United States District Court, N.D. Georgia, Atlanta Division
REPORT AND RECOMMENDATION
E. CLAYTON SCOFIELD, III, Magistrate Judge.
Matters Before the Court
This criminal action is before the Court on the Defendant's preliminary motion to dismiss the indictment, [Doc. 26], and Defendant's motion to dismiss Count Nine of the indictment on the grounds of multiplicity. [Doc. 27]. The motions are fully briefed and ready for a report and recommendation to the district judge.
The Preliminary Motion to Dismiss Indictment
A. The Issues
In the preliminary motion to dismiss the indictment, Defendant submits that the transactions that form the basis for the charges of conspiracy to attempt to distribute cocaine (Count Nine); attempt to distribute cocaine, on or about November 5, 2012, (Count Ten); attempt to interfere with commerce by extortion, on or about November 5, 2012, (Count Eleven); attempt to distribute cocaine, on or about December 7, 2012, (Count Twelve); and attempt to interfere with commerce by extortion, on or about December 7, 2012, (Count Thirteen), were merely staged transactions that did not involve any actual drugs. Defendant argues that, as a consequence, there was no actual or potential effect on interstate commerce necessary to sustain jurisdiction over these counts. [Doc. 26 at 3-5].
The government responds by citing United States v. Holland, 503 F.Appx. 737, 743 (11th Cir. 2013) (per curiam), arguing that the interstate nexus is satisfied by evidence of the potential impact on interstate commerce recognized even where the intended victims and drugs were fictitious and the transactions were pretenses. [Doc. 77 at 2]. The government also cites United States v. Verbitskaya , 406 F.3d 1324, 1325 (11th Cir. 2005); United States v. Jubiel, 377 F.Appx. 925, 930 (11th Cir. 2010) (per curiam); United States v. Taylor , 480 F.3d 1025, 1027 (11th Cir. 2007); and United States v. Eaves , 877 F.2d 943, 946 (1989).
Defendant is charged in Counts Nine, Ten, and Twelve with conspiracy to distribute cocaine and with two substantive offenses of attempt to distribute cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)-(B), and 846. As a preliminary matter, it bears noting that there is no question that "possession and sale of illegal drugs impacts upon interstate commerce." Holland, 503 F.Appx. at 743 (quoting United States v. Bernard , 47 F.3d 1101, 1103 (11th Cir. 1995) (per curiam)). Furthermore, it is well established that a conviction for conspiracy to distribute and attempt to distribute illegal drugs under 21 U.S.C. §§ 841 and 846 can be sustained even where the drugs involved in the government sting were fictitious. See Taylor , 480 F.3d at 1027. The interstate nexus may be met by the potential impact on interstate commerce, measured at the time of the attempt, "based on the assumed success of the intended scheme." United States v. Farrell , 877 F.2d 870, 875 (11th Cir. 1989).
In Counts Eleven and Thirteen, Defendant is charged with attempted Hobbs Act extortion under 18 U.S.C. §§ 2 and 1951(a). The Hobbs Act prohibits obstructing, delaying, or affecting commerce by robbery or extortion, or attempting to do so. 18 U.S.C. § 1951(a). The two required elements for a substantive Hobbs Act conviction are "[extortion] and an effect on [interstate] commerce." United States v. Rodriguez , 218 F.3d 1243, 1244 (11th Cir. 2000) (per curiam). As noted above, the interstate nexus for "[a] Hobbs Act conspiracy can be proved by showing a potential impact on interstate commerce." Verbitskaya , 406 F.3d at 1335 (emphasis in original). And "[a] sufficient potential impact exists where there is evidence of a plan to embark upon a course of extortionate behavior likely to have the natural effect of obstructing commerce.'" Farrell , 877 F.2d at 875 (quoting United States v. Gupton , 495 F.2d 550, 551 (5th Cir. 1974)). "The fact that the intended victims and narcotics were fictional is irrelevant." Taylor , 480 F.3d at 1027.
Defendant concedes, somewhat reluctantly, that "if precedent is used a case can be made" that the interstate commerce nexus is satisfied here. [Doc. 83 at 6]. Nevertheless, he argues, citing to a different Hobbes,  that existing precedent was not "well-done" and should, in effect, be "un-done." [Id.]. The undersigned declines the invitation to disregard the precedent, however, and ...