U.S. v. Atcheson

• Decision Date: 03 October 1996
• Docket Number: Nos. 95-30296,95-30297,s. 95-30296
• Citation: 94 F.3d 1237
• Parties: 96 Cal. Daily Op. Serv. 6492, 96 Daily Journal D.A.R. 12,115 UNITED STATES of America, Plaintiff-Appellee, v. Stephen Wayne ATCHESON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mark Edward McGRATH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1237

94 F.3d 1237

96 Cal. Daily Op. Serv. 6492, 96 Daily Journal

D.A.R. 12,115

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Wayne ATCHESON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Mark Edward McGRATH, Defendant-Appellant.

Nos. 95-30296, 95-30297.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 5, 1996.

Decided Aug. 30, 1996.

As Amended on Denial of Rehearing Oct. 3, 1996.

Steven V. Richert, Service, Gasser & Kerl, Pocatello, Idaho, for defendant-appellant Atcheson. Monte R. Whittier, Whittier, Souza & Naftz, Pocatello, Idaho, for defendant-appellant McGrath.

James M. Peters, Assistant United States Attorney, Boise, Idaho, for plaintiff-appellee.

Appeals from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. D.C. Nos. CR-95-00015-2-EJL and CR-92-00021-1-EJL.

Before ALARCON, NORRIS and KLEINFELD, Circuit Judges.

ALARCON, Circuit Judge:

Mark Edward McGrath and Stephen Wayne Atcheson were found guilty of conspiracy to commit robbery, attempted robbery, extortion, and attempted extortion in violation of the Hobbs Act. The jury also found McGrath and Atcheson guilty of violating the Travel Act, using a firearm during a crime of violence, possessing an unregistered firearm, and being felons in possession of firearms.

McGrath seeks reversal of the judgment of conviction on the following grounds:

One. The district court lacked subject matter jurisdiction under the Hobbs Act, 18 U.S.C. § 1951(a).

Two. The district court erroneously instructed the jury that the defendants could be found guilty of violating the Hobbs Act if their acts had a probable or potential effect on commerce.

Three. The district court erroneously imposed consecutive sentences for the Hobbs Act violations and firearms violations.

Atcheson joins McGrath in his first and third contentions. He also seeks reversal of the judgment of conviction on the following grounds:

One. The district court erred in denying his motion for a separate trial and his motion for mistrial.

Two. The prosecution improperly vouched for the credibility of government witnesses and referred to evidence not in the record during closing argument.

Three. The pretrial identification procedure was impermissibly tainted.

Four. The district court erroneously imposed consecutive sentences for the use of two firearms during the crimes.

For the reasons stated below we remand to the district court for the purpose of resentencing Atcheson on counts 11 and 12 for violation of 18 U.S.C. § 924(c). We affirm the remainder of the judgment.

I.

McGrath, Atcheson, and an unindicted co-conspirator, Teddy Pinkerton, formulated a scheme to make some "easy money" by taking hostages, stealing their credit and automated teller machine ("ATM") cards, and then using the cards to obtain money through ATM machines. To implement this plan they traveled from their homes in Salt Lake City, Utah to Pocatello, Idaho on July 28, 1994. Once in Pocatello, McGrath, using the alias of Jerry Timberman, posed as a prospective buyer for a vacant building. McGrath contacted various business men and women in the Pocatello area, ostensibly for the purpose of obtaining bids and estimates on the cost of remodeling the building and supplying office equipment. He arranged to meet with these persons at the vacant building the next day.

As the individuals contacted by McGrath arrived for their appointments on July 29, 1994, the co-conspirators took them hostage, using a sawed-off shotgun and a .22 caliber semi-automatic pistol. The co-conspirators took the hostages' wallets, credit cards, ATM cards, cash, jewelry and other personal items, and demanded their personal identification numbers for their credit and ATM cards. The hostages were ordered to remove their clothing and to crawl into a vault where their feet and hands were bound with duct tape. Throughout this ordeal, the co-conspirators threatened to kill the hostages or to injure their families.

Many of the credit and ATM cards which the co-conspirators took from the hostages were from out-of-state financial institutions. After taking the credit and ATM cards, the co-conspirators called the financial institutions, apparently to check the bank account balances and credit limits associated with the cards. The co-conspirators attempted to obtain money with the credit and ATM cards. Their efforts proved fruitless.

On May 11, 1995, the Government filed a fifteen count superseding indictment against McGrath and Atcheson in the United States District Court for the District of Idaho. On June 7, 1995, a jury convicted McGrath and Atcheson of the following crimes: count 1, conspiracy to violate the Hobbs Act; count 2, violation of the Interstate and Foreign Travel Act; counts 3-10, violation of the Hobbs Act in relation to each of eight victims; counts 11 and 12, use of a firearm during and in relation to a crime of violence; count 13, possession of an unregistered firearm; and counts 14-15, being a felon in possession of a firearm. McGrath and Atcheson were sentenced on August 31, 1995. They timely appealed the judgment of conviction and the sentence imposed by the district court.

II.

McGrath and Atcheson contend that the district court lacked jurisdiction under the Hobbs Act because the Government did not demonstrate a sufficient connection between their acts and interstate commerce. The elements of a Hobbs Act violation are extortion and a nexus between a defendant's acts and interstate commerce. Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct 270, 273-74, 4 L.Ed.2d 252 (1960). Because the Government bears the burden of proving each element of the crime, McGrath and Atcheson were not required to challenge the sufficiency of the Government's evidence of a nexus between their acts and interstate commerce before the trial court. See United States v. James, 987 F.2d 648, 651-52 (9th Cir.1993) (bank robbery conviction reversed where government failed to present any evidence that bank was insured by the FDIC). This court must reverse the conviction if, reviewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found that there was a sufficient nexus between McGrath and Atcheson's acts and interstate commerce. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

A.

We have held that the Government need prove that a defendant's acts had only a de minimis effect on interstate commerce to support a Hobbs Act violation. United States v. Phillips, 577 F.2d 495, 501 (9th Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 107, 58 L.Ed.2d 125 (1978); United States v. Zemek, 634 F.2d 1159, 1173 n. 20 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981). McGrath and Atcheson contend that the United States Supreme Court overruled our de minimis standard in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). We disagree.

In Lopez, the Supreme Court addressed a challenge to Congress' authority under the Commerce Clause to enact the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(1)(A). --- U.S. at ----, 115 S.Ct. at 1626. The Court recognized three broad categories of activity that Congress may regulate pursuant to its commerce power: (1) use of channels of interstate commerce; (2) instrumentalities of interstate commerce; and (3) activities having a substantial relation to interstate commerce. Id. at ---- - ----, 115 S.Ct. at 1629-30. The Court concluded that the Gun-Free School Zones Act did not involve the first two categories. Id. at ----, 115 S.Ct. at 1630. Addressing the third category, the Court opined that it was unclear from current case law whether the regulated activity must simply "affect" interstate commerce or whether it must "substantially affect" interstate commerce. Id. The Court concluded that the proper test for a statute which "neither regulates a commercial activity nor contains a [jurisdictional] requirement that the [regulated activity] be connected in any way to interstate commerce" was whether the regulated activity "substantially affects" interstate commerce. Id. at ----, ----, 115 S.Ct. at 1626, 1630. With respect to the Gun-Free School Zones Act, the Court concluded that "[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at ----, 115 S.Ct. at 1634. Accordingly, the Court held that the Gun-Free School Zones Act was an invalid exercise of Congressional authority under the Commerce Clause. Id. at ----, 115 S.Ct. at 1626.

We have not previously addressed the question whether the Court's decision in Lopez invalidates the law of this circuit that the Government need only show a de minimis effect on interstate commerce to support a violation of the Hobbs Act. See Phillips, 577 F.2d at 501 (applying de minimis standard); Zemek, 634 F.2d at 1173 n. 20 (same). Several other courts, however, have rejected similar challenges to their application of a de minimis test under the Hobbs Act. United States v. Stillo, 57 F.3d 553 (7th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995); United States v. Bolton, 68 F.3d 396 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); see also, United States v. Farmer, 73 F.3d 836, 843 (8th Cir.) (holding that Lopez had "no application to [Hobbs Act] cases [involving robbery] of commercial establishments"), cert. denied, --- U.S. ----, 116 S.Ct. 2570, 135 L.Ed.2d 1086 (1996).

In United States v. Bolton, the defendant argued that the Supreme Court's decision in Lopez invalidated both the Hobbs Act and the Tenth Circuit's de minimis test. 68 F.3d at 398. The Tenth Circuit rejected both arguments. Id. at 399. The court opined that:

Lopez did not ... require the government to show...