U.S. v. Griffin

• Decision Date: 16 July 2007
• Docket Number: No. 05-4177.,No. 05-4178.,05-4177.,05-4178.
• Citation: 493 F.3d 856
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randy GRIFFIN and Stanley Lomax, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

493 F.3d 856

UNITED STATES of America, Plaintiff-Appellee, v. Randy GRIFFIN and Stanley Lomax, Defendants-Appellants.

No. 05-4177.

No. 05-4178.

United States Court of Appeals, Seventh Circuit.

Argued October 30, 2006.

Decided July 16, 2007.

Brian Hayes (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Standish E. Willis (argued), Chicago, IL, for Defendant-Appellant.

Brendan Shiller (argued), Chicago, IL, for Defendant-Appellant.

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

This case arises out of a string of armed robberies committed in 2002 and 2003. After two of the conspiracy's leaders testified at trial, a jury convicted Randy Griffin and Stanley Lomax of robbery, conspiracy to commit robbery, and using, possessing, and brandishing or discharging a firearm. Although Lomax only participated in one robbery, we find that this participation along with his travel to scout other targets and willingness to participate in additional robberies provided sufficient evidence to support his conspiracy conviction. We find no merit in the appellants' other challenges, save for Griffin's challenge to his sentence. Because the district court attached a presumption of reasonableness to a within-Guidelines sentence in his case, and the record does not reflect that Griffin would have received the same sentence absent that presumption, the government agrees that we must remand his case for resentencing.

I. BACKGROUND

During 2002 and 2003, a group led by Sidney Upchurch, Travis Hoffman, and Bobby Joe Wynn committed more than a dozen armed robberies of currency exchanges and other businesses in the greater Chicago area. This was not a fly-by-night operation. Upchurch identified locations to rob and scouted out the establishments in advance, watching the employees as they came and went. In some instances, he obtained personal information about the businesses' employees, including the license plate numbers of their cars. At times, Upchurch would also pay Chicago Police Department officers (later indicted in a separate case) to obtain the addresses associated with the license plates. Upchurch's associates used that information during the subsequent robberies by telling, for example, currency exchange employees that other associates were at the employee's home with the employee's family members (though the associates were not actually there), and then naming the home's exact address.

Three robberies are relevant to this appeal. On September 11, 2003, Upchurch, Appellant Randy Griffin, Hoffman, and Wynn headed to the Richton Park Currency Exchange. When a squad car arrived in the vicinity, the group scrapped their initial plan of entering the premises as the employees closed the business. Instead, the group followed an employee home, and Wynn abducted her at gunpoint. He also obtained the employee's keys, and Griffin drove the employee's car to the currency exchange. There, Wynn forced the employee to open the safe, and Upchurch and Griffin retrieved bags of money. Back at Upchurch's home, the four participants split the robbery's proceeds of approximately $107,101 (and also gave a portion to Hoffman's mother, who pursuant to Upchurch's plan had parked her car next to his with the thought that a single car in the parking lot would have looked suspicious). Griffin commented that the robbery had been "easy money" and told Upchurch he was available to commit more robberies; when Wynn told Griffin there might be more jobs, Griffin responded that he wanted to participate.

On September 26, 2003, Hoffman and Appellant Stanley Lomax robbed the 159th and Laramie Currency Exchange in Oak Forest, Illinois of approximately $1300, with Upchurch acting as the lookout. That morning, Upchurch, Hoffman, Wynn and a person named "Demarco" headed to the currency exchange with the intention of robbing it, but they did not do so because of heavy traffic in the area. When Upchurch attempted to gather the crew again that evening, Demarco and Wynn were not available. Upchurch telephoned Hoffman and informed him the robbery would not take place that day, but Hoffman responded that Lomax was with him and could do the job. Lomax then spoke with Upchurch over the telephone and told him he could handle the robbery. The three met that evening near the currency exchange. With Upchurch acting as the lookout, Lomax and Hoffman, armed with guns, overpowered employees Gina Garcia and Rosa Ortega, entered the currency exchange, and forced Garcia to open the safe. Garcia and Ortega heard gun shots as Lomax and Hoffman left the premises.

Sometime within the next month, Lomax rode with Upchurch, Hoffman, Wynn and Robert Jones to scout out other robbery targets. Early one morning, the group traveled to a currency exchange on Janes Street in Downers Grove, Illinois, with plans of robbing it. The robbery had to be called off, however, when Jones parked the car in the wrong location. On the same trip, the group also looked at a currency exchange in Homer Glen, Illinois, before returning to Chicago. Although Hoffman and Lomax wanted to rob this currency exchange, Upchurch told them they could not.

In late October, Griffin, Upchurch, and Wynn drove to Downers Grove, Illinois with the intention of robbing the Woodridge Currency Exchange. Although the three abandoned their plan to rob the establishment that day, Griffin, Upchurch, Hoffman, Michael Bowman, and a person known as "Stacks" returned on November 4. The group robbed the currency exchange of about $3,540. They did so intending, at least in part, to obtain money to bond Wynn, then incarcerated, out of jail.

The government charged nine defendants in a twenty-six count indictment, including a charge that thirteen currency exchange robberies took place as part of a single conspiracy. Seven of the nine defendants pled guilty, with only Griffin and Lomax proceeding to trial. There, Upchurch and Wynn, law enforcement officials, and robbery victims testified for the government. A jury convicted Griffin and Lomax on all counts. Griffin was convicted of conspiring to commit robbery in violation of 18 U.S.C. § 1951; two counts of robbery in violation of 18 U.S.C. §§ 1951(a) and 2; and two counts of using, carrying, and brandishing a firearm in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. The jury found Lomax guilty of conspiring to commit robbery in violation of 18 U.S.C. § 1951; robbery in violation of 18 U.S.C. §§ 1951(a) and 2; and using, carrying, and discharging a firearm in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. On August 29, 2005, the district court sentenced Griffin to 524 months' imprisonment and three years of supervised release. Lomax received a sentence of 308 months' imprisonment and three years of supervised release. Both appeal.

II. ANALYSIS

A. Interstate Commerce

First, we address the appellants' argument that the robberies did not have an impact on interstate commerce sufficient to support their convictions under the Hobbs Act, 18 U.S.C. § 1951(a). As an initial matter, we note that although the defendants contend that accepting their argument means this court lacks "subject matter jurisdiction," the interstate commerce requirement in the Hobbs Act does not implicate our power to decide this case. See United States v. Rogers, 270 F.3d 1076, 1078 (7th Cir.2001); United States v. Martin, 147 F.3d 529, 531-32 (7th Cir. 1998). Rather, establishing the requisite nexus with interstate commerce is an essential element of the crime. See Martin, 147 F.3d at 531-32. As a result, we view the evidence in the light most favorable to the government and will respect the jury's verdict so long as any rational trier of fact could have found the interstate commerce element beyond a reasonable doubt. United States v. Re, 401 F.3d 828, 835 (7th Cir.2005).

The appellants were each convicted of conspiring to commit robbery and robbery in violation of 18 U.S.C. § 1951(a). As relevant here, that section of the Hobbs Act prohibits robbery that "in any way or degree obstructs, delays, or affects commerce." Griffin and Lomax maintain that the actions for which they stood trial affected purely local commerce, not interstate commerce as the statute requires. But we have repeatedly held that the government need only prove a de minimis potential impact on interstate commerce to prove a Hobbs Act violation, see, e.g., United States v. Sutton, 337 F.3d 792, 796 (7th Cir.2003); United States v. Peterson, 236 F.3d 848, 851-52 (7th Cir.2001), so long as "[t]he class of transactions or the types of businesses affected . . . have a substantial connection to interstate commerce, such that interference with that class of transactions would have a substantial effect on commerce—even if the specific events prosecuted do not, themselves, have a substantial effect on interstate commerce." Sutton, 337 F.3d at 796 n. 2. The transactions of banks meet that requirement, id., and we are satisfied that the transactions of the currency exchanges here do as well. And we have already rejected the appellants' argument that the Supreme Court's decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), mandate a higher standard. Sutton, 337 F.3d at 796; Peterson, 236 F.3d at 851-52.

Here, Griffin and Lomax stipulated that the robberies depleted the assets of the currency exchanges they robbed, that the exchanges conducted multiple financial transactions that resulted in the transfer of funds between Illinois and other states (including cashing checks issued by out-of-state banks and processing bills for customers resulting in payments transmitted out-of-state), and that the businesses purchased supplies from out-of-state companies. The stipulation also stated that the stolen funds would have been available for such uses and purposes if not for the...