. Petitioners contend (05-111 Pet. 16; 05-5412 Pet. 15) that, as interpreted by the court of appeals, the Hobbs Act "effectively federalizes all extortion, no mat ter how local." Relying on Jones v. United States, 529 U.S. 848 (2000), petitioners argue (05-111 Pet. 16-22; 05- 5412 Pet. 15-21) that the Act should be more narrowly construed in order to avoid potential constitutional diffi culties. Petitioners' reliance on Jones is misplaced.

In Jones, this Court held that the federal arson stat ute, which prohibits damage or destruction by means of fire or explosive to "any building, vehicle, or other real or personal property used in interstate or foreign com merce or in any activity affecting interstate or foreign commerce," 18 U.S.C. 844(i), did not apply to the arson of a private, owner-occupied residence not used for any commercial purpose. 529 U.S. at 854-857. The Court recognized, however, that the arson statute broadly pro tects property used in a commercial activity. Id. at 855- 856. In contrast to the arson of a residence at issue in Jones, petitioners' extortion of commercial entities whose assets were used to purchase supplies in inter state commerce implicates the core concern that prompted Congress to enact the Hobbs Act. Nothing in Jones suggests that the Court should overturn its long standing broad interpretation of the Hobbs Act, see Stirone, supra, to avoid constitutional doubts. Nor do United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), see 05-111 Pet. 16; 05-5412 Pet. 16, suggest that Congress lacks power to punish financial crimes in which the victim is a com mercial actor. And, as the cases discussed above (see note 3, supra) make clear, acceptance of the depletion- of-assets theory has not led the courts of appeals to con strue the Hobbs Act as indiscriminately covering every act of extortion committed within this country.6

CONCLUSION

The petitions for a writ of certiorari should be de nied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
KATHLEEN A. FELTON
Attorney

OCTOBER 2005

1 All references to "Pet. App." are to the appendix to the petition for a writ of certiorari in No. 05-111.

2 Petitioner Leone was acquitted on one Hobbs Act count (Count 12); petitioner Mulderig was acquitted on one Hobbs Act count (Count 17); petitioner Tursi was acquitted on two Hobbs Act counts (Counts 50 and 51); and petitioner Urban was acquitted on one Hobbs Act count (Count 59).

3 Contrary to petitioners' contention (05-111 Pet. 15; 05-5412 Pet. 15), acceptance of the depletion-of-assets theory, and of potential impacts on interstate commerce as sufficient to establish the Hobbs Act's commerce nexus, does not render the Act's jurisdictional element a "nullity or mere surplusage." The courts of appeals that have endorsed the depletion-of-assets theory have nevertheless overturned Hobbs Act convictions, typically when the victim was an individual rather than a commercial entity, after finding that the impact on commerce was too attenuated or speculative to establish the Act's jurisdictional element. See United States v. Perrotta, 313 F.3d 33, 36- 40 (2d Cir. 2002) (reversing Hobbs Act conviction for extortion of individual where only commerce nexus was victim's employment by company engaged in interstate commerce); United States v. Peterson, 236 F.3d 848, 851-857 (7th Cir. 2001) (reversing Hobbs Act conviction for robbery of marijuana dealer in absence of showing that victim's drug business was interstate in nature); United States v. Wang, 222 F.3d 234, 237-240 (6th Cir. 2000) (reversing Hobbs Act conviction for robbery of individual in private home); United States v. Quigley, 53 F.3d 909, 910-911 (8th Cir. 1995) (reversing conviction for robbery of individuals on their way to purchase beer at a convenience store); United States v. Collins, 40 F.3d 95, 99-101 (5th Cir. 1994) (reversing Hobbs Act conviction for robbery of individual where only asserted commerce nexus was interference with victim's ability to attend a business meeting and make cellular phone calls), cert. denied, 514 U.S. 1121 (1995); United States v. Buffey, 899 F.2d 1402, 1403-1407 (4th Cir. 1990) (reversing Hobbs Act conviction for conspiracy to extort small amount of money from a wealthy individual).

4 As the Seventh Circuit recognized 30 years ago,

[a]n effective prohibition against blackmail must be broad enough to include the case in which the tribute is paid as well as the one in which a victim is harmed for refusing to submit. Since the payment would normally enable the business to continue without inter ruption, the inference is inescapable that Congress was as much concerned with the threatened impact of the prohibited conduct as with its actual effect.

United States v. Staszcuk, 517 F.2d 53, 57 (7th Cir.) (en banc) (Stevens, J.) (footnotes omitted), cert. denied, 423 U.S. 837 (1975); accord United States v. Rivera Rangel, 396 F.3d 476, 485 (1st Cir. 2005) (extortion had a "'realistic probability' of affecting interstate commerce because, had [the victim] refused to pay, [the defendant] may have caused his business to suffer and, in so doing, indirectly caused him to purchase fewer materials from the mainland United States").

5 Indeed, the alleged error would be harmless even under the dissent's theory in Neder. See 527 U.S. at 35 (Scalia, J., concurring in part and dissenting in part) ("Where the facts necessarily found by the jury * * * support the existence of the element omitted or misdescribed in the instruction, the omission or misdescription is harmless.").

6 Petitioners are also incorrect in contending (05-111 Pet. 21; 05-5412 Pet. 20) that the courts below created a mandatory presumption that relieves the government of actually proving the jurisdictional element. The district court instructed the jury that the depletion of assets of a business engaged in interstate commerce would satisfy the Hobbs Act's jurisdictional element (Pet. App. 11a), but that instruction did not relieve the jury of finding an essential element of the crime. The government was required to prove that the victimized businesses were engaged in interstate commerce or purchased supplies that came from interstate commerce, and that the assets of those businesses were depleted by the extortionate payments. It is well settled that the trial court does not invade the province of the jury by instructing it that certain facts, if proved, would satisfy the interstate-commerce element. Such an instruction is consistent with the fundamental rule that the court instructs on the law and the jury decides the facts. See United States v. Miles, 122 F.3d 235, 239-240 (5th Cir. 1997), cert. denied, 523 U.S. 1011 (1998); United States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996), cert. denied, 520 U.S. 1160 (1997); United States v. O'Malley, 796 F.2d 891, 897-898 (7th Cir. 1986).