Only Minimal Impact on Commerce Needed for Attempted Bombing

Legal Sidebari

Only Minimal Impact on Commerce Needed
for Attempted Bombing
July 26, 2018
The United States Court of Appeals for the Eleventh Circuit (Eleventh Circuit) recently held in United
States v. Suarez that a minimal impact on commerce is sufficient to satisfy the jurisdictional requirement
of the federal weapons of mass destruction statute. The decision seems to reflect a growing willingness of
federal appellate courts to read broadly Congress’s Commerce Clause powers.
Facts: Harlem Suarez, the defendant in the case, established a Facebook page on which he posted ISIS
(Islamic State of Iraq and al-al-Sham) propaganda, recruited others, and sought bomb-making
instructions. FBI informants befriended Suarez, helped him create an ISIS recruiting video, and agreed to
make a bomb for him. Suarez supplied the FBI informants, one of whom he believed to be an ISIS
representative, with some of ingredients for his bomb – two boxes of nails, a backpack, and a cellphone.
He said he intended to detonate the device on a crowded beach using a cellphone. The FBI arrested
Suarez after the informant handed him an inoperable “bomb.” At trial, a travel agent testified that a
terrorist attack would adversely impact Key West’s tourist business. The federal district court convicted
Suarez for attempt to use a weapon of mass destruction and for attempt to provide material support to a
designated foreign terrorist organization. It sentenced him to 20 years on the material support charge and
to life imprisonment on the weapons charge.
Statutes: The material support statute proscribes providing support, including personal services, to an
organization designated by the Secretary of State as a foreign terrorist organization, which includes ISIS.
The statute covers attempt and conspiracy, as well as, the completed substantive offense.
The weapons statute proscribes the unlawful use, threats to use, attempts to use, and conspiracy to use,
weapons of mass destruction here and abroad. A conviction for attempt requires proof of intent and a
substantial step, more than mere preparation, towards completion of the substantive offense. The line
between mere preparation and substantial step is not easily discerned, but authorities need not wait until
the last minute when the completed offense is potentially catastrophic. The weapons of mass destruction
for purposes of the statute include chemical, biological, and nuclear weapons, as well as destructive
devices, i.e., missiles, grenades, mines, mortars, some high powered firearms, incendiary devices, and
bombs. The jurisdictional element at issue in Suarez requires that “the offense, or the results of the offense
… in the case of … attempt … would have affected interstate or foreign commerce.”
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Eleventh Circuit: Suarez’s counsel argued on appeal that the prosecution had offered insufficient evidence
to show that Suarez’s conduct, if successful, would have affected commerce. The Supreme Court has
explained that the Constitution’s Commerce and Necessary and Proper Clauses are not without limit, but
they do authorize Congress to regulate the instrumentalities of interstate commerce, the use of channels of
interstate commerce, and activities that substantially affect interstate commerce. Moreover, as the
Supreme Court explained in a Hobbs Act case, Taylor v. United States, Congress may regulate isolated
activities under the Commerce Clause “as long as they substantially affect commerce in the aggregate,
even if their individual impact on interstate commerce is minimal.” The lower federal courts have
regularly endorsed a “de minimis” (minimal) commerce impact standard under the Hobbs Act. The
Hobbs Act outlaws robberies that “in any way or degree” affect commerce, although some cases
recognize a higher standard if the target of the robbery is a private individual rather than a business. One
appellate court has suggested that Hobbs Act cases are unique. That is, because the “Hobbs Act prohibits
robberies that affect interstate commerce ‘in any way or degree,’ the required showing of an effect on
interstate commerce is de minimis.” The weapons statute has no such “in any or degree” language.
Nevertheless, several other federal appellate courts have approved use of the de minimis standard in
money laundering, commercial sex trafficking, health care fraud, RICO (racketeering), and explosives
cases. In fact, the United States Court of Appeals for the Eighth Circuit (Eighth Circuit) announced in an
earlier weapons of mass destruction case that where a statute contains “an express jurisdictional nexus to
interstate commerce, violations that have merely a de minimis effect on interstate commerce satisfy the
jurisdictional requirement.”
The Suarez court cited its own Hobbs Act precedents and the Eighth Circuit decision in support of its
conclusion that the minimum impact standard applies in weapons of mass destruction cases. It also held
that the travel agent’s testimony was sufficient to satisfy this “low bar” in Suarez.
Suarez’s counsel also challenged Suarez’s sentence without success. In Graham v. Florida, the Supreme
Court acknowledged that the Eighth Amendment’s Cruel and Unusual Punishment Clause precludes
imposition of a sentence of life imprisonment without the possibility of parole for a crime committed as a
juvenile. Suarez’s counsel contended that the same rationale should apply to gullible, immature, not very
bright defendants in their early twenties, like Suarez. The court was not persuaded. It pointed out that it
had never upheld an Eighth Amendment challenge in a non-capital case and that Suarez could not claim
the shelter of Graham because he was not a juvenile. As for Suarez’s Sentencing Guideline challenges,
the court found his sentences both procedurally and substantially reasonable. A sentence is procedurally
reasonable if the sentencing court navigates the Guidelines and the general sentencing statute without
mishap. A sentence is substantially reasonable if it is not unfair.
Congressional Considerations: The Suarez and Taylor decisions seem to confirm that Congress enjoys
exceptionally broad legislative powers under the Constitution’s Commerce and Necessary and Proper
Clauses. The Supreme Court’s Lopez and Morrison decisions serve as reminders that those powers are
not boundless.

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Author Information

Charles Doyle

Senior Specialist in American Public Law






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