USA v. Li

• Court: District Court, D. New Hampshire
• Decided: August 19, 1997
• Docket: CR-97-58-B
• Status: Published

Opinion

USA v. Li CR-97-58-B 08/19/97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 97-58-01-B

Leslie Li, a/k/a Li Ouan Bin

O R D E R

Leslie Li moves to dismiss an indictment charging him with

one count of robbery in violation of the Hobbs Act, 18 U.S.C.A. §

1951 (1984). He alleges that the case lacks the interstate

commerce nexus necessary for jurisdiction. For the reasons set

forth below, I deny the motion.

I. BACKGROUND

The indictment in this case charges that Li violated the

Hobbs Act by robbing residents of Apartment 211, 32 Kessler Farm

Drive in Nashua, New Hampshire on March 16, 1997. The indictment

names two of the alleged victims, Yun-Sheng Wu and Lin Huog Shun,

and indicates that money and other property was taken against

their will by means of force, violence, and fear of injury. The

indictment tracks the language of the statute by indicating that

Li obstructed, delayed, or affected commerce by committing the

robbery, but gives no details as to what actions meet the

jurisdictional element of interstate commerce. II. DISCUSSION

Generally, an indictment is sufficient if it "contains the

elements of the offense charged and fairly informs a defendant of

the charge against which he must defend, and . . . enables him to

plead an acguittal or conviction in bar of future prosecutions

for the same offense." Hamlinq v. United States, 418 U.S. 87,

117 (1974); see also United States v. Serino, 835 F.2d 924, 929

(1st Cir. 1987). An indictment may track the language of the

statute, "but it must be accompanied with such a statement of the

facts and circumstances as will inform the accused of the

specific offense, coming under the general description, with

which he is charged." Hamlinq, 418 U.S. at 117 (internal

guotation and citation omitted); see also Fed. R. Grim. P.

7(c)(1) (the indictment "shall be a plain, concise and definite

written statement of the essential facts constituting the offense

charged . . .").

Li does not move to dismiss on the basis that the indictment

does not adeguately inform him of the charge or presents a double

jeopardy problem. Additionally, Li does not assert that the

government is legally reguired to plead the facts which comprise

the nexus to interstate commerce. See United States v.

2 Mavroules, 819 F. Supp 1109, 1116 (D. Mass. 1993) (Hobbs Act

indictment that defendant "did thereby obstruct, delay, and

affect interstate commerce" alleged sufficient nexus). Instead,

Li anticipates the evidence and argues that jurisdiction is

lacking because his alleged actions, even if proved by the

government, do not "affect commerce."1

At the appropriate time, I must determine whether the

government has offered sufficient evidence in support of its

allegation that Li obstructed, delayed, or affected interstate

commerce to permit the case to be submitted to the jury for a

decision. See, e.g.. United States v. McKenna, 889 F.2d 1168,

1171 (1st Cir. 1989). However, at this time, I reject Li's

argument as premature because I may not look beyond the face of

the indictment in judging its sufficiency prior to trial. See

United States v. Sampson, 371 U.S. 75, 77 (19 62); United States

1 The parties dispute the standard that applies following the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 (1995). See United States v. Bolton, 68 F.3d 396, 399 (10th Cir. 1995) (Hobbs Act not affected by Lopez and applying "de minimus" effect on commerce test), cert, denied, 116 S. C t . 966 (1996); United States v. Harrington, 108 F.3d 1460, 1465 (D.C. Cir. 1997) (Lopez does not reguire Hobbs Act prosecution to demonstrate substantial effect on interstate commerce); see also United States v. McKenna, 889 F.2d 1168, 1171-72 (pre-Lopez case applying de minimus standard). Because Li's motion is premature, I need not address this guestion.

3 v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992); United States v.

Flores, 855 F. Supp. 638, 643 (S.D.N.Y. 1994) ("In deciding a

motion to dismiss an indictment . . . the question is not whether

the government will be able to prove all the elements of a Hobbs

Act claim, but only whether it has sufficiently alleged those

elements in the indictment."). Li may renew his argument after

the government has presented its evidence in support of the

charge. Harrington, 108 F.3d at 1465 (affirming denial of

judgment of acquittal regarding interstate commerce element of

Hobbs Act prosecution); United States v. Collins, 40 F.3d 95, 101

(5th Cir. 1994) (reversing conviction because evidence

insufficient on interstate commerce nexus), cert, denied, 115 S.

C t . 1986 (1995) .

III. CONCLUSION

Because I find that the indictment is valid on its face, I

deny Li's motion to dismiss the indictment (document no. 13).2

2 Additionally, I deny Li's motion for a bill of particulars (doc. no. 11). A motion for a bill of particulars is within the court's discretion. Fed. R. Crim. P. 7(c). Li has already demonstrated a potentially viable theory of why the government cannot sustain its nexus requirement. Therefore Li can adequately prepare a defense and will not be surprised at trial. The information Li requests does not impact double

4 SO ORDERED.

Paul Barbadoro United States District Judge

August 19, 1997

cc: Clyde R. W. Garrigan, Esq., AUSA M. Kristin Spath, Esq. United States Marshal United States Probation

jeopardy concerns. In its opposition to the motion to dismiss, the government has provided numerous police reports which detail the alleged interstate nexus, and the government has argued in its opposition in detail a number of theories to satisfy that nexus. The government has exceeded its criminal discovery obligations. Therefore, a bill of particulars is not necessary. See United States v. Abreu, 952 F.2d 1458, 1469 (1st Cir. 1992).