U.S. v. Gray, No. 00-11491

• Citation: 260 F.3d 1267
• Decision Date: 07 August 2001
• Docket Number: No. 00-11491
• Parties: (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SAMUEL GRAY, a.k.a. "Pokey", Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1267

260 F.3d 1267 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SAMUEL GRAY, a.k.a. "Pokey", Defendant-Appellant.

No. 00-11491

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

August 7, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, MARCUS and WOOD^*, Circuit Judges.

MARCUS, Circuit Judge:

Defendant Samuel Gray appeals his conviction and sentence for Hobbs Act robbery, 18 U.S.C. § 1951, and for using and carrying a firearm during the robbery, 18 U.S.C. § 924(c). Gray's principal argument is that the Government failed to prove that the conduct giving rise to the robbery charge had a sufficient effect on interstate commerce, as required by the Hobbs Act. Gray basically acknowledges that, under binding Eleventh Circuit precedent, the Government need only show that the defendant's conduct had a minimal effect on commerce. According to Gray, however, recent Supreme Court doctrine effectively overrules our precedent and requires proof beyond a reasonable doubt of a substantial effect on commerce. See United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000); see also Jones v. United States, 529 U.S. 848, 120 S. Ct. 1904 (2000). Gray also contends that, even under the minimal effect standard, the Government failed to meet its burden. In addition to these claims regarding the Hobbs Act conviction, Gray raises several purely legal challenges to his indictment and sentencing.

Having carefully considered the parties' arguments and the relevant portions of the record, we find no reversible error, and therefore affirm. We also conclude that nothing in Morrison or Jones alters our previous conclusion that, to convict a defendant for Hobbs Act robbery, the Government must prove a minimal, but not substantial, effect on interstate commerce.

I.

The following facts were established at trial. On February 4, 1999, a robbery occurred at the Church's Chicken restaurant at 629 Cascade Avenue in Atlanta. Several employees of the restaurant identified Gray as the robber. They testified that Gray displayed a handgun during the robbery. They also testified that, after entering the restaurant, Gray vaulted over a counter, threw the top of a cash register on the floor, seized the register's money drawer, then jumped back over the counter and fled with the drawer and its contents.

In the wake of the robbery, the restaurant closed its doors for up to several hours while police interviewed witnesses in the dining area (although the drive-in window remained open). The incident and subsequent closure of the dining area occurred around 5 p.m., a relatively busy period for the restaurant. Although the amount of cash in the stolen money drawer was not established at trial, it was uncontested that the drawer was not empty and did contain cash. The Vice President of the company that owns the restaurant testified that the restaurant does significant business in interstate commerce, purchasing the vast majority of its food products (other than chicken), uniforms, and equipment from suppliers in states other than Georgia.

On July 27, 1999, a federal grand jury indicted Gray on two charges relating to the robbery. Count I of the indictment charged Gray with a violation of the Hobbs Act, 18 U.S.C. § 1951, and alleged that he unlawfully obstructed, delayed, and affected interstate commerce by taking from the restaurant approximately $300 and the money drawer. Count II charged Gray with knowingly "us[ing] and carry[ing] a firearm" during and in relation to the robbery, in violation of 18 U.S.C. § 924(c).

Before trial, the Government served a sentencing information setting forth Gray's prior convictions -- a 1990 conviction on two counts of robbery and a 1979 conviction for rape -- and indicated its intent to seek a mandatory life sentence under 18 U.S.C. § 3559(c)(1), the so-called "three strikes" statute.¹ The case was tried to a jury on November 9-10, 1999. At the close of the Government's case, and again at the close of the evidence, Gray moved unsuccessfully for entry of a judgment of acquittal. The jury convicted Gray on all counts.

The PSI concluded that Gray was subject to a mandatory life sentence under § 3559(c)(1) by virtue of his conviction on Count I. The PSI noted Gray's two prior convictions, and also noted that Gray had used a dangerous weapon (a screwdriver) as an offensive weapon in the robberies giving rise to his 1990 conviction. The PSI concluded as well that Gray was subject to a consecutive seven-year sentence on Count II because he had brandished a firearm during the robbery, see 18 U.S.C § 924(c)(1)(A)(ii), and additionally that Gray was liable for restitution.

Gray raised multiple objections to the PSI. Among other things, Gray asserted that § 3559(c)(1) is unconstitutional to the extent it puts the burden on the defendant to prove by clear and convincing evidence that a prior robbery conviction should not count as a "strike" because no dangerous weapon was used. See 18 U.S.C. § 3559(c)(3)(A). Gray also asserted that he was subject to only a five-year sentence on Count II because the indictment did not allege expressly, and the Government did not prove to the jury, that he brandished a firearm during the robbery giving rise to this case. The district court rejected these arguments.

At the ensuing sentencing hearing, Gray testified that he had not used a screwdriver or any other weapon during the 1989 robberies. On cross-examination, however, Gray admitted that, during entry of his guilty plea to the 1989 robberies, the prosecutor stated the facts of the case, including the fact that the Gray had held up the victim of the second robbery with a screwdriver. Gray further admitted that he responded "Yes" when asked by the court taking his plea whether the facts stated by the prosecutor were correct. The Government also introduced testimony from the police officer who apprehended Gray after the second robbery. The officer recounted witness statements indicating that Gray had used a screwdriver in both of the robberies for which he was arrested in 1989.

The district court ultimately sentenced Gray in accordance with the PSI, finding that the robberies giving rise to the 1990 conviction involved a dangerous weapon and therefore the conviction was a "strike" for purposes of § 3559(c)(1). Pursuant to that finding, the Court imposed a life sentence on Count I, and further imposed a consecutive seven-year sentence on Count II. The court also ordered the payment of $3,600 in restitution, based on testimony at the sentencing hearing that the stolen money drawer contained $130-150 in cash and the cash register damaged during the robbery had cost $3,240.

II.

Gray raises four issues on appeal. First, he contends that the district court should have granted his motion for acquittal on the Hobbs Act charge because the Government failed to introduce any evidence that his conduct had the required effect on interstate commerce. Second, he asserts that § 3559(c)(3)(A) -- a portion of the "three strikes" statute -- unconstitutionally places the burden on the defendant to prove by clear and convincing evidence that no dangerous weapon was used in connection with a robbery conviction that otherwise would trigger a mandatory life sentence. Third, he argues that the sentence enhancement of § 924(c)(1)(A)(ii) for "brandish[ing]" a firearm is inapplicable because that specific allegation must be, but was not, set forth in the indictment and proved at trial. Finally, he contends that Count I of the indictment was defective because it failed to allege mens rea, which he says is an essential element of a Hobbs Act charge.

We review the first three of these issues de novo. See, e.g., United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001) ("Whether sufficient evidence was presented at trial to support appellants' convictions is a question of law subject to de novo review."); United States v. Pistons, 177 F.3d 957, 958 (11th Cir. 1999) ("The interpretation of a statute is a question of law subject to de novo review.");United States v. Osburn, 955 F.2d 1500, 1503 (11th Cir. 1992) (constitutionality of statute is reviewed de novo). The fourth issue was not raised in the district court and therefore, as discussed below, our review is constrained. See United States v. Adams, 83 F.3d 1371, 1375 (11th Cir. 1996).

III.

We first address Gray's argument that the Government failed to prove the effect on interstate commerce required by the Hobbs Act. Gray does not dispute that, under this Circuit's binding precedent, a conviction for Hobbs Act robbery may be sustained if there is proof that the defendant's conduct had even a minimal effect on interstate commerce. See, e.g., United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000) ("The government needs only to establish a minimal effect on interstate commerce to support a violation of the Hobbs Act.") (citingUnited States v. Guerra, 164 F.3d 1358, 1360 (11th Cir. 1999) and United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir. 1997)). Gray contends, however, that recent Supreme Court doctrine overrules our precedent. Gray also contends that, even under our current precedent, the Government in this case failed to prove a minimal effect on commerce. For the reasons stated below, we reject both of these arguments.

The Hobbs Act provides that "[w]hoever 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 . . . shall be fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a). The Act broadly defines "commerce" as being "commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of...