U.S. v. Dobbs

• Citation: 449 F.3d 904
• Decision Date: 31 May 2006
• Docket Number: No. 05-2973.,No. 05-2249.,05-2249.,05-2973.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kasper Lamar DOBBS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Robert Wilson, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

449 F.3d 904

UNITED STATES of America, Plaintiff-Appellee, v. Kasper Lamar DOBBS, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Robert Wilson, Jr., Defendant-Appellant.

No. 05-2249.

No. 05-2973.

United States Court of Appeals, Eighth Circuit.

Submitted: February 16, 2006.

Filed: May 31, 2006.

COPYRIGHT MATERIAL OMITTED

Patrick E. Ingram, argued, Iowa City, IA, for appellant Dobbs.

John Broz, argued, Cedar Rapids, IA (David E. Mullin, on the brief), for appellant Wilson.

Daniel C. Tvedt, argued, Asst. U.S. Atty., Cedar Rapids, IA, for appellee.

Before BYE, HEANEY, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Kasper Dobbs and Robert Wilson appeal their federal convictions and sentences stemming from the armed robbery of $565 from a "mom and pop" convenience store in Dubuque, Iowa. A jury convicted the defendants of Interference with Commerce by Violence (robbery) under the Hobbs Act, 18 U.S.C. § 1951(a), and firearms violations under 18 U.S.C. §§ 922 and 924. In addition, the district court found that Wilson had a sufficient number of prior convictions for "serious violent felonies" to mandate a life sentence under 18 U.S.C. § 3559. The district court sentenced Dobbs to 444 months imprisonment. Dobbs's sentence was the minimum Guidelines sentence under the applicable range of 360 months to life with a mandatory consecutive eighty-four-month sentence for the firearms charges.

As to Wilson, we affirm the judgment of conviction but find the enhancement under § 3559 inapplicable, vacate his sentence, and remand for resentencing. As to Dobbs, we affirm.

I.

We review the evidence in a light most favorable to the verdicts, drawing all reasonable inferences in favor of the prosecution. A central piece of evidence in this case was a May 22, 2003 videotape¹ from a surveillance camera at the convenience store that shows two men robbing the store. As explained below, numerous witnesses acquainted with Dobbs and Wilson identified them as the men visible on the tape. Also, although Dobbs is Wilson's half-brother and admits that he was present in the store (claiming that he "went in, got something, went back outside, went back in"), Dobbs claims that he was an innocent bystander uninvolved with the robbery.

The surveillance camera was located behind and above the counter, and the counter was located near the front door. The view shown on the tape includes the counter, the cash register, a portion of the space behind the counter, the area at the counter where a customer would stand when paying for a product, the front door, and a section of the store containing coolers and racks of merchandise. The videotape shows that Dobbs entered the convenience store, stood in line as another customer completed a purchase, purchased a can of beer, and left. During this trip into the store, Dobbs did not cover his face, and he stood facing the camera for a substantial period of time.

Shortly after leaving the store, Dobbs re-entered and asked the clerk for cigarettes. When the clerk was distracted retrieving cigarettes, Wilson entered the store with his hands in his pockets, walked behind the counter, and withdrew his hands and an object from his pockets. In the tape the object appears to be a firearm. Wilson pulled back on the top of the firearm in a motion that resembled the chambering of a round, and the firearm made a clicking sound. He then pointed the firearm at the clerk, ordered the clerk to the floor, and emptied the cash register. Throughout the robbery, Wilson repeatedly commanded the clerk to lie on her stomach.

During most of the robbery, Dobbs faced the camera but held his hands generally in front of his face in an apparent attempt to act like an innocent bystander or hide his face. After Wilson emptied the cash register and began to walk around from behind the counter, however, Dobbs lowered his hands and used gestures to instruct Wilson to return behind the counter and check the clerk. Wilson did so. While leaving the area behind the counter for the second time, Wilson looked directly into the security camera from close range. Wilson and Dobbs then left the store together.

The government's case also included the in-court testimony of numerous witnesses who, prior to trial, identified Wilson and Dobbs as the men on the videotape. Kristiana Roth, who had been Dobbs's live-in girlfriend for about two weeks at the time of the robbery, identified Dobbs as the first man to enter the store and Wilson as the man with the firearm. She recognized the men's clothes in the videotape as the same clothes that Dobbs and Wilson had been wearing when they left Dobbs's residence shortly before the robbery and when they returned to the residence shortly after the robbery. She also stated that when Dobbs and Wilson returned to the residence on the night of the robbery, they had money, acted nervous, talked about leaving town, and told her to stay in a different room. Finally, she stated that she had never seen Dobbs or Wilson with a gun but that Dobbs previously had bragged about a gun.

Stacy Rhone, the mother of two of Dobbs's children, identified Dobbs as the first man on the tape and Wilson as the man with the firearm. She also testified that she had known both men for twenty years. A third witness, Kathy Kennedy, identified Wilson as the man with the firearm on the tape. Prosecutors asked her at trial if she knew a different man that the police had initially arrested, if she knew Dobbs, and if the two men looked similar. She responded that she knew Dobbs and the other man, they looked alike, but "if you know one of them well enough, you would know the difference."

The store clerk testified as an eye-witness to the robbery. She stated that the object the second man pulled from his pocket was a silver firearm, she had a good view of the object because it was pointed directly at her, and the object made a clicking noise like a firearm. Her only prior experience with firearms was her observation of police officers' weapons during her own prior arrests and encounters with law enforcement. She claimed to have gotten a good look at the second man, his eyes in particular, but could not identify Wilson from an array of photos. She was able to narrow the field of photos down to Wilson and one other person, but she selected the photo of the other person. The person whose photo she selected was not the person that the police had initially arrested. The prosecutors did not ask her to identify the defendants at trial.

Other witnesses testified about the interstate nature of the store's business. A representative from a wholesale supplier for the store testified that most of the products his company sold to the store were produced outside of Iowa. The supplier's warehouse, however, was located in Iowa. A beverage supplier's representative testified that the products his company supplied to the store were produced in Wisconsin. The store owners' son, an employee of the store, testified that the store sold a variety of goods and rented and sold movies. Movie rental records showed that many of the store's customers were from outside Iowa. It is undisputed that the store is a stand-alone store and not part of a larger chain. Relevant to the issue of the interstate nature of the store is the fact that Dubuque is located at the tri-state border of Iowa, Illinois, and Wisconsin. The owners' son testified that the store is about seventeen blocks from the border and that, although the store is not located on an interstate highway, the store is located in an area of Dubuque frequented by tourists. He also stated that Dubuque is a confusing town such that many people from out-of-town stop at the store to ask for directions. The store has not sold gasoline since the 1980s.

Finally, an ATF firearms expert for the prosecution testified as to the issue of whether the firearm had traveled in interstate commerce. He stated that he was unaware of any firearms manufacturers in the state of Iowa, other than custom manufacturers of collectible long guns, and, therefore, if the object Wilson brandished during the robbery was a firearm, it had to have arrived in Iowa by crossing state lines. Based on the tape, he characterized the object as black rather than silver. He also stated that, based on the tape and without examining the object, he could not tell if the object was firearm or a non-functional replica.

Before trial, both defendants moved unsuccessfully to suppress the out-of-court identification evidence. After trial, both defendants moved unsuccessfully for acquittal. Also, Dobbs moved repeatedly to have a different attorney appointed. An assistant federal public defender initially represented Dobbs. She had to withdraw from the case for reasons unrelated to Dobbs, and the court appointed a replacement attorney. Dobbs had complained about the representation provided by the federal public defender and later complained about replacement counsel. In particular, he complained that replacement counsel did not use an investigator and would not file various motions that Dobbs wanted filed. Ultimately, Dobbs filed a lawsuit against replacement counsel in state court. Replacement counsel requested to be removed from the case due to an inability to work with Dobbs, but the district court denied the request. The court found that Dobbs was being obstreperous and that the state court action and requested motion filings were frivolous and therefore not fatal to effective representation. Finally, the court stated that even if it were to replace the replacement counsel, the same difficulties in working with Dobbs would simply be imposed on a different appointed attorney. Notwithstanding the complaints, state court lawsuit, and difficult behavior, Dobbs stated to the court following trial that he was pleased with the representation he received from replacement counsel.²

II.

Dobbs argues that the evidence against him was...