## Facts

- James McFarland, Jr. robbed four convenience stores in Fort Worth, Texas.
- The stores sold merchandise that had been obtained, at least in part, from outside Texas.
- McFarland was charged with four counts of Hobbs Act robbery under 18 U.S.C. § 1951.
- He was also charged with four corresponding counts of using and carrying a firearm during and in relation to those robberies under 18 U.S.C. § 924(c)(1), dependent on the Hobbs Act offenses.
- A Fifth Circuit panel affirmed the convictions, treating circuit precedent as controlling on the Hobbs Act interstate-commerce element.
- The Fifth Circuit granted rehearing en banc and divided evenly.

## Issues

1. Whether the evidence was sufficient to prove the interstate-commerce element required for Hobbs Act robbery when the victim businesses were local convenience stores.
2. Whether the jury instructions on the Hobbs Act commerce element improperly allowed conviction on an overly minimal or presumed effect on interstate commerce.
3. What effect an equally divided en banc court has on the judgment and on the creation of binding circuit precedent.

## Decision

- The en banc court, sitting per curiam, affirmed the district court’s judgment of conviction and sentence because it was equally divided.
- The affirmance left McFarland’s Hobbs Act and related § 924(c) convictions in place.
- Because there was no majority, the en banc proceeding did not produce binding en banc reasoning revising the circuit’s Hobbs Act commerce-nexus standard.
- A concurrence supported affirmance and objected to revisiting settled circuit law or creating a circuit split.
- A dissent would have reversed, concluding the proof and jury charge did not adequately establish a real effect on interstate commerce and raised Commerce Clause concerns in light of modern Supreme Court doctrine.

## Legal Principles

- When an en banc federal court of appeals is evenly divided, it affirms the judgment below by operation of law and does not create new binding en banc precedent.
- In the Fifth Circuit, absent a contrary en banc majority, prior circuit precedent continues to govern the Hobbs Act interstate-commerce element in prosecutions involving robberies of businesses connected to interstate commerce through out-of-state goods and related asset depletion.
- Internal disagreement may persist over how concretely the government must prove the Hobbs Act’s commerce effect, particularly in local robbery cases, but a tie vote does not change the governing standard.

## Conclusion

The Fifth Circuit, sitting en banc, affirmed McFarland’s Hobbs Act and § 924(c) convictions due to an equally divided court, leaving existing circuit precedent on the Hobbs Act interstate-commerce requirement intact and issuing no new en banc rule on the sufficiency of proof or jury instructions for the commerce element.


United States v. McFarland, 311 F.3d 376 (5th Cir. 2002)