311 F.3d 376 (5th Cir. 2002), 00-10569, U.S. v. McFarland
|Citation:||311 F.3d 376|
|Party Name:||U.S. v. McFarland|
|Case Date:||October 28, 2002|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Michael R. Dreeben (argued), U.S. Dept. of Justice, Kathleen A. Felton, U.S. Dept. of Justice, Criminal Div., Appellate Section, Washington, DC, Delonia Anita Watson, Fort Worth, TX, for Plaintiff-Appellee.
Stephen U. Baer (argued), Baer & Associates, Dallas, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas; Terry R. Means, Judge.
Before KING, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, DENNIS, and CLEMENT, Circuit Judges.
By reason of an equally divided en banc court, we affirm the district court's judgment of conviction and sentence.
W. EUGENE DAVIS and BENAVIDES, Circuit Judges, concurring in the affirmance of the judgment:
It is a deep mystery to us why five judges thought it helpful or appropriate to take eight fellow judges to task for failing to explain why they decline to change the established law of this circuit and create a circuit split. We of course disclaim their attempt to attribute views to us.
GARWOOD, Circuit Judge, with whom E. GRADY JOLLY, PATRICK E. HIGGINBOTHAM, EDITH H. JONES, JERRY E. SMITH, RHESA HAWKINS BARKSDALE, DeMOSS and CLEMENT, Circuit Judges, join, dissenting:
We respectfully dissent from the evenly divided Court's per curiam, unexplained affirmance of these convictions. The nature of the case and our reasons for concluding that reversal is required are set forth below.
James McFarland, Jr. appeals his conviction of four counts of robbery of local convenience stores in Fort Worth, Texas, in violation of 18 U.S.C. § 1951 (the Hobbs Act) and four corresponding counts of using and carrying a firearm during and in relation to those robberies in violation of 18 U.S.C. § 924(c)(1). He challenges his conviction on the Hobbs Act counts, asserting that the evidence was insufficient to establish the constitutionally or statutorily required nexus to interstate commerce and that the jury charge respecting this element was defective. A panel of this court affirmed per curiam. United States v. McFarland, 264 F.3d 557 (5th Cir. 2001). The panel considered itself bound by our prior decision in United States v. Robinson, 119 F.3d 1205 (5th Cir. 1997), and United States v. Hickman, 151 F.3d 446 (5th Cir. 1998), aff'd by an equally divided en banc court, 179 F.3d 230 (5th Cir. 1999), cert. denied, 530 U.S. 1203, 120 S.Ct. 2195, 147 L.Ed.2d 232 (2000). Judge DeMoss specially concurred, 264 F.3d at 559-61, urging en banc reconsideration in light of the intervening decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), the equally divided nature of the Hickman en banc affirmance and Judge Higginbotham's dissent therefrom. The Court subsequently took the case en banc. United States v. McFarland, 281 F.3d 506 (5th Cir. 2002).
Facts and Procedural Background
McFarland was charged in a ten count indictment with five Hobbs Act robbery counts, and five related section 924(c)(1) counts, pertaining to robberies of local convenience stores committed in Fort Worth, Texas, in November and December 1998. 1 He was acquitted of one of the robbery counts and of its related section 924(c)(1) count. 2 He was convicted on all the remaining counts. The four Hobbs Act counts of conviction (counts one, five, seven and nine) each alleged that McFarland "did knowingly and willfully obstruct, delay, and affect interstate commerce and did attempt to obstruct, delay and affect interstate commerce, by robbery, to wit: the defendant did take and obtain property, namely United States Currency, from the person and in the presence of ... [name of store employee], an employee of ... [name and address of store], against
his will by means of actual and threatened force, violence, and fear of injury to his person." 3
The stores involved, the amounts taken, in each case from the cash register, and the relevant dates of the four robberies were the following:
Count one, robbery November 20, 1998 of "Buy-Low" convenience store in which "about $100, close to $100" was taken;
Count five, robbery December 3, 1998 of Gateway Discount Liquor store in which "somewhere around 15 [$1,500] to $2,000" cash was taken;
Count seven, robbery December 11, 1998, Quickway Shopping convenience store in which "about $50" cash was taken; 4
Count nine, robbery December 21, 1998, Jeff Stop convenience store, in which $145 cash was taken.
Each of these four stores was a retail store, three being retail convenience stores and one a retail liquor store. There is no evidence that any of the four stores made any sales or shipments to points or purchasers outside of Texas, or, indeed made any sales other than at the store premises to retail purchasers resident in Fort Worth. There is no evidence that any of the stores was located at (or near) any transportation facility, such as a bus or train station or airport, or on an interstate highway. Three of the stores--Buy-Low, Jeff Stop and Gateway Discount Liquor--were apparently stand-alone, single location, concerns, unaffiliated, by common ownership or otherwise, with any other concern. The Quickway Shopping convenience store was apparently one of an unstated number of such stores so named, and William Gumfory, owner of the store robbed, may have owned some (or all) of the other Quickway Shopping convenience stores. 5 There is no evidence that any of the four robbed stores (or any Quickway Shopping store) had any facilities, property, employees, bank accounts or activities outside of Fort Worth, or was owned, in
whole or in part, by any one not a Fort Worth resident.
Each of the four retail stores sold items of merchandise some of which the evidence showed were originally manufactured or processed outside of Texas. 6 As to none of the three convenience stores was there any evidence indicating what fraction or percentage of their sales was of or allocable to items which had been manufactured or processed out of Texas, or what was the total dollar amount either of such sales or of all sales at the particular store. As to the Gateway Discount Liquor store, one of the three Texas wholesalers who supplied it testified that ninety-five percent of what he distributed both generally and to that particular store "came from outside the state of Texas" and that a very small amount of liquor or wine products was produced in Texas. The only evidence as to the Gateway Discount Liquor Store's dollar volume of sales and purchases was that it had $26,640.69 sales and $23,084.73 purchases from November 17 to November 30, 1998, and $34,910.03 sales and $36,547.67 purchases from December 1, 1998 through December 17, 1998, and that in the retail liquor business people start buying after Thanksgiving and the busiest time of year is from October through December.
There was no evidence that either the Buy-Low store or the Jeff Store acquired any of their inventory from sources outside of Texas, as opposed, for example, to acquiring it from a Texas wholesaler. Indeed, there was no evidence whatever as to how or from whom or where or on what basis either of those two stores acquired their inventory, except that they purchased it. The only evidence in this respect as to Gateway Discount Liquor is that it purchased its inventory from three Texas wholesalers, as required by Texas law. The only one of these three wholesalers who testified stated "I pay for that product beforehand, and its mine to distribute and sell and collect." Quickway Shopping purchased its merchandise inventory from a Weatherford, Texas, wholesaler, Hartnett Company, which in turn had purchased items including Tropicana juices from Florida, Wrigley's Gum and Gatorade from Chicago, and Purina dog food from Oklahoma. The goods Hartnett Company acquires come to a warehouse in Texas. It then sells them to local retail stores (and to some stores in Kansas). Quickway Shopping also sold money orders which it acquired from a company in Minnesota, and Mr. Gumfory testified "any money orders we sold we paid off the same day" and estimated "we sold probably 300 a month." It is not clear whether the 300 figure refers to the total number of individual money orders or the total face amount of the money orders sold per month. Nor is it clear whether the reference is to all Gumfory's Quickway Shopping stores or the particular one robbed of $50 on December 11, 1998.
The owners when the robberies occurred of Buy-Low, Jeff Stop and Gateway Discount Liquor stores testified that the percentage of their gross sales proceeds used to restock inventory was seventy-five percent for Gateway and Jeff Stop and seventy percent for Gateway. The former owner of Quickway Shopping testified that his profit margin on sales was approximately twenty-five percent, meaning that "if we sold $20,000 a month, we would have to buy $15,000 a month to replace it." These store owners each gave brief, conclusory
testimony that robbery of money from the store would cause problems respecting, hurt or hinder inventory purchases. 7 However, there was no evidence that any of the stores actually did purchase less, or delay any purchase, as a result of (or following) the charged robbery of that store. No questions in that respect were asked of the Buy-Low or Jeff Stop owners, and no one identified as a seller or supplier to either testified. 8 Likewise, neither the Gateway...
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