Blog: Feds label marijuana smuggling 'interstate commerce'

The indictment unsealed Monday against the suspected killers of U.S. Border Patrol Agent Brian Terry contains strange nuggets in Counts 3 and 4.

In short, the indictment categorizes marijuana smuggling as interstate or international commerce, and says interfering with it is illegal.

What?

To understand how this is possible, you need to grasp the Hobbs Act. This federal law, enacted in 1946 to fight labor-union racketeering, prohibits robbery or extortion affecting interstate commerce. Often these days, though, it is used as a means for federal agencies to take over what would normally be a local criminal case, as the FBI has done in Philadelphia.

The first time I encountered it was in the late 1990s. Tucson federal prosecutors charged a man with robbery interfering with interstate commerce, citing the fact that the hot dogs, beer and other products in the convenience store he robbed had come across state lines. In 2001, federal prosecutors in Phoenix charged a man who set fire to luxury homes under construction there with "extortion affecting interstate commerce." Thus, a local arson case became a federal case.

The indictment against Terry's suspected killers charges them in Count 3 with "conspiracy to interfere with commerce by robbery," and in Count 4 with "attempted interference with commerce by robbery."

So, what was this commerce that Terry's alleged killers conspired to interfere with? Marijuana smuggling! Because the defendants allegedly were a "rip crew" intending to steal marijuana loads, they are accused of illegally interfering with the smuggling of drugs. As count 3 says, "the defendants unlawfully conspired to interfere with the movement of drugs..."

Assistant U.S. Attorney Todd Robinson, one of the prosecutors in the case, pointed me to this congressional finding for an explanation. It establishes that drug trafficking is interstate or international commerce, for criminal-prosecution purposes.

When I asked longtime Tucson federal public defender Heather Williams about that use of the Hobbs Act, she said she'd never heard of it before.