U.S. v. Dupree

Citation323 F.3d 480
Decision Date17 March 2003
Docket NumberNo. 01-1444.,01-1444.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ronald DUPREE, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Joan E. Meyer (argued and briefed), Assistant United States Attorney, Grand Rapids, MI, for Appellee.

Anthony C. Greene (argued and briefed), Grand Rapids, MI, for Appellant.

Before KRUPANSKY, SILER, and COLE, Circuit Judges.

OPINION

SILER, Circuit Judge.

Defendant Ronald Dupree appeals his conviction and sentence for racketeering conspiracy, armed robbery, and unlawful possession and use of a firearm in the commission of a crime of violence. He was sentenced to 87 months on the first two charges and 84 months on the third, to run consecutively to the previous sentence. As set forth below, we affirm the decision of the district court.

BACKGROUND

In 1999, an armed guard for the Wolverine Armored Dispatch Service was robbed at gunpoint while making his regular pick-up of cash and checks at the Value City Department Store ("Value City") in Wyoming, Michigan. At the time of the robbery, Dupree was employed at Value City as a loss prevention officer and was at the store when the robbery occurred. Two men entered the store shortly after the armored truck guard, Steven Shook, arrived, and followed him to the back of the store. Shook had just taken delivery of two bags of money (one containing $84,685.88 and the other containing $54,328.15) and placed the bags into one canvas bag when he was confronted by Brian Tufnell. Tufnell held a gun to Shook's chest; his accomplice, Reginald Clopton, took the canvas bag and the two ran out of the store. Tufnell and Clopton were ultimately arrested. Tufnell pled guilty to racketeering conspiracy, armed robbery, and being a felon in possession of a firearm, and received a sentence of 102 months. Clopton pled guilty to racketeering conspiracy and armed robbery, and was sentenced to 63 months.

Dupree was indicted on charges of racketeering conspiracy, armed robbery, and unlawful possession and use of a firearm in the commission of a crime of violence. At trial, both Tufnell and Clopton testified that Dupree helped plan the robbery (using knowledge gained as Value City's loss prevention officer and from former employment as a guard for an armored truck service) and that he supplied the gun used in its commission. Dupree was convicted of all charges and was sentenced to a total of 171 months.

STANDARD OF REVIEW

To the extent Dupree makes a constitutional challenge to his conviction under the Hobbs Act, this issue is viewed as a question of law and is reviewed de novo. See United States v. Smith, 182 F.3d 452, 455 (6th Cir.1999). To the extent he argues that the evidence was insufficient to support this conviction, this court must determine "whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Wang, 222 F.3d 234, 237 (6th Cir.2000) (internal quotation marks omitted) (emphasis in original). In reviewing the denial of Dupree's motion to suppress, this court upholds the district court's findings of fact unless they are clearly erroneous, and reviews its legal conclusions de novo. United States v. Atkin, 107 F.3d 1213, 1216 (6th Cir.1997). The court reviews the trial court's denial of Dupree's motion for a new trial under an abuse of discretion standard. United States v. Gaitan-Acevedo, 148 F.3d 577, 589 (6th Cir.1998). Although Dupree asserts, without authority, that this court should review his claim of prosecutorial vindictiveness de novo, ordinarily such claims are reviewed for clear error. See United States v. Sammons, 918 F.2d 592, 601 (6th Cir.1990). Of course, there is no lower court finding to review, as Dupree has raised this claim for the first time on appeal. Finally, with regard to Dupree's challenges to his various sentence enhancements, "[t]his court reviews a district court's application of the Sentencing Guidelines de novo, and the district court's findings of fact thereunder for clear error." United States v. Cowan, 196 F.3d 646, 647-48 (6th Cir.1999).

DISCUSSION
A. Hobbs Act

Dupree was convicted of racketeering conspiracy and armed robbery in violation of the Hobbs Act, which provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). This "broad jurisdictional language" has historically been construed as requiring only a de minimus effect on interstate commerce. See United States v. Mills, 204 F.3d 669, 671 (6th Cir.2000). Dupree, however, argues that, in light of recent precedents abrogating the broad construction of the Commerce Clause — including United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), 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)1 — the government failed to meet its burden of showing a sufficient effect on interstate commerce to meet the jurisdictional predicate for his prosecution under the Hobbs Act.

Dupree relies primarily on United States v. Wang, 222 F.3d 234 (6th Cir. 2000), for support. In that case, this court held that the robbery of a couple in their home did not have a substantial effect on interstate commerce, requiring the reversal of Wang's conviction under the Hobbs Act. Specifically, we observed that "our precedents have involved robberies in which the victims were businesses engaged in interstate commerce. But where, as here, the criminal act is directed at a private citizen, the connection to interstate commerce is much more attenuated." Id. at 238. Proceeding from Wang, Dupree characterizes the crime in the instant case as the robbery of an individual, notes that the armored car service for which that individual worked did not operate outside of Michigan, and contends that the government has not shown a sufficient interstate nexus. This argument is not persuasive. The robbery in this case targeted an armored car messenger, engaged in the performance of his duties, inside a department store on his regular route. Shook had just taken possession of $130,014.03 in cash and checks — not an insignificant sum — when he was robbed. This situation is clearly distinguishable from the robbery of private citizens, in their residence, in Wang.

In United States v. Smith, 182 F.3d 452 (6th Cir.1999), this court held that the traditional de minimus standard for Hobbs Act violations survived Lopez, so that "if a statute regulates an activity which, through repetition, in [the] aggregate has a substantial effect on interstate commerce, the de minimus character of individual instances arising under the statute is of no consequence." Id. at 456 (internal quotation marks omitted). Wang recognized this holding, but "stated that the required showing `is of a different order' when the victim is a private citizen, rather than a business entity engaged in interstate commerce." United States v. Garcia, 143 F.Supp.2d 791, 810 (E.D.Mich. 2000) (quoting Wang, 222 F.3d at 238). The instant case does not fall within this exception. Although the money in the robbery was taken from an armored truck guard, it had just been picked up from a Value City Department Store. Value City is engaged in interstate commerce and the money, although in the custody of the armored truck company, was destined for a deposit on behalf of Value City and was not the property of the armored truck company. The armored truck company also had insured the proceeds with an out-of-state insurance company. The facts of this case do not require "long chains of causal inference ... to arrive at a substantial effect on interstate commerce," nor the type of "`butterfly effect' theory of causation" eschewed in Wang. See Wang, 222 F.3d at 239. The government sufficiently established the jurisdictional predicate for Dupree's prosecution under the Hobbs Act.

B. Motion to Supress

Dupree next contends that statements he made to the police following his arrest should not have been admitted at trial. Specifically, he contends that his counsel had an informal agreement with the government, whereby counsel would be notified if Dupree was to be arrested, and Dupree would turn himself in. When he was arrested, however, his counsel was not notified and was not present when Dupree spoke with FBI Agent Roberta Gilligan (who knew he was represented by counsel) for approximately an hour and a half.2 Though Dupree signed two written waivers (one waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and another counsel-specific waiver) before speaking with Gilligan, he contends that these statements were obtained in violation of his rights under the Fifth and Sixth Amendments, and that their admission forced him to testify at trial.3

Dupree cites the proposition enunciated in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), that once an accused invokes his right to counsel during custodial interrogation, that interrogation must cease until counsel is made available, unless the accused initiates further communication with the police. See id. at 484-85, 101 S.Ct. 1880. Further, Edwards stated that even in a meeting initiated by the accused,

it is likely that the officers will say or do something that clearly would be "interrogation. In that event, the question would be whether a valid waiver...

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