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The great divide over the federalization of violent crimes grew larger at the 5th U.S. Circuit Court of Appeals recently with the release of an evenly split en banc opinion affirming the conviction of a man sentenced to 97 years in prison for armed robbery of four convenience stores. Without comment, half of the circuit judges declined to overturn the sentence of James McFarland, who was convicted under the Hobbs Act, a federal law aimed at criminals who interfere with interstate commerce. USA v. McFarland, decided on Oct. 28 by an 8-8 court, contained three separate concurring opinions. On rehearing, appeals courts are not allowed to overturn prior rulings by an even vote. McFarland had appealed his sentence, arguing that federal officials overstepped their bounds by using the Hobbs Act to prosecute him — he could have been sentenced to as little as five years if his case was handled in the state system. In a lengthy dissent, the other half of the court questioned the propriety of using the Hobbs Act, a law originally passed in 1946 to crack down on racketeers trying to obstruct interstate commerce. The act was aimed at regulating interstate commerce; armed robbery is usually prosecuted by states and not widely considered to have an impact on commercial activity, according to the dissent. Prosecutors charged McFarland under the Hobbs Act because the items he stole from the stores in 1998 came from outside Texas, according to the opinion. “Robbery is the ‘activity’ regulated by the Hobbs Act, and we conclude that for these purposes robbery cannot be considered a commercial activity,” wrote Senior 5th Circuit Judge Will Garwood in dissent. “Robbery does have an economic impact. But so, too, do … all thefts of any kind from any victim… .” “The present case does not involve the targeting of any particular interstate market or activity,” Garwood continued in the dissent, which was joined by Judges E. Grady Jolly, Patrick E. Higginbotham, Edith H. Jones, Jerry E. Smith, Rhesa H. Barksdale, Harold R. DeMoss Jr. and Edith Brown Clement. Judges W. Eugene Davis, Jacques L. Wiener Jr., Emilio M. Garza, Fortunato “Pete” Benavides, Carl E. Stewart, Robert M. Parker, James L. Dennis and Chief Judge Carolyn Dineen King voted to affirm the conviction. Garwood sat on the original three-member panel that reluctantly affirmed McFarland’s conviction last year by pointing to a nearly identical case — U.S. v. Hickman — a 1999 en banc decision in which the 5th Circuit affirmed a Hobbs Act conviction by a tie vote. Stephen Baer, a principal in Dallas’ Baer & Associates who represents McFarland, declines comment on the decision, but says he plans to appeal it to the U.S. Supreme Court. Michael Dreeben, an attorney with the U.S. Department of Justice who represented the government at the 5th Circuit, declines to comment on the ruling. GOVERNMENT’S REACH The debate over the Hobbs Act garners even more interest now because federal prosecutors are considering using the act as a way to charge the Washington, D.C.-area sniper suspects in federal court, one criminal defense attorney says. The Hobbs Act also allows the federal government to seek the death penalty in murders where killers try to extort money. Sniper suspects John Allen Muhammad and John Lee Malvo are alleged to have left a note at one of the murder scenes demanding $10 million. Some criminal defense lawyers say the 5th Circuit’s split over the use of the Hobbs Act to prosecute crimes traditionally handled by state prosecutors indicates that federal prosecutors’ use of the act may be on shaky ground. “It sure struck me as a potential problem for that prosecution up there,” says Mike Gibson, a partner in Dallas’ Burleson, Pate & Gibson. “But it shows clearly, in my view, that there’s a growing feeling that this commerce tie needs to be stronger than what it says in the law.” The 5th Circuit is where the issue is really boiling over, and it only may be a matter of time before the conservative court overturns a Hobbs Act conviction, says Neil McCabe, a South Texas College of Law professor who teaches criminal law. “There are some [circuits] that have conservative hatred of federal power that could go that way if it were presented,” McCabe says. “I think the 5th Circuit is a circuit that [people] pay attention to, and the feds might want to think about it.” The split at the 5th Circuit over the Hobbs Act is between judges who feel bound to the prior rulings of the court and those who believe the federal government is overstepping its authority, says federal appellate lawyer David Schenck, a partner in Dallas’ Hughes & Luce. “This is the most basic question any federal court will ever have to decide,” Schenck says. “What is the reach of the federal government?” The case is one that merits consideration by the U.S. Supreme Court, Schenck says. “It’s got to go to the U.S. Supreme Court. It’s obvious that some of the stuff the dissent is saying is right,” Schenck says. “It can’t be that shoplifting a candy bar affects interstate commerce.” David Finn, a former Assistant U.S. Attorney in Dallas who has prosecuted criminals under the Hobbs Act, says such prosecutions are reserved for serious offenders who use guns during crime sprees. Finn once obtained a 135-year sentence for an armed robber who targeted dry cleaning businesses. Finn says he prosecuted the case under the Hobbs Act because the cleaning solution the businesses used were purchased from an out-of-state vendor. Federal prosecutors often use the Hobbs Act to prosecute spree criminals because the sentences in the federal system tend to be longer than in the state system — especially if the offender lacks a serious criminal history, says Finn, now a partner in Dallas’ Milner & Finn. “For the last 10 years there has been quite a bit of discussion about using the law this way,” says Finn, who is now in private practice. “The question is not whether it’s legal. The question is, should we be doing it this way?” While the dissenters in McFarland ponder the reasonableness of the Hobbs Act’s broad reach, it’s likely that federal prosecutors will ease up on the use of the law anyway, says Paul Coggins, a former U.S. Attorney for the Northern District of Texas. Business has picked up in white-collar crime and other offenses that are traditionally handled by federal prosecutors, says Coggins, now a partner in the Dallas office of Fish & Richardson. “The dissent could end up winning the day eventually,” Coggins says. “Because U.S. Attorney’s Offices are going to have to pare back and focus on white-collar crime and terrorism.”

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