458 F.3d 1011 (9th Cir. 2006), 05-30134, United States v. Hartz

Docket Nº:05-30134.
Citation:458 F.3d 1011
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Tommy Owen HARTZ, Defendant-Appellant.
Case Date:August 17, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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458 F.3d 1011 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Tommy Owen HARTZ, Defendant-Appellant.

No. 05-30134.

United States Court of Appeals, Ninth Circuit.

August 17, 2006

Submitted March 9, 2006[*]

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[Copyrighted Material Omitted]

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COUNSEL

David B. Zuckerman, Seattle, Washington, for the defendant-appellant.

Susan M. Roe, Assistant U.S. Attorney, Seattle, Washington, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CR-02-00157-001-TSZ.

Before: Diarmuid F. O'Scannlain, Barry G. Silverman, and Ronald M. Gould, Circuit Judges.

OPINION

GOULD, Circuit Judge.

After a jury trial, Tommy Hartz was convicted of conspiracy, interference with commerce by robbery, use of a firearm during and in relation to a crime of violence, and being a felon in possession of a firearm. Hartz appeals his conviction, arguing: (1) that the district court admitted evidence obtained during an unlawful police search in violation of the Fourth Amendment; (2) that the jury instructions constructively amended the indictment in violation of the Fifth Amendment; and (3) that the evidence offered at trial was insufficient to warrant the jury's verdict. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

On the morning of July 21, 2000, two men robbed Gem Design, a jewelry store in Bellevue, Washington. There were then no customers in the store and only one employee, Richard Marciel. Before the robbery, Marciel had been in the back of the store1 doing appraisal work. Hearing someone enter the store, Marciel walked towards the front of the store. As Mar-ciel reached the showroom, he saw a man pointing a gun at him, about ten feet to his left. Another man, who appeared to be unarmed, was standing near the front of the store. Both men were wearing hats and tee shirts. The hats were pulled down to the robbers' eyebrows. The tee shirts

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were pulled up to cover their mouths. Marciel would later testify that the robbers' clothing was "bulky," and that the robbers wore "layers of clothing," which Marciel considered odd because the robbery occurred on a mid-summer day. Marciel noticed that the gun pointed at him was silver and had a longer barrel than the .38-caliber gun he owned. The gunman told Marciel to lay face down in the doorway if he valued his life, demanded to know where the store kept its gold and diamonds, and, at some point, called to the front of the store, "Joe, how are you doing?" When the robbers had most of the store's jewelry and cash, the gunman told Marciel to stand up and walk to the back of the store. As the gunman looked around for something to which he could handcuff Marciel, Marciel saw the side of the gunman's face, and noted its texture and tone. The gunman handcuffed Marciel to a piece of jewelry-cleaning equipment, told him to stay still for five minutes, and then left the store. The robbers stole most of the store's inventory of gold and precious stones, worth more than $200,000.

The day after the robbery, the police arrested Kevin Anders on charges unrelated to the Gem Design robbery. Anders told the police that Tammy Trump and Larry Jordan had information about the robbery. The police then got and executed a search warrant for the home where Trump and Jordan lived. There, the police found a diamond and a gold chain that had been stolen from Gem Design. Trump told the police that Tommy Hartz and a friend had robbed a jewelry store in Bellevue. Trump claimed that on the morning of the robbery, Hartz and his accomplice had each carried a gun and that they had prepared for the robbery in her home, donning fake mustaches and wigs to disguise their appearances, and discussing their plan to handcuff anyone they found in the store. She claimed that Hartz and his accomplice returned to her home later that day, carrying bags filled with jewelry and bragging about the heist. Trump told the police that she had driven Hartz to a travel trailer where he was staying, but beforehand, without Hartz's knowledge, she had taken a few pieces of stolen jewelry to keep for herself and her son. Trump then led the police to the travel trailer. Based on Trump's information, which Jordan corroborated, the police applied for and executed a search warrant for the travel trailer.

There, the police recovered twenty necklaces and other valuables stolen from Gem Design, a .357-caliber Smith & Wesson revolver, and a Chinese 9mm semiautomatic pistol. The police also found materials that could be used to create disguises, including fake mustaches, wigs, hair dye, false teeth, and a home-made foam vest that would increase the wearer's perceived bulk. Further, the police found items confirming that Hartz lived in the trailer, including a medical bracelet with Hartz's name on it, a Polaroid picture of Hartz, and a receipt that recorded the sale of a .38-caliber revolver to "Terry Hartz." With the items found in the trailer and the information from Trump and Jordan, the police obtained a warrant to arrest Tommy Hartz.

At about 1:00 A.M. on the morning of July 25, 2000, two Pierce County Sherriff's deputies, William Pebley and Daniel Wulick, received a radio message that an orange, 1977 Chevrolet pickup truck had been carjacked in Tacoma, Washington. The message reported that one carjacker was a man, that the other suspect was a woman, and that the stolen truck's license plate number was 03181L.2

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Three hours later, around 4:00 A.M., Pebley and Wulick saw a 1977 Chevrolet pickup truck that seemed to match the description of the truck stolen in Tacoma. Following it, the deputies noticed that the truck's license plate was new, unlike the truck, which was old and in poor condition. They also noticed that the license plate was attached to the truck with "zip ties," and that the license plate number was A04386I, which did not match the stolen truck's license plate number. License plate number A04386I belonged to a red, 1977 Chevrolet pickup truck, rather than an orange one. The deputies saw two persons in the pickup. The passenger was white, had long hair, and appeared to be a woman. The officers stopped the truck.

As Wulick approached the driver's side of the truck, he saw both bullets and a knife on the dashboard. He then asked the driver, Reese Hinkle, to step out of the truck, told Pebley that there were bullets on the dashboard, and instructed Pebley to remove the passenger from the truck. Hartz was the passenger, and as he stepped out of the truck, Wulick saw a gun sitting on the seat. After frisking Hinkle for weapons, Wulick decided to frisk Hartz as well. At a suppression hearing in Washington state court, Wulick testified that he frisked Hartz because the gun inside the truck suggested that Hartz might be armed. While frisking Hartz, Wulick found, in a front pocket of Hartz's pants, an Altoids container and a golf-ball-sized bundle of cellophane wrapped with duct tape. Wulick testified in state court that when he felt the Altoids container and the wad of duct-tape wrapped cellophane together, he thought they were a weapon or that they might contain a weapon. Inside the Altoids tin, Wulick found a bundle of pills, but no information identifying them. In Hartz's other pocket, Wulick felt a narrow object, about four inches long, that Wulick thought was a knife. Removing this object from Hartz's pocket, Wulick saw that it was a marijuana pipe, made of a brass pipe fitting and tubing. Wulick then arrested Hartz for "drug paraphernalia." After arresting Hartz, the deputies conducted a full search of his pockets, and discovered a piece of paper listing items of jewelry and their values.

Before the search, Pebley had asked Hartz for his name and Hartz had identified himself as "Terry Hartz." After his arrest, however, the deputies found Hartz's identification, as Tommy Hartz, inside the truck. The deputies had previously checked to see whether there was a warrant to arrest Terry Hartz and learned that there was not. They checked again after discovering Tommy Hartz's identity and learned that he was wanted for his role in the Gem Design robbery.3

In a superceding indictment presented on March 13, 2003, a federal grand jury charged Hartz with four crimes: conspiracy to commit interference with commerce by robbery, in violation of 18 U.S.C. § 1951 (count 1); interference with commerce by robbery, in violation of 18 U.S.C. § 1951 (count 2); use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count 3); and unlawful possession of a firearm having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (count 4).4 in part, count three alleged that

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Hartz "did use and carry, and did aid and abet in the use and carrying of, firearms, to wit, a Smith & Wesson .357 caliber, Model 65-5 revolver; and a Chinese 9mm Model 2139X1 semiautomatic pistol." Similarly, count four alleged in part that Hartz "did knowingly and unlawfully possess . . . the following firearms, which had been shipped and transported in interstate and foreign commerce: a Smith & Wesson .357 caliber, Model 65-5 revolver; and a Chinese 9mm Model 2139X1 semiautomatic pistol."

Before trial, Hartz filed a motion to suppress the jewelry list found in his pocket and his statement to the police identifying himself as "Terry" rather than Tommy Hartz. The district court denied the motion, without holding an evidentiary hearing, concluding that the deputies had probable cause to stop Hinkle's truck, that the deputies lawfully frisked Hartz given their reasonable suspicion that he might be armed, and that there was...

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